A Conversation with Senator Rand Paul at GW
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A Conversation with Senator Rand Paul at GW


The Federalist Society is a nonpartisan conservative
and libertarian organization dedicated to freedom, federalism, and judicial restraint. FedSoc seeks to educate the legal community
through its programs and publications about how limited, constitutional government, based
on the rule of law, can have a positive effect on the law and public policy. Hi, everybody. I’m Patrick Valencia, also a co-president
here at the GW chapter of the Federalist Society. Um, we wanna thank everybody for coming out. We especially want to thank the senator for
taking his time, uh, the senator’s staff, and wider GW community for helping us put
this event on. Uh, the event’s gonna be moderated by Professor
Kerr. He’s going to introduce, uh, the senator and
then afterward possibly give a couple, uh, remarks and field questions from, uh, students
here. If you have class and you have to leave, feel
free to do so but please do so quietly and respectfully as the event will continue to
go on. So, uh, Professor Kerr. [applause]
Thank you. Uh, as introduced, I Orin Kerr. I’m a professor here at the law school. I’ve taught here since 2001. Uh, I’m gonna keep these comments short because
it doesn’t make a lot of sense to spend a long time introducing somebody when you have
come here to see that person. You already know, uh, who he is. So, I have the easy job of introducing, uh,
a person who to my mind is, uh, perhaps the most interesting, certainly one of the most
interesting members, uh, of the United States Senate, uh, Senator Rand Paul from Kentucky. He has represented Kentucky in the United
States Senate since 2010. Uh, he is the, uh, uh, scholar or the, the,
the senator who was the first to mention the Fourth Amendment in any presidential debate,
uh, uh, that I, I can recall and therefore is the man after my own heart is a Fourth
Amendment scholar. Uh, and that is not an accident. Uh, Senator Paul, uh, is, uh, uh, although
not, either, although not or because not a lawyer, uh, is more focused on the Constitution
and the limits of the Constitution and the meaning of the Constitution, uh, than almost
any other if not any other, uh, uh, elected official. Uh, he really takes the Constitution seriously,
uh, and talks about it and, and it’s a big part of what he does. Uh, the senator, uh, is a graduate of Duke
Medical School in 1988 and then in 1995, uh, founded the Southern Kentucky, uh, uh, uh,
leading eye, uh, eye clinic. Uh, he is, uh, uh, a physician, uh, and an
eye doctor and eye surgeon. Uh, not a lawyer but really, as I said, takes
the Constitution seriously. And we’re very lucky to have him. So, without further ado, uh, Senator Paul. [applause]
Thank you. Thank you, Professor Kerr and Federal Society. There’s always some danger to a physician
talking to a bunch of lawyers. [laughter]
Particularly if I try to tread on your turf and tell you something about what you think
you may already know more about than I do, which is very possible. But I’m also, uh, interested in provoking
people a little bit to think. And so, the introduction by the Federal Society
says we’re all for, the Federalist Society we’re for judicial restraint. And I think the, the topic’s become maybe
a little more complicated than it, than it once was, what that actually means. So, we’re gonna poll the audience, to begin
with. How many people are a yes vote on Lochner? All right. How many are a no vote on Lochner? How many just are indifferent ’cause you don’t
remember what the hell it is? [laughter]
Anyway, it’s sort of split a little bit. I thought it may be more overwhelming, um,
than it has been. But I think it’s actually been a debate a
little bit in the national Federal Society, sort of the idea of Lochner and the idea of
judicial restraint, back and forth, what that actually means. And I think in interesting, uh, ways, it maybe
divides conservatives a little bit from libertarians, and lawyers a little bit from non- lawyers. So, if you were to take Mike Lee, Ted Cruz,
and myself, you say, “Yeah, they’re pretty conservative, they’re pretty far out there
on the right wing.” But you ask them about Lochner, we actually
disagree ’cause I’m a yes on Lochner and they’re both no’s on Lochner. Because they’re a little bit more in the camp
of, “absolutely, we just shouldn’t interfere, you know, with the states. We, uh, should sort of presume the right of
them to act on their own and judges shouldn’t be legislators, et cetera.” It also gets back to this fundamental question
of what the presumption should be. And I think this is an important philosophical
discussion. Should we presume constitutionality or should
we presume liberty? And, uh, Randy Barnett’s talked about this. Some others have talked about this. Um, but just the question of what the presumption
is. You say, “Well, it doesn’t really mean much,
right? Who cares whether it’s constitutionality or
liberty? What does that actually mean?” Well, it becomes a big deal in some cases. So, uh, with Lochner and you’re talking about
extended hours for bakers, should you, uh, sort of presume that it’s constitutional unless
it’s flagrantly not? Or is there any kind of presumption of a right
to contract? Was there a due process argument? So, the court decides five to four that there
is a due process argument, due process argument, that people do have the right to contract
with their employer. Contracts have sort of gone out the window
since then. You’re really not allowed to contract. You’re only allowed to contract under certain
things that the courts or the governments have said you can as far as, uh, your contracts
go. But I think it separates libertarians a little
bit from conservatives on Lochner. And you say, “Well, we’re, we’re Federalists,
we’re for judicial restraint.” Well, if you’re a yes in Lochner, is that
really restraint or is that activism? Or as Randy Barnett calls it judicial engagement. If you have plowed along to one of the next
cases, which has a little bit of a relation to Kentucky’s, uh, Buchanan v. Warley. Warley was a Republican, African-American
in Louisville and he challenged a segregation, um, it was a housing ordinance that said that,
uh, a black person can’t sell to a white person or vice versa. And it gets struck down unanimously, but interestingly,
and for those of us who don’t necessarily like Oliver Wendell Holmes that much, he had
a dissent. He was gonna vote no, even on a segregation
case, because he so firmly believed that, uh, states are, you know, the progressive
idea, the states were doing progressive things. He was gonna leave the states alone and he
was so firmly for judicial restraint. When you get to the 1930s and you have all
the cases in the early ’30s and you have the four horsemen, the conservatives. And how are they all voting on the case, on
all the cases? Well, they seem to be voting actively to overturn
the stuff the federal government’s trying to do. So, in some ways, you could argue the court
of the early 1930s before FDR finally gets his way and packs it, it’s sort of a judicially
active court. And if, if you’re someone for limited government,
I’m kinda, I was kinda with the four horsemen. I was with the people trying to overturn big
government in the 1930s. You go on to Brown v. the Board. Uh, we won’t ask for a show of hands, but
there’s not too many people probably who read no on Brown v. the Board. With Brown v. the Board, you could also argue
it’s a bit of judicial activism. But most of us would accept that there is,
uh, uh, a, a role for the court in that and that there was a Fourteenth Amendment issue. Uh, you get to Griswold. Anybody, does everybody know what Griswold
is? So, how, we’ll, we’ll poll the audience again,
how many people are a yes in Griswold? How many are a no in Griswold? All right, a lot more no’s in Griswold. Many of the people, or at least I think, conservatives
who are no’s in Griswold are for a variety of reasons. Maybe judicial restraint, maybe that there
was a presumption of a new right being created. But also they’re no’s because they see it
as maybe a stepping stone to Roe v. Wade. Uh, but to my mind, I think that, uh, there
is a, uh, presumption that you have certain rights that may not be listed. And I think that’s one of the most important
things about, you know, the Ninth Amendment. I had this discussion one time with Scalia
and he sorta, it was at a cocktail party. I think he was more in- interested in the
party than he was me, but he kinda blew me off because I, I kind of said, “You know what? You’re not supposed to disparage. Those rights not listed are not to be disparaged.” And he was like, “You know, who’s, who’s doing
that, this and that?” But that’s the whole point. You have a right to privacy. I say, “Absolutely, you do.” Do you have a right to private property? Absolutely. Those rights not listed are not to be disparaged. The only way we got the Bill of Rights, the
only way we could actually get it through is people were worried that it was gonna be
a complete listing of rights. And I said, it’s better not to list any of
’em at all, lest people think that this is a complete listing of your rights. They put in the Ninth and Tenth Amendment. Very important and mostly ignored. Powers not given are reserved to the states
and people, but rights not listed are not to be disparaged. You have a whole, you know, panopo- panoply,
panoply, insurance, insurer but you have a whole bunch of rights basically that are out
there that I think are yours, and guaranteed by the Constitution. They don’t have to be specifically limited. This becomes important when you get to the
Fourth Amendment, too. Whether things are explicitly, uh, whether
you have a right to privacy. And I think there’s going to be, if we can
ever get some court cases on the Fourth Amendment, I think there’s the potential that we can
get some real big changes. There are people on the left and the right
that are, that seem to be in favor of some of these changes. Sotomayor and others have said that the digital
era has sort of changed things. And when you think about it, you think about,
you know, the Constitution and the Fourth Amendment the way it was written was so awesome,
but it still does sort of apply today. You know, back then it was papers and people
didn’t wanna come to your house ’cause that was your privacy, that was your papers. Now, if I ask any of you, which would you
rather me do? Have the password to your phone or come in
your house and look at your papers, you’d probably rather let me come in your house
to tell you the truth. You probably may not want either one, which
is what you should argue for, but the interesting thing is your phone is such a, a powerful,
you know, tool that’s so full of information that the government should have no right to
look at your phone. One of the things that’s coming up in legislation
that we’re gonna fight is on Section 702 which has to do with how we gather information from
foreigners, supposedly foreigners. One of the things we’ve learned in the last
couple of months and that I’ve challenged, uh, uh, former Secretary Kelly, who’s now
the White House chief of staff, on is, whether or not when you return to your country you
should have to divulge your password. They’re actually literally de- detaining people
at the border and saying, basically denying entry or promising you detention if you do
not give up your password. I really think they ought to have a warrant
for that. And I also think that there may be a distinction,
and this is a little bit more of a detailed argument, there may be a distinction whether
you’re citizen or non-citizen. Uh, in the country, the Constitution usually
refers to person, so we’re all sort of included under it. When you’re coming into the country, I kinda
tend to think you don’t have necessarily all the rights of those who live in the country. But if you’re a green card holder or a citizen
and you’re coming back to your country, I don’t think you should be denied entry in
your country simply if you won’t give up your password. So, I think there is some question on, on
whether or not, you know, what, uh, the philosophy should be. But when we finally get to Obamacare, the
biggest case at least from my perspective in the last several years, you, you finally
get to this I think really convoluted, bizarre, distorted notion of judicial philosophy as
put forward by the Chief Justice, you know. He says if you can imagine somehow that this
is a tax, you must. If you can imagine somehow that it’s constitutional,
we must. Even if the government argued that it wasn’t
a tax, it was a regulation or that it was a tax and not the regulation, it’s immaterial
what the government argued if you can’t imagine that it’s constitutional, you must. And, uh, I think it’s an important debate. Napolitano writes about this one, too, and
talks about basically what others have talked about. Presumption of liberty or presumption of constitutionality. And I think it’s an important debate. Is there a role for, uh, an activist federal
judiciary to overturn things that state legislatures do to take away rights? Well, if you have an expansive notion that
all the rights aren’t listed in the Constitution, that you do have a right to privacy, you do
have a right to property, you do have a right to contract, that the privileges and immunities
cla- clause of the Fourteenth Amendment means something, you could argue that maybe we would
want a Supreme Court that actually does overturn laws. Um, I think we went, and feel free to correct
me if I’m wrong on this, I think we went from like the 1930s all the way to the 1990s without
ever sort of having any limits on the interstate commerce clause. We basically said you could do anything you
want. And then I think there was a, somebody help
me, was a case in the ’90s with, there was a case in the early ’90s where we started-
Lopez. Lopez maybe? Yeah. But, uh, we started doing some of it, and
that was with Scalia and other conservatives coming together and saying that we’re going
to it. We went a long time and government grew by
leaps and bounds. And I think sometimes we, particularly the
idea that we don’t want Justices to be legislators, it sounds really good, and we want Justices
somehow to be voting on a higher plane that, and I know people can get offended by the
idea that they’re voting on the cases, but that’s really what we’re having. And I think everybody says, “Oh, I’m gonna
obey, um, you know judicial restraint, I’m going to obey precedent until you get the
lifetime employment then you can do what you want.” And it’s become sort of a, um, I guess a way
of, it’s sort of an art form as far as how you get through the Senate confirmation. You have to say absolutely nothing. You have to say, “Absolutely, I will follow
the rule of the law and president.” Then, when you’re on there, then you can do
whatever the heck you want. But, uh, I think it’s an important debate
to have. With that, that’s my lecture on judicial restraint
and, um, versus judicial activism. We could do some questions. Sure. Uh, anybody have any questions? We can go into other subjects too as well
or you can rebuke me for my, uh, my opinion on judicial restraint. So, given that counterterrorism kind of runs
into issues of privacy, is there a point where you would say that you’d be willing to compromise
a little bit of those privacy rights? Is there like a human life-
Right. -point? Um, there, there’s a great description of
this in the, the Suic- the Suicide Pact by Judge Napolitano. And we’ve always had this, this question of
whether you can, uh, trade some liberty for security, you know, and Franklin says you,
if you trade liberty for security, you’ll have neither. Um, the way, the way Napolitano puts this
is he tries to define rights different than services. Uh, the government providing you a service,
the national security apparatus or the intelligence agencies, they’re providing you a service. So, your security is a service, whereas your
right to privacy is a right. He argues that there are two fundamentally
different things and you can’t exchange a right for a service and that, uh, it’s a false
trade and you should never do it. I would say that when you look at danger in
national protection that there is a little bit of difference between those who are here
and those who are not. So, for example, if you are, you know, an
American and you’ve gone overseas and you’re fighting with ISIS and you’re toting a gun,
um, I think it’s important because people kinda get lost in the whole Bill of Rights,
Constitution. The Constitution doesn’t really apply to you,
at all. I mean, if you’re in a war zone and you’re
shooting at us, we’re gonna shoot you. No one’s gonna read you Miranda rights, they’re
just going to shoot you. So, there is a difference between the war
zone. It becomes a little more complicated though
that it, let’s say you’re Al-Awlaki. So, you’re Al-Awlaki or his son which we killed
or his daughter which we killed and you’re overseas and you’re a propagandist. Al-Awlaki may never have, have ever raised
a, a rifle or shot a bullet. Uh, was he dangerous and, and an enemy of
ours? Yes, but it’s, it’s different. I mean, we have to sort of decide as a country
whether, like Tokyo Rose, you know. Would we all push the button to kill Tokyo
Rose with a cruise missile or with a drone? I don’t know. I mean, there, there has to be some question
of where it ends. You have a problem with drones going around
the side of the mountain and shooting 50 opposing soldiers? No. I mean, that’s great. I, I do worry about when we can push a button
and it goes 2,000 miles away or 3,000 miles away and we just kill someone. There’s also the practical aspect of whether
or not we actually kill more than we create. And I’ll give you example. We sent the, um, Navy SEALs into Yemen recently. Does anybody remember us voting to go to war
in Yemen? We are at war, allied with Saudi Arabia in
Yemen, there’s been no vote. It’s absolutely terrible and unconstitutional. But also, from a practical point of view,
we sent a, a Navy SEAL team in there. They, they killed some people including Al-Awlaki’s
daughter. And I don’t know how the Al-Awlaki’s show
up everywhere, but they killed the daughter, they killed several women, and they killed
some al Qaeda targets. Now, they all claim it’s worth it, but they
won’t even tell me what they got. I, I’ve asked them in secure hearings, “What
did you get?” “Oh, we got some good stuff. It’s really gonna be good for the country. We’re really keeping you safe.” But they won’t even tell specifically what
they got, so I have to trust these people that it was worth it. But I can tell you this, this is my theory. If you live in Yemen, my guess is you heard
about the night the Americans came and that they will talk about it for a thousand years
and they will talk about the fact that they came and killed everyone in the village. I don’t know if they killed everyone, but
they did kill several women, several the kids. It’s hard on our soldiers. I, I got three nephews who fi- are in the
armed services. I don’t blame our soldiers, but I do blame
our politicians for putting our soldiers in a situation like that. But I promise you, for a thousand years, they’re
gonna talk about it. What’s the other thing they’re gonna talk
about in Yemen for a thousand years? They’re going to talk about how the Saudis
came with American bombs and American guidance technology and they bombed a funeral procession
and they killed 150 people and 500 people were wounded. See, we’re, we’re more concerned about Britney
Spears or some kind of actress on TV or what they’re wearing. They still talk about the Battle of Karbala
in 832 AD. I mean, these people have a long history. They’re not going away. They live there. And, you know, one of the most famous comments
over there is, you know, you guys have the watches but we’ve got the time. They’re gonna stay there forever. Are we gonna stay in Afghanistan forever? But I guess back to the fundamental question,
is there a trade-off? I think there can be a different standard. There isn’t always a Fourth Amendment standard
for privacy for everybody in the world. For us, there is. If you are in the United States, you get,
you get protected. And it’s important it’s not just citizens,
it’s all persons in the United States. But coming in, I, and I can, I can even agree
to a little bit of a lower standard, like the 702 standard isn’t probable cause to get
information, but I do worry we’ve gone too far where we collect all of the phone information
in Italy. We have a whole month’s worth of data for
everybody in Italy. When we’re collecting, uh, Angela Merkel’s
private cellphone phone calls, I figure, I, you know, I worried that we’ve gone too far. When we have billions and billions of phone
calls stored in, in, Utah desert of Americans’ data, I worry that we’ve gone too far. So, um, to my mind, you shouldn’t have to
give up liberty for security. And if you ever, uh, ever do, the error should
always be on the side of liberty. Thank you. Um, this is about a recent event with yesterday
and Jeff Sessions announcing the Trump Administration’s decision. Do you agree with the Trump Administration
that DACA was unconstitutional? Also, do you think the House and Senate actually
have a chance of passing legislation- Yeah. -that would extend and make permanent the
program? Yeah. I think the executive branch acts in an unconstitutional
manner probably almost every day. Um-
[laughter] -Republican or Democrat, I mean, it’s been
going on a long time. And if you talk about your, the biggest danger
of you losing your freedom or liberty, it’s from executive over action. The biggest danger of your country going to
war in a war that we shouldn’t be involved in, once again, executive action. So, DACA, I think, uh, most of the courts,
there’s been several court cases and they’ve all agreed that it’s unconstitutional. He created law. That has nothing to do with the argument of
whether they should have it or not. Um, I’m actually somewhat sympathetic to,
uh, the kids who have been here for most their lives. But I’m also sympathetic to the idea you can’t
have no rules. I mean, you just can’t, um, sympathetic to
Milton Friedman’s point when he said, uh, you can’t have open borders in a welfare state. We’ve got a lot of free stuff in our country. Free healthcare no matter what, free education
no matter what, up through 12 grades. That’s just a big expense. You just can’t have the whole world come. There was a, a survey by Pew one time. I think it’s Pew or Gallup. And they surveyed the world, then they extrapolated. And they said 700 million people would come
here if they could. So, we’ve gotta have some rules. Now, with the DACA kids, what I propose is
the compromise is they’re here, they’re illegal, and you wanna make ’em legal. We accept about a million people a year, uh,
through green cards who then go, get on the track to become citizens. Make the DACA, uh, kids part of the million. Now, there’s a million of ’em so they would
take up a whole year’s worth of immigration. So, let’s say you wanted to not be, take up
all the slots, let’s say we divide them into, uh, segments of 200,000. We admit them over five years. We internally immigrate them over five years,
but they count against the numbers. So, for the people on the right, we say, we’re
not expanding immigration. We’re not necessarily rewarding. We’re not gonna take 1.2 million next year,
we’re gonna take one million and 200,000 slots for the people who’ve lived here 15, 20 years. And then I think that to me would be the reasonable
compromise. I don’t think that’s, that’s what I’m promoting. I don’t think we’ll get that. I think what we’ll get is, um, you’ll do DACA
and it’ll pass. And then they’ll throw a bunch of money at
a wall or some security stuff. And in the end, the last comprehensive bill,
one of the reasons I opposed it is it actually had too much money for border security. [laughs] They just threw billions and billions
and billions trying to get conservatives onboard with the immigration reform. With immigration in general, most, most immigrants
are, are an asset to our country. Most of ’em are good people, most of ‘em
are hardworking people, and should be looked at that way. But still doesn’t mean I’m for an open border. With DACA, you should have to obey the law. And one good thing about it, and I know everybody
wants, it’s popular to hate the president right now, but the thing is is that he did
something. He’s gonna force Congress to do their job. That, I mean, that’s what he’s, you know,
if you read his Twitter account, that’s what he’s saying. [laughter]
He wants us to do, he just wants to do our job. And it is true. I’m, and in fact, I’m trying to do something
similar to that. So, he’s forced DACA back to us. If it’s very unpopular, send these kids back
to their country or who knows, they, someone might not even speak Spanish or whatever language. If that’s not popular, Congress should fix
it. I’m trying to do the same thing on the authorization
of use of force. I don’t think the 2001 AUMF applies to anything
we’re doing now. I don’t think the 2002 in Iraq applies to
anything we’re doing now. So, I have an amendment to the defense authorization
bill to let it sunset in six months. So, the similarity to DACA would be, in six
months, Congress has to either pass a new AUMF or they, uh, they won’t have any authorization
at all. Here’s what I predict will happen when I lose,
which is a common occurrence. [laughter] But, uh, I’m, I’m holding it up. So, when John McCain came back at midnight
and he asked for immediate, expedited, uh, consideration of the defense bill, I objected. And everybody’s like, “Why are you objected? He’s sick, he needs come back, and this is
his big thing.” Had nothing to do with John McCain, but it
has to do with, one, they’re spending way too much money. But, two, it has to do with, we’ve been fighting
war for 16 years without an authorization. Um, there’s a whole bunch of people on both
sides who argue that we should have a new AUMF. But mark my words, most of them will not vote
for a six-month sunset. They’ll say, “Oh, that’s too dramatic.” And my response to them is, “Well, it’s been
16 years and six months, how long do you wanna wait till we actually address the issue that
we should be addressing?” But, uh, so I support what Trump did on DACA. I do support a compromise and probably will
vote for some sort of compromise. But I think the best compromise would be that
the kids are gonna be internally immigrated, would be taken from the, the numbers of people. I would also do something for the same 11
million people. The 11 million people who are here undocumented
or illegally, I’d gradually start internally immigrating them. They’d have to work and as long as they’re
working, they got to stay. And I, I would also say one other thing before
we move on. This is something that I think liberals get
completely wrong about the Statue of Liberty and Ellis Island. They’re all forever saying, “Oh, we’re in
this country that everybody can come.” Go to Ellis Island. My grandmother came in through Ellis Island. We went and looked it all up and we talked
to him and met him. Ellis Island was a harsh taskmaster and there
were a lot of rules. And people got sent back if they weren’t healthy,
families got separated, but there were rules. And there was a host of rules. There are people looking at the way you walked. There were all kinds of rules as far as getting
in our country. And, uh, I don’t think rules are necessarily
a bad thing. And I think we need to change our immigration
if we do, not to necessarily be more restrictive, actually maybe to expand some of our numbers
but to base it on work and people who wanna work. And, uh, we could probably have more of them,
not less. Yes? Thank you. Hi, senator. I’m, I’m really glad that, that you love Randy
Barnett as much as I do. I’m a huge fan, so it’s really exciting to
see someone in the Senate especially to preach about him so much and name-drop him all the
time. But one thing that I wonder is that what,
um, very few in the Senate I, I would suspect agree with you on, on your view of original
meaning, originalism, and judicial engagement. But, um, but what, what brought you to, to
accept that one so much, especially probably at the time you got into, it was more focused
on restraint? Um, you know, I think reading some of his
books, reading some of Napol- Judge Napolitano’s books, who I think is a wonderful writer. Um, and I read stuff that are more for the
layperson than the, the, the, you know, the lawyer because I want something that is readable. But I’m fascinated by it and by the history
of it. There was another book, uh, called Overruled
by Damon Root, and that’s, uh, that’s a good book also, and that’s about the Obamacare
case and really goes through it. And it is really, really disappointing for
those of us who wanted better like from Justice Roberts, you know, to, to have this opinion
which I think is a, is bizarre opinion that you’re so caught up and that we don’t want
any kind of judges creating law that we acquiesce to whatever nonsense Congress passes, whether
it’s constitutional or not. And, uh, I think that’s still a, a big case
and a big deal, the Obamacare case. More really from the idea of the presumption
of constitutionality than the specifics of healthcare. So, this is a question about the Electoral
College. Um, so the direct popular vote movement, especially
since last November when the president lost the popular vote and won the electoral vote,
has been gaining a lot of steam in this interstate compact between I think 12 states. It’s almost 200 electoral votes and I’m sure
you’re familiar with the compact that if- Right. -if they get a 270, it will trigger then they
would give their, their, all their electoral votes, these states to the popular vote winner. So, what do you think of the interstate compact? Do you think it’s constitutional? What do you think of the direct popular vote
in general? And, uh, what could the federal government
do to stop it if you think it’s unconstitutional? Um, our Founding Fathers in general thought
democracy was a terrible idea. [laughter]
And you say that and if you did, and I was careful to say they thought that, not me,
because people would take that quote out of context and they think you’re a horrible person,
you’re a terrible American, how can you be patriotic if you don’t appreciate democracy? They didn’t like democracy. They, they wanted sort of an indirect democracy. They wanted a republic. They wanted, uh, some kind of laws to restrain
majority rule. And particularly when people from the left
tell me they’re for democracy and we need to get away from this old-fashioned idea of
the Constitution, I try to point out to them that, you know, democracy is what gave us
Jim Crow. The Jim Crow laws were passed by majority
legislatures. Now, some will argue, they’ll say, “Oh, well,
blacks didn’t get to vote in those states.” Even when you add up all the black votes that
could have voted, these were a majority of all these other states passed these Jim Crow
laws. That’s when you do need a court system to
step in in an undemocratic way and say, “You, you can’t have that. You gotta have equal treatment under the law.” And so, I want an activist court when there’s
a Jim Crow law, you know. Um, I think, um, one of the things that I’m
also interested in and I think is interesting from a law pers- perspective is the famous
dissents. I think the dissents are more important and
more interesting actually than the, the victories on the court, you know. So, um, Harlan’s dis- or no, Brandeis’ dissent
in Plessy v. Ferguson. And it takes 50 years to overcome it. Well, it’s one of the beautiful things about
our country. It’s not that we went 50 years doing the wrong
thing, but that we’re stable and civilized enough that we finally did the right thing
after 50 years of doing the wrong thing, you know, with, with Plessy I guess finally being
reversed with, with Brown. Um, other cases like that, the, um, the Olmstead
decision back in the 1920s basically said your phone calls were not private, that the
police could tap your phone calls without a Fourth Amendment. That finally gets reversed in like ’68 with
the Katz decision, long time. Uh, we have the same thing going on right
now. They say that my records, if you’re my bank
and I give you my records, I have no right to privacy. This third-party doctrine on records, I think
they’re completely wrong. And that’s why like if you’ll vote for me
for the Supreme Court- [laughter]
-I will promise you I will overturn Maryland v. Smith and a couple of other those because
I think, uh, they’re wrong, completely wrong. But no one’s ever gonna say that ’cause you
would never get on the Supreme Court if you said you think some, some previous decision’s
wrong. You can’t, in fact, you can’t talk about any
decisions. But once you get on there, you can make those
arguments. But really, I think we’ve, we’ve, we really
do need to overturn and change the third-party rule on, on privacy and some of it could be
contracts. I, I guarantee in the contract if I give you
my banking information, it says you’re not supposed to share it, then the government
says, “Oh, except for with us.” Well, that’s precisely the people I don’t
want you sharing my information- [laughter]
-with is the government. Even more than my neighbor. So, I’m against Electoral College, uh, change
in Electoral College. And Electoral College is a, is maybe less
than democratic but it’s a way of preserving. We sort of preserved democracy of population,
but then also regional variety. Uh, Senate does the same things and it’s not
democratic at all. Should the senator from Wyoming have a same
vote as a senator from California? So, if you get rid of Electoral College, you
probably want to get rid of the Senate, too, and I can’t have that at all. [laughter]
Right. So, for a little while, there was a debate
in Congress about passing comprehensive prison reform. Uh, I’m just wondering, uh, has that been
permanently shelved in Congress, uh, and what your stance is on prison reform. I’m for, almost any criminal justice reform
you can name, I’m for it. Um, I wrote recently with, uh, Kamala Harris
about bail reform. And one of the reasons I’m for bail reform
is, and I would suggest that everybody read this in here, it’s probably the most dramatic
case I’ve ever read and you should all know the story of it if you have a heart and wanna
have a heart about our judicial system. It’s the story of Kalief Browder. So, who’s heard of Kalief Browder and his
story? Not many. You should all read it. It’s in the New Yorker. About a year and a half ago, he was arrested
for allegedly stealing a backpack. He is put in Rikers Island, he’s 16. The bail’s $3,000. He cannot come up with bail, so that’s the
first problem. But here’s the second problem, he was kept
for three years in Rikers Island. Two years in solitary confinement. He was beaten by guards, beaten by prisoners,
which also shouldn’t happen in our prisons. And then ultimately tried to commit suicide
in prison several times, got out, never could function again and then committed suicide
and unfortunately was successful. You need, we need reform of this system. The other thing you need to be aware of, and
this will be way out there for so- some of you in the Federalist Society. Michelle Alexander, read her book about, uh,
what’s, anybody remember the name? The New Jim Crow. Say again? The New Jim Crow. The New, The New Jim Crow, because it talks
about, and then I think this is an important distinction also. It is not, most of the disparity in our, um,
outcomes of our judicial system is not, uh, intentional racism, I don’t think. I don’t think the cops are all racist. I don’t think the mayors and judges and lawyers
are all racist. But I do think there’s a disparate outcome
when you look at who’s in prison. If you measure drug use from whites and blacks,
it’s about equal by most surveys. But if you look at the prison, four out of
five people in prison are brock, black or brown. They don’t have the resources, they do worse
on plea bargaining. Every step of the way, they don’t do as well. And, um, the, the answer to it is somewhat
not having such a harsh war on drugs and not putting people in prison for drug use. But the other answer is we do need to be conscious
of it, uh, as far as the disparity in this. And I think it also leads to some despair,
anger, and a lot of the other problems we have. And I can promise you, all you gotta do is
think of, if you’re a rich, white kid and live in the suburbs and you smoke pot in your
parents’ basement, what are the odds of you being caught? Almost zero. But if you’re a poor kid in the city and there’s
no place you can go inside and you’re smoking pot on a corner, you’re gonna be caught. And so, nine times out of ten, you’re gonna
be caught. The white kid in the suburbs is, or rich kid,
doesn’t always have to be white, it’s not gonna be caught. So, this disparity adds up over time. So, um, I’m, I’m, for almost all of the criminal
justice reform that you can name. Bail reform, letting people vote again, uh,
expunging records. And it’s actually become a bipartisan thing. In my state, the governor is Republican, evangelical
Christian, conservative as you get, but we passed an expungement bill, uh, that says,
I think it’s not all crimes but for many crimes after a certain period of time, your records
get wiped clean. And from a Republican point of view that doesn’t
want a huge welfare state, I want people to work. If you’ve committed a crime, you’re not going
back to work if you’ve got a, a record that prevents it. Um, and you’re either going back to committing
crimes. [laughs] But to get people back to work, and
not everybody will, I mean, a third may work, a third may commit more crimes, and a third
are going back to jail. But, uh, we have a chance with some people
if we’ll let ’em have some, a second chance. Sen- senator, I want to, uh, go back to the
question of the role of the courts. Um, and in particular, for fans of, of limited
government, how much can one expect to get those limits out of the courts as compared
to out of Congress or state legislature? So, um, people disagree on what the Constitution
means, debate. Just a lot of people have different views. Uh, and history suggests that presidents are
gonna nominate people that will tend to further their political views and, uh, probably senators,
history suggests will tend up both in favor of or against nominees based on whether they
think that nominee will favor their political views. If, if that’s true, how do you get courts
to impose limits that are contrary to the interest of the nominating president and the-
Right. -affirming senators? Is it sort of big then that the courts can’t
get very counter-majoritarian? Right. And if so, what does that mean in terms of
fans of limited government seeking relief either from the courts or from legislators? Right. (sighs) Uh, I think it’s a tough question,
actually. I think one of the things that’s going to
be the most dramatic change over time with the Supreme Court and whether it’s more or
less ideological is the fact that we’re doing it by simple majority now. And we went a long time saying you had to
get 60 votes and the only really controversial one was Clarence Thomas who I frankly think
is the best Justice. But, uh, you know, he won 52-48, but now you’re
gonna get a lot. Gorsuch, I think, won what 56-44, a couple
of Democrats but it was very partisan. But I think you will see a little more of
a partisan tilt of the Supreme Court and the appellate courts because we’re doing it through
simple majority. How do you set limits? Um, this is where I have the mixed feelings
on whether I’m for a more judicial engagement versus restraint, ’cause on the one hand,
I do think the Constitution means something and I think the limits are real and in there. But I think I see most of majoritarian government,
most of the things being passed by government as contrary to the limits. It’s not that we’re overturning too many bad
laws. We got way too many laws being promulgated
that are completely ignoring the Constitution. In fact, if I were to look at let’s say we
pass 500 pieces of legislation next year, I would say probably 495 of them are unconstitutional
because there is no explicit authority or power. We’ve gotten to, you know, we debate philosophically
whether it’s a real original Constitution or a living document or a living Constitution,
it’s absolutely only a living Constitution according to the legislature now. That’s my opinion. There are, uh the, my dad used to make the
joke. He said the only two things that will be completely
discounted and not regarded as an argument in debate would be morality and constitutionality. [laughs] And, uh, so I think we do live in,
we don’t really live in a republic, a constitutional republic. I think we really do live in almost a pure
democracy right now. And because of that, um, there isn’t a restraint
on the size of growth of government. And because there is no restraint in debt,
government can do anything. So, we’re gonna pass, you know, my family
lives in Florida. My sister’s got two feet of water in her house
as we speak. But the $8 billion dollars they wanna give,
I’m gonna ask them they take it from some other part of the budget. But I’ll be the only one. I, my staff looked this up. In 2012, I did the same thing. On- I got only three votes. I think it was Mike Lee, myself, and Heller
voted in 2012 to offset it by taking foreign aid money, money we’re gonna give to someone
else and actually giving it to our own people instead because we’re out of money. People say, “Oh, no, we should help the poor
people in other countries and help our poor people in our country, too.” I was like, “Where’s the money gonna come
from?” We’re $500 billion dollars in debt this year. We’ll be a trillion dollars in debt next year. And the only argument you can make for not
offsetting the spending is, “Oh, but I’m compassionate, I wanna help people.” And that’s the biggest problem we have in
Washington, is we have a big heart, small brain syndrome. [laughter]
And, uh, everybody’s compassionate with someone else’s money. Um, you know, try asking people to give some
of their own money and we’ll see how far, far that goes. But it’s always easier to give somebody else’s
money. But I, I don’t know if I answered your question. It’s, it’s a tough question because I think
that we should be restrained and our Justices should be restrained by the Constitution. Uh, Jefferson talked about the chains of the
Constitution. They’re supposed to mean something, uh, not
on the people, not to restrain the people, but to restrain, you know, the legislature
and the, the course were supposed to be part of that. Um, but we’ve gotten so far away from that,
you know, for so long. Once the interstate commerce clause began
to mean anything, you know, they didn’t, you know, that even domestic manufacturing within
a state could be, you know, ’cause eventually it got on a road somewhere and eventually
went somewhere, we could, you know, regulate all domestic. Once we decided that we decide we can regulate
anything, and now that Justice Roberts says we’ll just call it a tax, you can regulate
anything in the world, just call it a tax. So, if, you know, what was the case they talked
about, we can make you eat broccoli? Well, we’re not gonna penalize you, we’re
gonna tax you for not eating broccoli. And that would be fine for Justice Roberts. I hope he’s not listening anywhere. [laughter]
Anybody else? Over here. Um, hi, I’m [inaudible]. I’ve been a military spouse for 20 years now
almost. Um, and we live in a semi-socialist world
to protect the Constitution and democracy. And I’m really troubled by the pulling back
of the ability of transgender service members to be able to serve. But I’m more on another level feel like as
military families, transgender kids are getting ignored, who only have access to healthcare
through the military, particularly those that live overseas. Do you think that there is a legislative or
ju- judicial argument to protect these children’s access to care when their parents are serving
the country? You know, I thought we should have stopped
before we won, you got, we went one question too much. [laughter]
Um, the first thing I would say is that I think to be in the military and your rights
in the military aren’t the same as being a citizen. The service member. So, what’s that? For the service member. For the service member, yeah, because the,
the service members, you’re not telling a service member, you’re talking about people
related to a service member. Mm-hmm. Spouses and kids. Okay. Well, well then I’m confused then because
I don’t think, nobody’s restricting health care for what they’re restricting at, what,
some kind of sex change operation for people? Uh, sex changes don’t happen before 18, but
18-year-olds are not, are losing access to, um, services. Uh, transgender kids whose parents are serving
in the military are losing access to medical services, not including sex change which isn’t-
We could have a long debate and I don’t, I don’t think this is by the place to get into
it. All I would say is there, there are more than
one opinion over whether or not it’s a good idea to do some of that. And there’s, you know, I mean, there are,
there are, there’s a, I just hate to get into this. I get so emotional, but there’s a lot of suicides
among people who’ve had this done. There are a lot of people really unhappy they
did it. There are a lot of people really confused
about this over time. There some maybe that are happy. All I’m saying is that when it’s really controversial
what’s going on, it shouldn’t be, it’s not really, to my mind, the same as getting your
gallbladder out or have a, you know, having a bypass surgery. So, you disagree with the AMA on that? Excuse me? So, you’re disagreeing with the AMA on-
Well, that’s why I can’t, you know, I’m not sure if I want to go any further than that. It’s just my opinion. I’m just telling you my opinion. Do you think-
And I don’t see it, and I don’t see it as being the same. Let’s, let’s not, let’s move on. We’ve got time for one more question. Right here. Over here. Hi. As, um, I live from the, in the district and
I haven’t changed my residency to the district because I don’t wanna lose my federal, um,
voting rights. I’m still, I’m still registered in Pennsylvania. I still go back to Pennsylvania very regularly. Do you, do you, um, have any stance on, on
the DC either gaining statehood or the people living in DC getting voting rights in, in,
uh, neighboring states to, um, vote for a federal representative? Right. Um, the problem with sort of the idea of,
of statehood. From the very beginning, they set DC aside
and they decided it wasn’t gonna be a state. You know, that was the original intent of
the Founding Fathers. Um, on one hand, it does sound kind of unfair
sometimes. And, uh, it’s also very partisan because DC
votes like 90% Democrat and so people would see it as an automatic, you know, two new
Democrat senators. Um, I, I wouldn’t vote in favor of it and
I’d frankly tell you that some of it is political reasons as well. But, uh, I also would be, if you told me that
it’s not fair and you’re being taxed somehow without representation, I’d probably vote
to get rid of your tax ’cause if you, if your vote doesn’t count, I’d get rid of your tax. [laughter]
Thanks, everybody. [applause]

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