Skip to main content

tv   Key Capitol Hill Hearings  CSPAN  December 15, 2014 12:00pm-2:01pm EST

12:00 pm
for our c-span audience to treat us your questions. tweet us your questions. by the end of his days, jefferson was questioning aboutls, as we will learn in our final talk of the evening. in that sense, what was pain and and jefferson's alternative? did they believe there should be actual revolution? will tell you -- >> i will tell you, one of the things that becomes illuminated when you think about that question, they both thought if you let democracy be democratic enough, these kinds of mistakes
12:01 pm
won't happen. really if the people rule, if the democratic system is answerable enough, if it does not have all of these levers and barriers to the people's will being stressed, it will express the public will, and that will mean it is a legitimate system of government. -- paine asserted. i think jefferson was more careful about this. it will also mean the people comply to be governed with the technical capacity society. one of the fascinating things is this combination of democracy with a technocrat government. the early progressives -- there were many more mechanisms for direct democracy. people should be able to make their views known through referenda, they should be
12:02 pm
arresting jesses -- justices, the constitutional system, i think it is fair to say, is opposed to both of these. it does not trust the people. the constitution does not trust anybody. let's assume everybody is wrong. what does a legitimate government look like then? i think that is one of the best things about the constitution. it is safe to say that everybody is wrong. running a country is a very cop located thing. it is likely that everybody in a public debate is at least partially wrong. this is certainly drawn from the view that the potential for error is much greater than the potential for wisdom. to protect ourselves from the further much more than we enable ourselves to benefit from the latter. expresses that
12:03 pm
beautifully -- the mistrust of human nature when it comes to power, the desire to create a government energetic enough to achieve aims, but limited enough to permit liberty. this leads me to ask something that i am curious about. did madison read burke? burke was embracing paine. >> madison was very familiar writings on america. i do not have any evidence where madison read burke on france, where burke is much more conservative and forceful about concerns about -- frankly, jefferson's approach to liberalism and democracy. madison's view changes, i think it is scared to say, or
12:04 pm
imprecise as different times in -- i think it is atr to say, or emphasizes different times in his career. he is mysterious. he does not completely contradict himself, but i think madison at times is in very different places. >> you mentioned france. pain's support for the revolution was based on paine's strong concern. in this matter, was burke actually correct >> the -- was actually correct? the french revolution was much more radical than the american revolution. was not anrevolution argument between two different kinds of liberalism. it was an attempt to put into place in a real-time and a real
12:05 pm
place a very radical version of the liberal idea. saw in this the death of liberalism. he thought radicalism would make it impossible for liberal society to function and develop and the french revolutionaries by breaking with the past, by throwing away all of their inheritance and really trying to start from scratch on principle alone would end up a disaster, and there is a famous passage in predictswhere burke what will happen. and what he predicts is essentially -- because it is impossible for these principles to actually function in practice, the french will turn on themselves and create an opportunity for a military over and thiske radical revolution will and with the end of liberalism. , thes easy to see it arrival of napoleon at the end asthe revolutionary period,
12:06 pm
burke being right. he was not completely right in france. it planted seeds that have not gone away and contemporary modern thought looks to. but i think he was largely right about how that radicalism would play out in the life of an actual society. was much more optimistic. he said, the principles are right. it will result in a working, liberal society. it certainly seems to not have turned out that way, and paine saw that himself. he was in france for the entirety of the french revolution. at the end of it, he was in prison. he was in prison because he was friendly with the left radical and he found himself in prison with a lot of his friends. he spent more time in prison than he had to because he made enemies in america and the american ambassador refused him,
12:07 pm
basically. they said, paine is an american. you can take him if you want. he said, no thank you. it was not until james monroe was made the ambassador that released from prison. he saw what the other side of the revolution look like. in 1806 he gave a speech about france. he was back in america by then. still he was saying, the principles were right. if only they lived up to the principles. things we heard from people in the soviet union, for example, thrown out by one faction of people civics -- a people civics for another. the principles were right. they just did not do it right. ine never gave up on that train. certainly in britain, burke was understood to have been right
12:08 pm
being worried about france. was concerned about what would happen to his remains, as was burke. me the remarkable story about how they both tried to control where they were buried. >> the story is almost more symbolic then i know what to do with. at the end of their lives, both made strangene requests about their remains. burke died in 1797. the french revolution was till very much a living thing and he was worried still that the ideas of the revolution would spread to britain. and he was concerned that the champions of those ideas would see him as their enemy and would basically take his body out of the grave. he did not want to be buried in the family plot.
12:09 pm
he did not want his lot to be that of his son who died before him or his wife, who was still alive but to be married in the -- buried in the same spot. he said on what would end up being the last day of his life -- he had a fever. his family and friends after he died conferred about this and decided not to do it. they put him in the family plot anyway. he is still buried there. the level of concern was extraordinary. he was sure that if the radicals one in britain, he would end up put on aombed and pike. ,his kind of thing had happened of course. the british had done it to one of their kings. it was not that crazy. died in 1809 in the united states. by then he had written a book called "the age of reason" which
12:10 pm
is basically an attack on christianity. it was unwise, let's say. [laughter] he wrote it in france, and he came back and found for all of the important role that he played in the american revolution, this book was the only thing anyone knew about him. it caused him no end of trouble. deathbed,on his actually in his will -- he asked to be buried in a quaker cemetery. his father had been a quaker. he had given it up. he is what we would now call an atheist. he was very upfront about it. had written a book about it. but he asked to be buried in a quaker cemetery. his logic was very similar. he thought the kind of people who might have it against him, who might want to cause trouble after he died wouldn't do it in a christian cemetery. his father had been a quaker. died, itrs, after he was in his will, they said no.
12:11 pm
[laughter] paine and that being buried on his farm in new rochelle, in new york. his fear was not crazy, because his body was removed from his grave. as it turns out, by a great who wanted to take the body to britain and erect a memorial to his great hero in the town where paine had been born. the british government also did not like tom paine because he did not like them very much. he had written nasty things about the king and the monarchy. the person who took his body did not think to ask for permission before. he asked for permission after and was denied permission. remains were lost. nobody knows where they are. there have been all kinds of efforts, as you can imagine, from scholars to recover them.
12:12 pm
in the 20th century, there were many attempts. nobody knows. ne has never been buried, or at least no one knows where he is. both of these people worried about their legacies, i think it is safe to say. both have very long and great legacies. both remain controversial, something in the way they might imagine, the debate they were so involved in remain live debates. maybe they were right to worry. because you are paranoid does not mean they are not out to get you. [laughter] was charged in britain with seditious libel. why he was denied to be buried. three great questions. here they are. we talked about burke on madison.
12:13 pm
the question is how did burke and paine influenced jefferson? admirerrson was a great of burke's writings on the american revolution. he was not an admirer of his writings on the french revolution. jefferson was a fan of the french revolution, almost to its end. friend of it in any case. he took burke's writings -- there is a letter, i don't know who it was too. it might have been to john adams in which jefferson says he is much less worried about the revolution in france than he is worried about the revolution in burke. to beds work contradicting himself, supporting the american revolution, but so against the french revolution. even the debate between burke followed very
12:14 pm
closely in america. the debate about the french revolution had a role in launching the american party. it was a very controversial question here. burke's formulation of the argument against the revolution was very important -- for hamilton, for example. jefferson very adamantly disagreed with burke's view of france. he was a friend of paine, a close friend during the revolutionary years. greatught that paine's pamphlet "common sense" was extremely important and should be widely distributed. job as theine get a secretary to the committee of foreign relations for the continental congress. he was a kind of patron of tom paine in some ways. came back to america after france, jefferson was president. he was wary with being associated with paine's views on
12:15 pm
religion, so did not hang out with him much. but he helps them get a job. the two knew each other well. >> superb. is that important rule we end on time, so i'm afraid we will have to skip the remaining questions. ladies and gentlemen, during our lunch break, we will reconvene at 1:15. originalout one of the bills of rights. c-span audience, get on a train. get on a plane. if you can't make it today, this will be displayed for the next three years. ladies and gentlemen, please join me in thanking -- [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captioning performed by national captioning institute]
12:16 pm
[captions copyright national cable satellite corp. 2014] >> c-span live today in philadelphia for a form on the bill of rights. the moderator, james rosen, is the president and ceo of the national constitution center, and we will be hearing about liberty versus democracy and the constitution with the authors of the book "the conscience of the constitution." today's forum will close with , looking conversation at the longest-serving chief justice in american history, john marshall. in about an hour we will be back here at the constitution center for the bill of rights festival.
12:17 pm
in the meantime, we will take a look at former nsa contractor edward snowden. he video conference from russia to a cato institute meeting and he answered questions for about an hour. are bringing -- we want him to be able to be heard as well as to hear us -- obviously we had a year of disclosures that ignited a very fierce debate. for someone who paid such a high price, do you feel satisfied with what hasn't folded, what you have seen? maybe a proposal, getting
12:18 pm
something past with a presidential directive. are you satisfied with the reaction you have had? >> can everyone hear me? >> hello. >> ok. i am broadly satisfied with what has happened. we have seen an extraordinary change in public awareness. openness and ial would say, innovative spirit in american government. not by choice. know, they decided they would be more transparent in the future because they recognized these policies of overclassification, over secrecy are not helpful and are in an act damaging. i think we should really scrutinize -- this is not just -- government's shall we say not just encouraging things we
12:19 pm
have seen in the court systems. we are talking about the beneficial things we're seeing in the united states court system. we have the first open court review programs. you can call them unconstitutional. justice struck down version oftional smith the maryland. said it was not allowable. the united nations issued a report on mass surveillance, not permissible under any circumstances. it is a contradiction of our sort of fundamental values and an inherent violation, but beyond that, we should see a real change that is happening outside congress, outside the
12:20 pm
agency entirely. this. make sure i can see the we have seen on technological side, the fabric of the internet where we need to create a public awareness of the problem, technologists academics all over the world came together and they said this is a concern. how do we solve these problems, how do we make sure we do not have to deal with this in the future, and you see them taking action, taking steps. you do not see them retreat from these rights. this is a poll -- they do not have a dog in the fight. this is why i used the slide. and theyan example found 60% around the world had
12:21 pm
heard of the revelations in the last year. of those 60%, they have taken active steps to improve communications online. it was interesting how the media interpreted this. if people are in the minority, they must not care that much. but when you do the math on what global60% of the world's internet users is, that is 702 million people around the world who are now safe to dave they were just a year and a half ago. -- safer today than they were just a year and a half ago. and this is i think really where we begin to see the framework of how we can move forward in the absence of political reform, in the absence
12:22 pm
of legal reform, and this is good. because what we've seen politically around the world throughout the development in history is that politics is about power. when you have people in great power positions, when you have super states, they will not cede any sort of authority that they've claimed back to the public, back to civil society, unless they are afraid of a more undercutting alternative. and this is really what is setting us up to really have a sort of renaissance of security and of liberty in the way we associate, the way we speak, the way we research online. it's critical. when we think about reforms, we think about the challenges, these are big picture problems, but at the same time these are only the things happening within the united states. and the policies of the national security agency and central intelligence agency and the f.b.i., as bad as they've been in regard to respecting the boundaries of our rights, they are good relative to many governments around the world. so we have to think about not just how to protect the rights
12:23 pm
of americans, but protect the rights of individuals around the world who live under regimes who are much less liberal and much more authoritarian. the only way we can do that is to ensure that there are international standards that are well agreed upon as to what behavior is proper and improper. we have court mechanisms that can enforce these and, ultimately, fundamentally, we can enforce these through technology on the basis of all of this i would say i'm tremendously satisfied. >> julia? >> well, hello. it is great to meet you, because you did a great job of marketing my book for me. i was already half way through writing it when your revelations came out, and i benefited greatly from that, so thank you. also, i want to say one other thing. i don't know if anyone has seen "citizen ford" but in case you were not convinced that edward snowden was brave, appearing in your bathrobe is really a brave move in a documentary film, so if you haven't seen it, there is
12:24 pm
a bathrobe scene. at any rate -- >> entirely unflattering. >> you know, everyone makes their own choice about that. we could have a bathrobe up or down vote, you know. so, you know, i'm a huge fan of encryption and i try to use as much encryption as possible. i think that you're right that there is a renaissance of encryption programs going on. but i am concerned about an arms race. so if i, a citizen, am trying to beat huge agencies trying to defeat my encryption and i'm trying to keep one step ahead of them, i feel this is something where i'm under funded. right? i'm concerned that i'm not going to win that. i think we have some evidence, actually, that the arms race is escalating. i would point to one thing that really disturbs me which is we've seen a lot more spy tactics that involve spoofing, we saw the d.e.a. spoofing a facebook page. we saw the f.b.i.
12:25 pm
spoofing an associated press article. we saw the n.s.a. spoofing a linked-in page. we've seen commercial hacking companies spoofing adobe updates. and so i would like to hear what you have to say about, can we win this race in a world where we might not be able to trust the contents that we see in front of us? are we going to enter a world we can't authenticate anything we see online? >> this is a real challenge. computer security is a field rapidly expanding i think much more so than almost any other academic discipline. it is a fertile field. computers are so fundamentally so insecure today it is impossible to rely on them and trust them fully. many reasons i was successful is
12:26 pm
because i did not have to rely on any particular computer or any particular communication to remain private. this is not a world we want. this is the reason we're having the debate and people are fighting in countries around the world to push back against this kind of invasiveness, this kind of truth in policies, also the -- intrusive policies, but also the state of play in terms of our security around the world. now, there are a number of business interests that have been referenced by some of the other panelists. the representative from the aclu, matt greene, john hopkins professor, and many others who referenced the fact that there are commercial incentives today to find vulnerabilities, weaknesses in our system. and rather than work to fix those, rather than work to secure our systems, they actually leave those open. they will sell them to the highest bidder and use those to enable the exact kind of masquerade attacks, spoofing attacks, phishing attacks you
12:27 pm
are describing. more concerningly, we see agencies of government, for example, the national security agency, which has secured the -- security in its name, actually using this same paradigm to weaken our own infrastructure. we have seen them go to standards bodies and spy on them and look for vulnerabilities and rather than fix those standards, rather than correct those flaws, they leave them in to try to exploit them and in other cases look at where they can introduce them to make them less secure overall in certain vulnerabilities where they did not exist before so they could exploit them and gain access. we can understand the intentions for why they might want to seek to do this. it would give them access in novel places, places previously denied, but at the same time the same vulnerabilities can be used against the american government, american people, allies and other citizens around the world.
12:28 pm
but also google has had a pretty big presence here. it's not just about google. it is about every american service around the world and product. if we're creating phones that have inherent insecurities, we're creating flaws in our standards and protocols that every interoperable system relies upon, we're weakening the basis of our modern economy, because america relies more on the internet for productivity, for trade, for economic gain and comparative advantage than any other nation on earth and, yes, it may give us some sort of comparative advantage in spying on china, once they discover it, they'll be able to use the same thing against us and even if not them, even if it's latin america, russia, france, and they begin to do the same thing, we quickly learn that being able to spy on other country,
12:29 pm
particularly based on how we restrict the uses of the product of intelligence, for example, the american government is very fond of saying recently that we don't give economic secrets to private companies, we find out that the benefit of having secrets on other countries is worth less than the benefit they gain from knowing ours because we put more into research and development efforts than other countries do comparatively. we put more into education and research than other countries do. we put more in military spending than other countries do. so if everyone is insecure at an equal level we don't benefit because we have the best spy agency. we actually lose because we are more reliant on security than everyone else. >> edward, you alluded to and julia was alluding to also the
12:30 pm
spoofing and the sort of suite of malware tools collectively referred to as quantum. one of the stories that flow from your disclosures that i found most troubling was related to that and the idea of a system apparently called turbine that is delivering these in an automated way, to think of it very crudely, an a.i. for hacking that lives on the internet backbone and pushes out malware to thousands and potentially hundreds of thousands of target computers, categories of target computers and the goal is to eventually be able to sort of automatically compromise millions of computers around the world. that was -- i was surprised at sort of how little -- i don't know if anyone here is aware of turbine, i guess this is not a representative audience but i don't know how many people heard that before. it seems like of all of this sort of stunning stuff, people
12:31 pm
have heard a fair amount about the 215 telephony program and maybe something about prism but a lot of the other stuff, i guess i'm surprised that it hasn't gone as much -- hasn't gotten as much attention as the earlier disclosures. i'm wondering what the -- what have you thought deserved a few more stories and hasn't gotten that much attention and what bothers you most? >> right. this could go on for days as opposed to the short time we have here but really what you're touching on is a fundamental problem that we discussed earlier. we've got a few representatives in congress trying to protect and promote the interests of millions of americans, but the classification authorities who provide the clearances, offices like the d.n.i., say their staff can't be cleared.
12:32 pm
this is problematic because people in d.n.i., people at c.i.a., at the n.s.a., say i wish i had this and that. i'd want a private secretary, too. they don't represent millions of people. they represent small agencies. the same dynamic happens with the press. we have a few editors, a few reporters who are not grounded. they don't have a background in technology. they don't have ph.d's in computer science. they don't know what stories matter and which don't. in technical reporting, in main stream news at the "new york times," "the washington post," it's incredibly a modern thing. this hasn't happened before. so one of the reasons we don't see the media real keen on stories that are of critical importance, is because they don't realize they are of critical importance. and because of this, we're increasingly reliant on the technical community to kind of do this for us and represent us. now, this is increasing the dangers over time i believe because what we see is an increasingly disempowered
12:33 pm
citizen class and even in politics, because they have no idea what is going on that matters and an increasing empowerment of people who have sort of an elite, technological diversity. -- literacy. i think this is dangerous over time because you will see a concentration of power around the small groups, small individuals, who can increasingly impact society in greater and greater ways. i, personally, am an example of this. i'm not the world's expert in technology but because i was where i was, because i saw massive crimes against the constitution happening on an unprecedented scale, and i had the technological skills and capability to do something about it, i was able to change the conversation in a way, make some small contribution to the public that has really had an outside impact. -- outsized impact. we do not want our government to rely on this model because that relies on the actions of the
12:34 pm
individuals. this is inherently dangerous. back to the basic question, stories that have been overlooked, one of the very significant stories is the fact that all of this information we're collecting in bulk, bulk collection, the government's euphemism for mass surveillance, the unreasonable seizure that is forbidden by the fourth amendment, these programs, mass collection, the 215's and what not, the n.s.a. and the dni and so forth assert this is okay because they apply what is called minimalization. they say if we see you're a u.s. citizen we'll remove your name and replace it with a pseudonym. we will take measures like this and say an analyst can't target the u.s. citizen though we can collect all of your information and read all of your information.
12:35 pm
we can't look at you. we have to look at who you're talking to. that kind of thing. but this is not done when we're sharing this with overseas allies in many cases. there was a story that was run i believe last year, late last year, that showed that we were sharing unminimized information -- raw signals of intelligence, that included information on u.s. political figures, on judges, on officials across the spectrum, private industry, private businesses, private individuals -- their private records were being shared en masse with israel. this did not get a lot of play in the mainstream press in the u.s. in the "new york times," the public editor later investigated and said why. this is a story of public importance. there wasn't a really satisfactory answer. one of the editors previously worked for the "l.a. times" and also sat on this
12:36 pm
story. we also saw a story last year in "the huffington post" that found that the national security agency documents reflected that they were intercepting, collecting, and planning to use information on individuals' pornography habits to discredit them in their communities and in public on the basis of the political views they held. now, these individuals were islamists. their politics were considered radical. so we can understand why this sort of interest would be there. well, we are preventing radicalization. but it also said these individuals were not suspected to be associated with violence. these were not actually terrorists. these were people who on the basis of secret judgments made by a secret agency with no public oversight and with no authorizing legislation had decided that a certain brand of political viewpoints would authorize the intrusive monitoring collection and
12:37 pm
eventual disbursement of your private records related to your sexual activities. this is a fundamental thing. -- this is a fundamentally un-american thing. we have to ask ourselves, why do we allow this in the first place? ok, maybe it happened, maybe mistakes were made. but how do we hold people accountable? i think this follows to a fundamental point. i don't want to be on bob. he came to the forum. he is kind of what we've got. he is doing a hard job. we all know he is trying to do his best. he said something fundamentally concerning in regards to false testimony of james clapper. he said, that the real problem here was not that the most senior official in the united states intelligence community committed a crime in front of congress. it doesn't have to be perjury or a willful lie. giving a false statement to congress in itself, providing
12:38 pm
false testimony, is also a crime under u.s.c. 1001. i believe u.s.c. 18-1001. that false statement is itself a crime. he was not concerned about the crime and he was not concerned about the impact this had on the public. he was concerned that the question had been asked at all. this kind of paucity of concern for the public's role in the function of american government is a real danger. and i hope that this is, you know, he spoke quickly and that was not a representation of his true intent. the reality is we see this consistently and it becomes increasingly concerning, this incautious language that causes them to lose credibility, causes us to lose faith in the institution of government upon which americans must rely. he said something such as, it is
12:39 pm
indisputable that the exposures of last year caused damage. that terrorists changed their communications and we lost reporting as a result of the leaks. but the evidence on the public record shows this ness fact not -- this is in fact not the case. it is entirely contrary. there is no evidence on record that this has been caused a is a result of the disclosures made last year. now i do believe him when he asserts that, you know, some sources of intelligence have gone dark. some taps we had up are no longer functional, but this is part of the process of evidence collection. people change their route of communication all the time. as anyone knows the correlation does not imply causation. but we also know from the evidence on record there is no reason to suspect causation in the first place and there is actually no evidence for a correlation at all. al qaeda's methods changed in the same rate in the same manner
12:40 pm
in the last year they had in the years past. the only study that had ever shown anything contrary was actually done by a contractor that is funded by the central intelligence agency investment office. and so we need to be careful about these kinds of things and the representations they make. it is entirely in dispute that damage has been caused at all but the benefits of this are not in dispute. in fact, the director of national intelligence, himself, argues that it is necessarily in the public interest to know about these policies about these processes and the fact they should not have been done in the first place and the justifications being made to disclose these. how can it be we use the language of indisputeable -- we haven't reaped the benefits. the answer is politics and their understanding. this is a community that feels itself under threat but this is unnecessary. if they were more open we
12:41 pm
wouldn't have these problems in the first place. what happened last year was preventable. it was avoidable in the same way that the torture program, itself, was avoidable. i mean, one of the things that was not well understood in the torture program was that individuals throughout the central intelligence agency and other factions in the government knew these programs were wrong. on both a moral basis and a legal basis and they raised concerns about it. the second bullet point shows people were concerned about how long it went on for and the third bullet point shows that individuals were actually brought to tears as a result of being confronted with the reality of these programs. others were transferred away. others said, you know, prepare for something that's never been seen previously. this is unprecedented. and what is the response to this? these were within the agency who raised concerns.
12:42 pm
as the shows, it went into official cable traffic, which is extraordinary at the c.i.a. having worked there the only things that go into official cable traffic are things coordinated on and agreed upon by a number of individuals. typically only the chief of station in a country has the authority. the analysts write the report, the officers write the report, then they send it to their superior and his superior who talks to the round table about it and they send it to the chief of station, and then it finally goes out. they were questioning not just the legality but the utility. the questions were rejected, buried, and the head of the counterterrorism program said that these things, these concerns need to stop being put in official cable traffic, stop being put on the official record. they need to be buried because such language is not helpful. i think these are the things we as society need to think about how do we correct? how do rerestructure the incentives to ensure that when individuals have these serious concerns, when we see clearly
12:43 pm
unlawful activities occurring as is still the case today, regardless of the justifications being put forth by this, that, or the other, when you look at them on their face and they are clearly at least in dispute as to legality, how can we ensure they are protected and these decisions be made not behind closed doors but in public? >> because you mention that, it occurs to me before we move to the questions from the audience, we might give you an opportunity to direct a comment to maybe a couple members of our audience since you talked about what you regarded as illegality and the importance of mechanisms to correct for that and we have sharon weber franklin from the oversight board which is one such mechanism. while they took a fairly dim view of the 215 telephony metadata program, the 702
12:44 pm
authority used for prism, and upstream collections, the sort of general warrants that involve a single authorization and then tens of thousands of targets, oversees the task at the analyst's discretion, and we're basically satisfied with how that was being used and it seemed not to be used in an abusive way, i wonder if you were comforted looking at the findings of the board or if you think that perhaps they neglected something, something that you sort of suggest they take another look at? >> it is a challenging question because i have personally used the 702 authority in targeting and i believe the conclusions of the board specifically in regard to the value, potential productivity of the program, are accurate. it is an extraordinarily invasive authority. it does allow you to get incredible intelligence when it's used in a certain way.
12:45 pm
the real danger, because when we saw the response to the 702 report from people, it was universally derogatory to anyone with any peripheral connection to the issue, any kind of knowledge on the civil liberty issue, they looked at it in a kind of glib way, in the way that i used it which was on a target basis where you looked at individuals already suspected to have some access or nexus to this, that, or the other, particularly the prism type authorities where you're requesting content from a, from a private entity. they weren't looking at the mass applications. they weren't looking at, for example, the upstream authority in sort of the detail they should have. that is where the real danger is. there are very few people who contest we should not be able to pursue investigations using
12:46 pm
almost any -- against individuals where you can get a judge to sign a particularized warrant. benjamin witty earlier basically argued that should we have legislators involved? should we have public rules about the way we apply our surveillance capabilities because vladimir putin might know about it. i say, yes. because there is no court in the world, well, at least no court outside russia, who would not go, this individual is an agent of the foreign government. i mean, he's the head of the government. of course they will say this guy has an access to some kind of foreign intelligence value. we'll sign a warrant for him. if we know about the authorities, there is no problem whether they are public or private because he can't sort of hide. we know who he is, what his capabilities are. there is some argument to be made this is not the case with terrorists. but we have also seen that mass surveillance is not beneficial in the context of terrorism.
12:47 pm
despite all the mass surveillance that happened with programs in 2001, they did not -- all of this 215 collection, all of this internet collection, all of this stuff that's happening with retrospected search, or go through g mail boxes or facebook and i want to see the contacts, everything you wrote, the pictures, every i.p. address you ever checked in at, every device you ever used, all of these things, they did not stop the boston marathon bombings. in fact, they may have contributed to causing them because they gave a false sense of security. they made us think these individuals were not associated with terrorism. despite the fact that we had intelligence from the human sources including the russians who saw this guy going into chechnya and associating with known terrorists and said, hey, you might want to take a look at this guy, we didn't do a good job. the same thing overseas. mass surveillance did not stop the london bombings, the madrid bombings.
12:48 pm
mass surveillance has no proven track record and it should not be a part of a policy. it should not be pursued. it should not be funded. because it takes resources away from things, methods and mechanisms of investigation that we know work. and that we know are effective. this is a very timely analog to the torture case. we know that rapport building interrogations work mplet we know that becoming friends with these people and saying basically the interrogator is your advocate against your captors works. all of the intelligence we got from the program that was beneficial was gained before we applied torture techniques. and yet we did it anyway. we funded it to the tune of millions of dollars. all of these individuals and all of these officials have never been held to account for what are unambiguous war crimes. >> julia actually has a last
12:49 pm
question of her own before we turn to audience questions. >> i want to challenge you on two things actually just because i have to stand up for journalists. some of us do have some technical skills and i built a team at "the wall street journal" that had two technologists working full-time. so i agree that there is, that is not always true in every newsroom but i felt i needed to raise a flag for journalists. i guess that leads me to sort of another question, which is that i think that the decisions made about publishing these stories are in the hands of a few people and you, yourself, might not agree always, right, with what choices are made. >> right. >> and i wonder if, going back, do you think to yourself, maybe i should have sat and sifted through more carefully before handing over -- or do you feel maybe there just needs to be a wider array of technically capable journalists? i just wonder, if you could design the optimal system where
12:50 pm
would it land? >> you know, i do want to go back and second guess the reporting in hindsight. i mean, we can look at the record and see that harms have been mitigated if harms do exist they are minimal. there has been no evidence of -- despite incredible incentives to show lives lost, that occurred. but there is always the chance that things could have been done better. i can't say i made no mistakes, this was perfect. what i can say is i was very concerned about my own life. i evaluated all of the stuff coming out because i believed it was in the public interest to know it about these things, these were programs that went too far, had constitutional implications, that should not have been -- the government should not have assumed for itself these authorities behind closed doors without public
12:51 pm
debate because they limited boundaries of rights. however, you can tell from my manner of speaking, it is an issue i am passionate about. i recognize that i could be drawing a line in a radically different way than what would be considered in the public interest. it's for this reason that i worked with journalists -- journalistic institutions and i demanded that they coordinate with the government, give the government a chance to comment and say, this could cause unnecessary harm if published in this way. if you redact this sentence that's mitigated. to address those concerns and to allow them to draw the lines differently. i think by creating that system of checks and balances, which was intentionally done, that that was really the only thing i could have done, because there was no way sitting back when i was, when i was sort of operating with only the benefit of one brain and no debate department, how i could ensure that we could get the best possible outcome. i'm not sure we have the best
12:52 pm
possible outcome of all the worlds, but i think it is pretty clear to the public globally agrees this has worked out relatively well. >> should we start with the audience questions? there are a bunch of them about sort of how they can protect themselves. >> i'd be happy to. we are having a wonderful party after this event. >> thanks. >> i don't think tech support will be able to join us but -- -- i don't think edward will be able to join us to do tech support -- [laughter] >> let me know. >> i was going to go somewhere else. i think that actually it would be really interesting, you know, we had two representatives from google here -- like what are the top three things you would tell google? what they should do to make all of us more secure. actually the fact each one of us is going to be less effective at doing it than if they do something for everybody or apple. so i thought maybe you could
12:53 pm
address it in a broader way. what are the things that should be done to secure the internet? >> i'm pretty sure we have microsoft in the room as well. >> sorry. >> your wish list for google and microsoft. >> so the first thing i would say is, google actually needs to stand in solidarity with a competitor here and they need to get on the same page with apple and say we're going to encrypt our phone. i believe the reason they haven't so far is because the benchmarks on their phones that have encryption enabled show there is a pretty significant performance impact because they have some kind of driver problem or crappy hardware on the given model of phone, whatever. but really we need to take a standard that goes -- the government does not have a mandate to say what corporations can and cannot do to protect the quality of their products and services. if google is not willing to take a position of leadership in the way apple is and say that one thing we can do is say when you
12:54 pm
sell, when we sell you a device, the device itself is going to be secure even if we can't guarantee the things that happen off the device, they really have no place in this selling of hardware. this has got to be the standard moving forward. i'd point out the sort of counterargument there is i forget how they represent themselves in their introduction but sort of the unrepentant statists which is oh, hey, guys, i actually worked against chinese hackers. that's a complete fiction. what someone said previously was that it's not going to be about compelled disclosure. it's going to be about using exploitation, using actual remote exploitation, basically flaws in the services, flaws in the website, the devices, for
12:55 pm
judges to say, i think, i suspect this is the direction we're going. there will be debate around this as well. for the government to say, in this particular case we will authorize you to commit a criminal act, hacking into this device, for the purposes of a limited investigation, which is analogous to the way they tell police, we will give a warrant to do a sneak and peek on this house or to kick in the door and search. i think that is the biggest thing. we need to end encryption which google is well on the way to doing but many others around the internet need to do this. they need to commit to guaranteeing they will protect the certificates that protect sort of their -- these sort of communications. eric schmidt made a reference to sort of 28-bit encryption certificates. this is for the little lock icon on your browser. if the government or any government or any criminal group or adversary can gain access to
12:56 pm
this certificate, suddenly that encryption is meaningless. they need to commit to saying all right. we'll make best efforts to protect this within our network to make sure it's not hacked but they need to say we will fight this publically to the highest court of appeals. i think those are really the obvious best steps they can do with a relatively low effort on their part. >> let me actually ask, because you've talked about a technical -- technical solutions, and it seems like in the background of this is that while you may be optimistic on the whole for the future of privacy you don't seem -- very sanguine about the prospects for productive political change. we have a question from twitter particularly about hr-4681. i don't know whether you've looked at the intelligence authorization, but really she is talking about that legalizing aspects of some of the programs
12:57 pm
you revealed. let me just, in case you haven't studied that specifically, let me broaden that a little bit and say, is there legislation that you looked at that you feel is helpful or moving the ball in the right way? or we have, you know, certain folks like marcy wheeler who while a lot of private people are supporting the freedom act believe it blocked in some of -- locked in some of the very programs it was trying to reform. you know, obviously rand paul's stated reason for not voting for that bill. i wonder if you could give us a kind of quick take on the legislative developments. >> let me respond quickly on the intelligence authorization act. we've got the section 309 thing which apparently some could read to be providing sort of a legislative halo, sort of a congressional recognition of eo
12:58 pm
12333. that is an authority that only exists on an old piece of paper. it basically says you can do whatever you want overseas. don't sweat it. if it's not happening over there, it's fine the way we want it. the problem with that authority is it actually collects americans' communications as well because it is a global internet as well. our own communications go to for example google's data centers outside our borders and then they bounce back to us. so the n.s.a. has in the past used this authority to sort of do an end run around congress and collect information about americans, although they'll say it was not targeted of course. that did not need to be reported because eo-12333 is not required. there is no congressional reporting requirement on how it's applied because it's not provided to the legislature. but we do have, you know, again, mr. lit from the d.n.i., who has said on the record, i hope everybody makes a historical footnote of this, that there was
12:59 pm
no legislative intent in providing that kind of halo. so if, you know, we were to have any faith in our institutions we have to assume this will be accepted and that his statements can be accepted and relied upon. if that's the case, then let's go to bat. -- with that. maybe just restrict the activities. beyond that as far as reform legislation, we've got a lot of reforms out there, which are good ideas and make small steps. but we don't have anything that really solves the problem. we're looking at kind of baby steps reform. this is fine. you know, we've got to start somewhere. we have to build some momentum. we really need to, if i can suggest something radical here, we need to think more broadly about the kind of society we're building, the kind of guarantees and process protections we want to enjoy in regard to our rights, in regards to our access to courts, in regard to our ability to challenge evidence that's not just used against us
1:00 pm
in court, but gathered for use against us within agencies through some kind of means. we have to have some way to provide for redress of grievances which today does not exist. and could we actually take a bigger step back and go, all right. we have intelligence agencies. but where were these intelligence agencies born? they were born in times of total war, world wars, in contests we have intelligence agencies but where were these intelligence agencies born? they were born in times of total war, in world wars, in contests between super powers. they were intended to exist for particularized reasons for what everyone would imagine is a limited period of time until they would eventually be demobilized. now, anybody who understands government knows this never happens once we institute an agency we never shut it down unless there is some kind of scandal and it can't be avoided. particularly in the context of state security agencies, spy agencies, do we really need them? are they a product of developing societies, developing
1:01 pm
government, developing civilizations that can be replaced by our methods of law enforcement? when we talked about, for example, earlier ben witty's reference to vladimir putin, do we really need the n.s.a. and a secret court to say, hey, we'll wire tap putin? or is it easy enough to get any judge to sign that warrant? i don't think we need a special mechanism to provide for targeted wiretaps for targeted efforts to gain intelligence related to a particularized investigation. it's not far from me to say we could provide for legislation that affords that outside of secret organizations that inevitably push the line beyond
1:02 pm
what the public would agree with. >> that's thinking outside the box. >> you know, i'm just kind of thinking out loud because i wasn't expecting the question. but why not? we have probably the most law enforcement funding of any government around the world just as we have the greatest military funding. we've got tanks driving around ferguson. we have sting rays flagg above new york city and other places collecting all of our movements. we have license plate readers, ez passes tracking individuals' communications en masse and providing for retrospective searching where police departments can go, hey, where was this guy march of last year? that is an intelligence power. you know? when our police are capable of things that other countries' spy agencies aren't capable of, we need to start asking questions about what utility is unique to our spy agencies that cannot be provided through transparent public legislation. >> let me, i guess, chase one idea you talked about. the inevitable misuse capabilities. a couple questions along the lines of it doesn't seem as though
1:03 pm
we've gone -- i mean, there is some disturbing revelation in there that you've disclosed, but it doesn't look like we see the kind of real hoover level, you know, trying to drive martin luther king to suicide, you know, really targeting peaceful protesters, stuff that, not just is disturbing because of the scale of what they're collecting but the way it's being used in a sort of obviously antidemocratic way. is it that you -- do you think that in fact there are uses we should be worried about in addition to the collection? or is it more that you're prospectively worried the architecture is so fearsome that even if it's not being misused now the damage if it were to be misused would be so much greater? >> well, one of the arguments i would make is first off remember i worked at n.s.a. i worked at c.i.a. both of these are outward facing organizations. cointel pro, the attempts to get martin luther king to commit
1:04 pm
suicide, these were by the f.b.i., the inward facing agency. as so many guests mentioned today we have very little insight into how they're operating and we don't have any perspective, oversight, even at the level of the d.n.i. into how to manage this.
1:05 pm
beyond that, let me argue by anecdote and provide some data. just two days ago, a report was released that the central intelligence agency tortured at least one man to death. he died after being tortured, chained to a concrete floor without pants apparently and froze to death. beyond that, 29 other more individuals disappeared. now, i worked at the c.i.a., and i can tell you nothing happens there without, you know, people making a record, without people making note about it, without people picking up the phone and coordinating. 29 people do not disappear from a secret government torture program without any records. so we don't know what happened to them. you know, maybe they ran away
1:06 pm
and disappeared off into the forest and are living a happy life now. we can hope for that, but the reality is much more sinister. when we look at the, i should say the probability is much more sinister. the other things, rectal feeding, rectal rehydration, we've had physicians say these are not medical procedures that have any indication for use on anyone anywhere yet we were using them for what they said increased, it had the ancillary benefit of increasing compliance. if you think these things are not related to trying to get someone to commit suicide but not actually torturing them to death, i would have to question not you personally but in a general way. beyond that when we talk about scale and scope and domestic abuses let me provide another data point and actually credit "the wall street journal" here, who i have not worked with, but they reported a story very recently that found that we were using sort of these sting ray type devices that have been -- they basically ingest any signals that emanate over certain radio frequencies. that means your cellular phones, that means wireless cards on your laptops, that means, you know, certain kinds of smart cards and things like that, though smart cards probably can't be heard from up in the air, and they correlate these to the device identifiers. then we simply did a little searching to coordinate the device identifier with the user name
1:07 pm
that you log in to, say, your itunes account or, you know, your google account and suddenly we know who owns that phone. now, we can then correlate this really briefly with going, all right. we got a plane circling over this level and it hears this song. at this point in the transit, this point in the transit. you've got a point you can triangulate location. you can index that location. this is actually a very compressible, small amount of data to allow them to create a comprehensive index of movement of not just a target individual but by necessity nor to have the data set to get the annal itics to work they have the data set of everyone carrying a phone, within these cities. you go, okay. these have surely got to be exceptional authorities. maybe they're only used in certain ways. but where did it come from in the first place?
1:08 pm
what is the grounding for using this for the d.o.j. operating this program domestically in the united states, which is the case today? that's the story "the wall street journal" broke. when we look at where it came from, we see that it was actually broken in a story by "the intercept" earlier this year, a program called shenanigans, incredibly. i can't imagine who chose that code. [ laughter] .
1:09 pm
>> they call it shenanigans. this is a program putting these sort of sting rays on someone, actually called a drt box, putting it on a phone and using these things in yemen to target the drone program. they try to figure out where this phone is and then they shoot a missile at it. that's what this program is developed for. it was an extraordinary authority. it was being used overseas allegedly against terrorists. and yet we saw within the span of just a few years without any public awareness, without any
1:10 pm
fight in congress, without any authorizing legislation, now it's being operated in the united states on common criminals that are not threatening the existence of our society. how can this possibly be justified without the involvement of the public in some way in some manner? and as was mentioned previously, these programs are not briefed to all members of congress. when we talk about sort of these covert programs, these black
1:11 pm
programs, missile strikes, drone strikes, we're relying on a very small group of people. you know, they're called a gang of eight and so forth. even when we expand this to the intelligence community, the incentives are entirely wrong for them to represent the public interest because everyone sitting on the intelligence community, even opponents of the
1:12 pm
agencies receive twice as much in terms of campaign donations from defense contractors, from people seeking business with the n.s.a., from the c.i.a., and so forth. than any other member of congress. so they have every incentive to
1:13 pm
approve the programs, to maintain their own chairs, their own seats as to hold people who are asking for them and authorizing them to account of the law. we need to think about how we can fix these structures and fix and provide for mechanisms that will prevent this in the future. >> maybe this is a yes or no but i'm wondering in sort of the mirror universe where there is evil edward snowden who is motivated not to disclose things for because it's in the public interest but because they want to help one political party and hurt the other, let's say, could evil edward snowden have targeted someone for those political purposes and gotten, you think your evil counterpart could get away with that? >> absolutely. i mean, it's no secret. here we are sitting in, you know, i don't know, december, 2014.
1:14 pm
the n.s.a. still says, and asks in public under congressional oath and everything like that, what did he get, referring to me. they still don't know. if their auditing is so poor that after a year navel and a half of investigation and god knows how many man hours, how many forensic professionals they brought in, they can't tell what happened with an individual who like myself was not trying to cover his tracks, what's going to happen when they have an individual in a position of access who is trying to stay under the radar, who is trying to abuse the system, who is trying to use sort of these incredible authorities, these exceptional powers for the benefit of themselves, their class, their group, their own interest? today there is no protection against that and that is an incredibly dangerous, concerning problem. >> i think we have time for one last question and there are so many people who want to know about your personal life. i'll combine them into one last question. do you expect to return to the u.s.? i think you said yes. >> whether you're working on a tool to protect journalists and other -- >> right. okay. that is still an area of active focus. i'm doing a lot with the freedom of the press foundation, pursuing other venues as well. there are active projects i'm
1:15 pm
working on developing. i'm beginning to develop in my thinking there which is we should not develop tools that are specific to -- we should develop tools targeted toward the general audience which provide value and serve everyone but they also take a specific interest in providing to protect the use cases. because the issue is if we create a tool, i provide a tool tomorrow which says, all right, journalists. your sources can communicate with you on this. it'll be bullet proof forever, it's much more nuanced than that. it is a -- you suddenly stand out like a sore thumb when people are looking at the crowd. you know, when you look at the analysis of the mass surveillance systems, they go, all right. who is using the communications signature of this one program that we know is associated with journalist sourced communications? >> i don't know who said it but it was said encryption makes
1:16 pm
you invisible to ordinary mortals but highly visible to the -- >> suddenly the n.s.a. goes oh, man. why is this person different? what is special going on? we see this as actually changing and normalizing the use of encryption which is why it is so important. we have to create an environment in which we provide a -- we're hiding within the cracks. this is being done through efforts like torb, a very good program. i use it myself. i trusted my life to it and history shows it did work though it is not bullet proof. hdbs for transactional things, basically what you use for your bank transactions online, all of this stuff has to happen. i will say one thing i have to point out that i'm a little disappointed in is still uses unencrypted communications. when you look at a copy of 1984 online or look for a book about community organizing, protesting, petitioning the government, wherever you're at, wherever that jurisdiction is, they can see what books you're looking at. this is an incredibly dangerous thing and morally irresponsible and as a business is problematic
1:17 pm
to allow this to continue when we know for a fact that they have the capability to provide for secure communications because as soon as you go to purchase that, as soon as money is involved, they turn it over to encrypted communications. i would hope amazon would take a position there and say, all right, guys. we've waited too long. flip and encrypt the world library. >> something our friends from "the washington post" can convey. i would love to do this for another hour but we are at the end of our allotted time so i just want to thank you for both taking the time to talk to us and thank you for taking the risks you have that you -- to inform the public. [ applause]
1:18 pm
>> live now, we're back in philadelphia for a forum on the bill of rights. we are doing in introduction with the present -- president and ceo of the constitution center. then, a conversation about liberty versus democracy. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2014] president of the national constitution center, which is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. we had the opportunity to summon the best thinkers from the left, right, and all sides of the political spectrum who have written the most interesting books for the constitutional center passes first-ever book
1:19 pm
fair. this is the third installment of this wonderful experiment. c-span viewers can tweak their -- tweet their questions. can now engage in the third installment of a conversation naturally for historic sources of the bill of rights about the philosophical disputes about what exactly it stood for from the beginning. the morning talking about the first amendment and the central battle over whether you could criticize government .fficials we learned james madison thought it was not because of free national right, but
1:20 pm
it took until 1962 recognize that principle. a great conversation involved in the discussion in madison and jefferson and john adams as part of a trotter -- broader debate between accolades of, spain, who advocated a national rights view of the constitution, and those more sympathetic to edmund burke , and favorite evolution and contrary and tradition. author of a us the fascinating and important new book. the conscience of the constitution, the declaration of independence and the right to liberty. the tradition of thomas payne that we heard about in the last was the core of jefferson's conversation and in his view, it should be the core thehe constitution and judges today should construe the constitution in light of the declarations resumption of liberty and should strike down laws that arbitrarily interfere
1:21 pm
with people's freedom, as long as the freedom does not harm others. he criticizes the court for being too deferential and in particular, he criticizes the tradition of traditional restraint, recognized by the supreme court and justices on the left, and justices on the right, and represented in the pfizer roosevelt at the university of pennsylvania, had a vigorous -- active invalidating laws that infringe unenumerated rights, those that were not written down on the tech -- in the test of the constitution, or a democracy, generally up to legislators and not the courts to be restricted to striking
1:22 pm
down only the laws that violated clearly the enumerated constitutional rights. a very brief and student -- introduction to our two scholars. attorney and head of the foundation's economic liberty protectswhich entrepreneurs against abusive regulations. he is a scholar with the cato institute and author of three books, including the most recent one. is arofessor roosevelt scholar at the constitution center as well as professor of law at the university of pennsylvania. he has written four books, including "the myth of judicial activism, making sense of supreme court decisions." please join me in welcoming them. [applause]
1:23 pm
tim, i am so glad you are here. you have written a passionate and vigorous defense of the constitution of liberty. you begin by saying constitutional history has already hovered in the mutual existence of two principles, the right of individuals to be free and the power of the majority to take roles. principleout this embraced by abolitionists, and the constitution should be interpreted in light of it. >> the idea of the presumption of liberty is the idea that when we look at the constitutional or legal system or what have you, we start with the premise that people own their own lives and have the right to direct their own lives without arbitrary interference by somebody else. fair harming other people, that deprives other people to run their light -- of their right.
1:24 pm
thewe start with presumption that people are free with certain inalienable rights and we create the government to protect those rights. the government accuses those -- that is the presumption of liberty. beopposed to what i take to the general view in the academy today of lawyers and judges and law professors predominately american fashion america today who believe that freedom is the present the government gives you, and you are for -- as free as the government allows you to be. we find this theme throughout our law in the form of permits laws that property on say you're not allowed to build getoperty until you first the government's permission. we also find it in the realm of
1:25 pm
constitutional law. and particularly what the courts nine -- underl -- that theory, the court presumes the law is constitutional and requires the plaintiff to disprove every conceivable basis for the law. probably out there are thinking, that is not possible to prove a negative. that is right. nor is it possible to disprove an infinite number of negatives, theyet, that is what require you to do in court. when you go to court to defend your property rights and economic freedom against arbitrary government interference. a phrase from justice thomas, who said in a case years ago, something has gone seriously awry with this courthouse is interpretation of the constitution. what has gone awry is particularly intellectual elites
1:26 pm
have disregarded the idea of the primacy of liberty, the idea that people have the right to run their own lives, unless there is legitimate reason for restricting it. >> a strong statement of a provocative thesis. the majority has no preeminent right to rule and you must justify any limits imposed on individual freedom. principle suchc as people harming one another. i want to talk about history. he says the framers would have understood the declaration of independence to be law and embody this harm principle. justice scalia and others disputed that. scalia said the declaration is not a part of our law, as he legalhe right are not a for what he calls the, you may do what you like so long as it does not injure someone else. scalia says that tim and
1:27 pm
supporters are trying to read their own philosophical preferences, or those of john stuart mill or thomas jefferson or thomas payne, intuit. who had the better historical argument? >> let me start by thanking you for having me here and thank you, tim, to have -- for having such a thoughtful and sustained discussion of my book. i encourage you to buy the book. [laughter] as to your question, i think the declaration is not law. i have a fair amount of sympathy for the idea of natural rights, for the idea that rights proceed government, that we create government to protect and secure our rights. i believe the government, the constitution, gives us enforceable rights. if you going to a court and ask the judge to strike down some law on the bases of a right, that should be a constitutional
1:28 pm
right, something you should find in the constitution, not something that preexist government. i have something somewhat more provocative to say. i am not a huge fan of the declaration, having thought of it a bit more. i think the declaration is fundamentally not really about liberty, but about self-determination. a philosophy of we create government to secure our right. what happens if the government is bridging those rights in an oppressive way? .s not that you go to court the declaration passes idea is that you abolish that form of government. we have seen the idea in american history, not in judges striking down rights in the name of liberty. the civilen it in war. in my view, the declaration is not what we should be look into as a statement of our foundational knowledge is. it is certainly not law. the declaration is a political faucet that finds its full flower in the civil war, which i
1:29 pm
think you can consider the ,econd american or revolution and it ends there purely do not believe in the right of self-determination anymore. you should be looking to the gettysburg address. and if i can say one more thing, i was criticizing timid little bit and now i will criticize you , if that is ok. >> i will take out my pocket constitution as well. >> i have it memorized. [laughter] >> just to make it a fair fight, here you are. [laughter] >> it is like a light saber. all i will say is you have got the constitution. >> since this is not a set up and it is a plug for our great news, which has an introductory
1:30 pm
-- introduction he -- introductory essay, and the point of this essay is to tell the story about how the rights were implicit in the constitution, promised in the declaration, implicit in the constitution, but this point of the uplifting essay does not really answer the question being talked about, which is, were those unenumerated rights in the traditionally -- no one is disagreeing that the rights to free speech and cost -- conscious and so forth were enforced by courts. tim is looking to notice there are certain unlimited rights not inserted into the constitution protected by the ninth amendment , that the enumeration of certain rights should not be to disparage others, should be enforced by governments. this is the biggest constitutional dispute of the 20th century.
1:31 pm
who is right? tim, if you will respond to the provocative statement that the declaration is not law, and that basically, in the show just before this one, you agreed with tim who said, thomas pain would not count on the courts to enforce national rights. -- natural rights. what is your response to the idea that the civil war was the right response, not courts? a have >> that is true, but remember, the declaration says when a long train of abuses pursuing invariably the same object to refuse the past two -- absolute -- it is our right. said, i memorized it. we only find out if that is the case after we have looked at the lawful route for securing rights , which government has interested in hearing. if, for example, a police officer wrongly searches my
1:32 pm
home, the proper response, or is it rebellion against the government? no. i have a constitutional guarantee that i can go to court and seek enforcement of it. the founding fathers took every lawful means at their disposal before taking the final revolutionary step of declaring their intentions. right ofof course, the revolution is an inherent part of our system of government, it is the last thing you do appear before then, you exhaust the mechanisms the law provides protecting your rights. do the courts have the right to enforce our unenumerated right? i object to the time. liberty is enumerated. it is written for the constitution. liberty does not come in discrete particles. is a broad thing to do
1:33 pm
so long as you -- i reject the idea that my right to run barefoot on a hot summer day isn't unenumerated right. it is enumerated. it is part of my liberty and part of the constitution. no government has the right to arbor -- arbitrarily take for me this. i go to court and say the government has provided me liberty. if the government denies all of us redress over and over again and the long train of abuses designs -- is designed absolute despotism, then -- >> us going through the tulips on a hot summers day, violate the liberty? >> yes. the constitution does mention liberty. it mentions a bunch of other things as well. fairnot think it is really
1:34 pm
to pose the question, is liberty or democracy the fundamental constitutional value. the constitution mentions liberty and equality. it does not mention but arguably protects privacy. the thing about many of these constitutional rights or , which iional values think tim brings out so well in his opening to the book where he discusses abraham lincoln's parable of the wolf and the sheep, when you restrict one person's liberty, you are enhancing someone else's liberty, the liberty of the sheep. the sheep will say, the government has increased my liberty, isn't that great? the wolf will say, the government restricted my liberty, isn't that terrible? the fundamental question we are is, who willview decide if the wolf is right or if the sheep is right? when do we trust the democratic
1:35 pm
process to do that and to reach the right results in promoting and protecting our rights, and when do we think judges should step in? that some ofcall these questions require not a purely legal action. the government has some reasons for sustaining liberty. liberty force someone else. who decides whether this is a net increase for liberty or not? maybe a judge is good at some of these decisions and maybe sometimes there are reasons why you cannot reach the legislature. in some cases, and i would say most, leaving us up to the democratic process is the wiser way to go. pacifict to get in the -- specifics. you have on the civil war, there is a tremendous amount in here, but if i can summarize it and you react, you say there are abolitionist led by frederick douglass who believe even though slavery in theo be contemplated
1:36 pm
constitution, it in fact violated the constitution properly understood in light of the declaration of independence because people residing in the u.s. when the constitution was ratified, the constitution that's all citizens and slavery violated those rights and therefore, slavery was unconstitutional. more sophisticated arguments going forward, one thought it was containing an.... basically that there was a basic problem of rights for u.s. citizens he denied. he then put it on a table and tells a story about his civil war bus -- buff, and the constitution wants tech the rights of freedom and the 13th amendment, which turns 150 next year, we will have a 13th amendment.
1:37 pm
david rubenstein, and have a year-long celebration of the 105th anniversary, and the 14th amendment, which says the privileges for immunity in the united states citizenship shall not be infringed, and you talk about how this clause, which the framers thought would find the states, was eviscerated and amazingly it was just the lawyer from the louisiana was actually courtme as the supreme justice who had written decisions denying liberty before the civil war. so you make a strong case the abolitionists thought there were basically implicit natural rights being violated by slavery, but they still thought it took a constitutional amendment to explicitly protect those rights. what is your basis for concluding that john and the other framers thought the 14th amendment included not only the rights enumerated in the bill of
1:38 pm
rights, and a common-law rights listed in a case, the right to the right not to make and enforce contract, why do you think that also enabled judges to decide what they thought was arbitrary and which deprivations of liberty were unjustified? >> this is i think one of the most fascinating stories in the history of the men constitution and it is often skimmed over in constitutional history. we tend to go straight from the framers and job to the present 1830's was aly the time of intellectual ferment like we have rarely seen in this country. basically the construction of the proslavery constitutional theory, and the anti-slavery constitutional theory. led chiefly by john quincy adams after he had left the presidency. he was the godfather of what i take as the libertarian and
1:39 pm
limitation of the constitution, the antislavery theory that eventually climaxed in the ratification of the 14th amendment. a fascinating story. and his it douglass followers thought slavery was already on const national before the 13th amendment? it is interesting. not to take a position on saying they were exactly right or wrong. i do not think there was a right answer at that point. amendment, the 14th amendment, came around, what had happened was the southerners were out of congress, the war was over, the south was laid waste by the work, and the radical republicans saw this as their to put their theory permanently into the constitution, not so much to say they were changing it, but to restore what they thought had always in the cost vision. that is to restore the principle of the primacy of individual liberty, among other things.
1:40 pm
and so the 14th amendment began, all persons born in the united states, are citizens of the united states and the state wherein they reside. that is incredibly important. until that time, the constitution had never defined citizenship i'll believe it or not. the whole idea of state being sovereign, which unfortunately ,ou still hear people say today that sovereign can't define its own citizenship and states have no authority to declare who their own citizens are under the amendment. the state of california has no role in deciding whether or not i am a californian. that is amazing. the second is no state shall for privileges and immunities of the united states. what are the privileges and unity? if you look back at history, defined in corporal, and in other, prior legal precedents and legal stuff -- legal scholars, legal rights, national
1:41 pm
rights, common-law right, now protected against the state. why do courts have a role in enforcing them? no state shall make or enforce any law which shall breach these rights. if a state comes to me and says, i'm going to take away your federally protected rights, your , i will pass ach statute that says tim may no longer expresses opinions on politics, i go out there and express my opinions in politics, i get arrested and get dragged to jail. i will go to court and say this law to drive me of my privilege of immunity and depressed me of my liberty without due process of the law. whatever the state passed to pass that freedom is invalidated and they are deprived of liberty without due process of the law appeared of course i will go to court. the judge will say my imprisonment is illegal, i hope. we talked about the idea of
1:42 pm
where judges get their authority. they get their authority because their role is to interpret the law and these rights are at part of the law -- are a part of the law. rightsl of rights, all were unenumerated. the rights protected by the english common law for at least 200 years, and before that, even, were all unenumerated rights. courts upheld the rights of british subjects long before, even though there is no written constitution and no bill of rights. these are all unenumerated rights. that is why they wrote the ninth amendment, to protect rights not specifically listed, and the 14th amendment in the 1860's was written to protect the privileges and immunities of citizens of the united states. >> the short answer. question and a great answer. the supreme court is basically eviscerated in the slaughterhouse cases by saying its intent, which was to apply
1:43 pm
the bill of rights against the state, cannot be achieved and it took almost a hundred years to -- for that to happen. and the supreme court went on to do exactly what tim is suggesting, striking down basically economic legislation in the name of the liberty protected by the 14th amendment. in the famous incident to 10 a.m. your point of view, the lochner case at the beginning of the 20th century, the court invalidated new york's maximum our law and struck out a whole bunch of other laws. tore was such an objection this among progressives that franklin roosevelt one election and eventually, the court retreated, switched its position, and said they will generally uphold economic regulations unless they are wholly rational end of -- and will and force individual rights more aggressively. tell us, please, why the progressives thought the
1:44 pm
such as lochner were not faithful to the constitution and what the danger of that sort of activism is, and why the 19th century cases cited in support of that should not be followed? >> that is a big question. i will try to give you a relatively short answer. before that the constitution protects a lot of different things. thek only come when government acts, it is promoting one person's constitutional rights or constitutional interest at the expense of one another. you can imagine a worker working in a factory, or maybe 14, 16 hours a day. sorting and cutting fabric, let's say. and maybe, being exposed to harmful dust in the air for the working sessions are not that great, maybe the doors are
1:45 pm
locked because the owners think they are stealing things, and this is a 13-year-old girl, let's say you're in how much freedom does she have? when the building catches fire and the doors are locked, she has the freedom to choose whether to die from the smoke and flames or to jump from the window. as many of them did. and if the government comes along and says, you cannot do that and you cannot strike that bargain and you cannot work 16 hours a week and you cannot have these working conditions, you cannot pay these people so little money that they have to work dickstein hours to make libertyt, it is reduced and in a formal sense, you can say it is a reduced contract of both sides, which is what the supreme court actually said in that decision, that the new york legislator by setting laws for bakers, had infringed on the liberty contract of both the employer and the employee. if you think about it in terms
1:46 pm
of what kind of freedom these people have to lead meaningful and fulfilling lives, to pursue their vision of themselves as flourishing human beings, and not just on an assembly line, you might think they have actually enhanced the liberty of the workers. then the question is, do you want courts to come in and say because in the former sense -- formal sense, liberty has been reduced, regardless what the facts on the ground of the individual lives of the people here are, because in some formal sense, liberty has been reduced and they will strike us down and say it is unconstitutional. or, are you going to give some deference to the considered judgment of the democratic process, that in fact, some descriptions on bargaining power are actually in the public interest. that is a question being asked, or actually do enhanced liberty theome way that outweighs
1:47 pm
restrictions to liberty contract in a formal sense, i would say on a lot of these questions, unless there is some good reason to doubt the good faith or the confidence or the care of the legislature, and i know tim can give a lot of examples where legislatures have done terrible things, and you cannot have too much legislation, but i would say, most of the time, the answer is yes, you can trust the democratic process. it actually leads us to good results and better results than we would get if we tried to simply promote a formal liberty contract. theim says we can trust democratic process more. in this sense, he is sort of channeling a justice and you have a riveting and accurate account of how justice holmes, who goes off to the civil war as an abolitionist thomas imbued with his mother's idealism,
1:48 pm
17,000 people dead, until -- 23,000 dead or wounded. he himself is wounded and almost dies, and he loses all faith in abolitionism and ideals and becomes such a nihilist that he believes that the strong have to be allowed to impose their will on the week through the democratic process because if they cannot do it through law, they will do it through violence. he does not have any faith, as you say, he says, i loathe the thick fingered clowns we called the people. he is not a progressive at all. thein homes feel, he says constitution is made for people of fundamentally different points of view. the constitution does not enact mr. herbert spencer's social status. sacred -- an incredible wind review sites a libertarian social darwinists who he
1:49 pm
actually embraces, but he is saying, we should not impose a social darwinists view at the same time the legislature is embracing a progressive view. the point of your book is that the constitution can survive only among people who agree on regarding political authority. you do not agree with homes that it is made from fundamentally a different point of view. >> i would say it is the most untrue statement ever other. where'd you get your confidence that people have to agree that the libertarian rather than progressive policy view is the correct one? >> declaration of independence, which says what it is that constitutes us as a people, which is why i say it is part of our constitution and part of our law. we read the constitution, the first words, we the people of the united states. who are the people of the united states? it is the same people who dissolve their political ban and connected them with other people .
1:50 pm
i contend you cannot understand the constitution with half little frost -- philosophy that gave rise to the declaration of independence. his argument is similar to an , and i amupported ashamed to say i wrote the book before i had read it. .e wrote a similar argument he said we read it in the light that serves the best political principles and those pencils are articulated in the declaration. that means they do not just impose their own personal view. they impose the political theosophy part of constitution in the form of the declaration. in terms of democracy versus liberty, this plays out as follows. roosevelt mention my earlier passage where i quote we can, with a wonderful analogy lincoln uses between roles and she. the shepherd drives the wolf, she's bureau, which the sheep
1:51 pm
thanks the shepherd as liberator and will call him a tyrant. lincoln's point is not to say the wolf's view of freedom and the she's u of freedom are equivalent. quite the opposite. weare all sheep in the sense own our own lives and have the not toto the attack -- be attacked. none of us have the right to be a wolf. none of us has a right to be a predator and take away the freedoms. they are not equivalent. the political philosophy the constitution rests on, nobody has the right to be a wolf. our right to restrict other people's freedom exists only so far as there is legitimate reason to protect ourselves against other people harming us. i have the right to stop someone from defrauding me or stealing things from me. i do not have the right to tell him where he can live or whom he can marry or what he can say, or what kind of business he can start where that sort of thing. i have no right to be a wolf. becomerinciples
1:52 pm
crystallized. i love faulkner. my license plate is -- [laughter] >> it had not already been taken? [laughter] >> the word would also fit, if anyone of you is interested. what happens in the case? to work as allowed bigger more than 10 hours a day at a bakery shop. it is fair to say no one in this room would want to be a baker in new york city in 1905. an awful word. terrible. it is hot, miserable work. long hours. and yet here is this immigrant who goes to his boss at the bakery shop and he says, i would 10 hours a day and he says, i would like to let you. they shake hands and there you have it. two grown adults own their own line and have the right to decide what to do with her own body and it ain't no right of anyone else if they do.
1:53 pm
why would they want to work more than 10 hours a day? because he is being exploited by evil capitalists, right? of course. the bigger want to work overtime because he needed the dough. [laughter] violatingarged for and says, youoes know what? that is right. they are not hurting anybody else. they have the right to do with their own bodies as they please. if they decide to work more than 10 hours a day and a bakery in the -- they are paid, they are right to do that. the government can only restrict that if they have good reason. transfer that case 100 years in the future, and you have versus texas. the state of texas saying we can dictate whom they go to bed with, and the state of texas sends armed agents of the state to people's bedrooms to drag them from the arms of their loved ones because the majority does not like the way they make
1:54 pm
love. god the supreme court said, that is unconstitutional. they have the right to do with themselves what they please and it ain't nobody else's is this what they do as long as it is not hurting any other person. that is the principal the constitution, the principle of liberty. >> very powerful and accurate. tim has just said, don't be too quick to reject an economic judicial activism because that same philosophy of interpretation leads to the protection of the rights of gay in texas. he's absolutely correct about that and anthony kennedy, who today embraces something closer to the national -- natural law philosophy or embracing, both protect gay people, lgbt citizens, and also start down the health care mandate in the obamacare case, notions of autonomy and economic freedom. fact thatthe traditional activism can
1:55 pm
sometimes lead to liberal as well as conservative results, and that it is endorsed by philosophers, look at these strange that fellows, ladies and settlement. libertarian just invoked the great liberal clinical philosopher, who said you have to pick an overarching philosophy and interpret the constitution in light of that, and you cannot engage in constitutional interpretation without a philosophy. given this incredible liberal pedigree, justice kennedy, lawrence in texas, do you still believe there is a myth of judicial activism? >> i do. i know it is astonishing, but i do. a wonderful statement, and it inspired a couple of thoughts on my part. one is this. is theea that liberty right of consenting to --
1:56 pm
consenting adults to do whatever they want with their bodies, that is a nice idea, but i do not think that is the constitution's idea of liberty. i will tie you are not. when i think about the constitution, the heart of the constitution, i do not think about the founders. for reasons i sort of explained before. i think the founding constitution failed. i think it came apart in the civil war and i think it is a reconstruction constitution that is a different constitution. and a better one. what i'm trying to think about with constitutional values is who we are as a people. i look at the reconstruction constitution and the amendments. ask people come if you think about the bill of rights cases, if we think -- if you ask people, give me a case that the fines the bill of rights, they will say something like maranda, the fifth amendment to remain silent. the sixth amendment to counsel, or maybe the near times versus sullivan, the fifth amendment.
1:57 pm
those are not rights cases. they are 14th amendment cases. that is lasted a reconstruction costs issue is really the constitution we have. you're thinking about liberty and the reconstruction constitution, you can look at the 14th amendment, and you can also look to the 13th amendment. what is the core paradigm violation of liberty? theworst thing from perspective of the reconstruction amendment, slavery. is that the government enslaving you? is that the government saying you cannot strike whatever bargaining you want? in some form, sometimes yes, but not entirely. the 13th amendment means you cannot enslave yourself through whatever contact their the 13th memo has in fact been used to limit liberty of contract. consenting adults know what is best for them, enter into a contract for personal services. the person who is supposed to render the service does not want to perform. can you compel them to live up to the terms of that contract that they voluntarily signed,
1:58 pm
knowing what is in their best interest? you cannot because it is too close to slavery. liberty, i think of more maybe something that has to do with human dignity and autonomy and human flourishing, not just this idea of liberty contract. that said, liberty is important. the liberty of consenting adults to do what they want with their bodies, i think that is an important value. i think the constitution protects it. i think the legislature cannot restrict that unless it has a good enough reason. but how distrustful i am of the legislature and how demanding i will be insane to them, what is your reason? it depends on context. i'm going to give the legislature a freer hand in betweenng relationships bait shop owners, where i actually have a fear that yes, employees are being exploited. if you look at the maxim hour ,nd minimum wage laws generally
1:59 pm
on the whole, i have not sure about the facts of lautner, but if you look on the whole, i think the employees would rather have these minimum-wage maximum our laws. so i will give the legislature a free hand there. i do not trust the legislature to make sensitive sound decisions about the private sexual activities of gays and lesbians. there is a huge he -- history of prejudice. it is a group from which there is -- it is impossible to exit. it a lot of reasons, i think makes sense to treat economic legislation differently from regulation of the private sexual behavior of historically persecuted groups. >> you can do that, but i will ask the question and you can ask -- answer one. [laughter] you do not find in the constitution, which i should say, we are handling them out today, and they should be available on amazon soon, c-span audience, so if you can read this thrilling essay on the bill
2:00 pm
of rights, you are saying there is no to station between economic and personal rights in the constitution? treatingust defended personal autonomy more skeptically than infringements on economic liberty. but, i want to press you on the notion that judges have a blank check to decide not what rights violate the revisions but generally what laws are arbitrary and not in the public interest according to natural law philosophy. your standards are pretty vague. it cannot have no relation to a legitimate or chris or call where lack any reasons to support it. and lochner there was a reason. they