A More or Less Perfect Union, A Personal Exploration by Judge Douglas Ginsburg

-Jeremy McLellan was just named a new face of comedy at the Just For Laughs Festival in Montreal. He was a two-time stand-up comedy competition champion, so start clapping right now, and make some good noise for Jeremy McLellan, everybody!

Cheers and applause

-I do a lot of material on religion, on politics, anything that people are usually not supposed to talk about in polite company. I travel full-time, and whenever I travel, people always assume that just because I'm from South Carolina, I must be racist. But, like, South Carolina, we actually have a very rich, progressive history. I don't know if you know this, but we actually started the war that ended slavery.

Laughter

So you're welcome. Free speech is the entire lifeblood of comedy. Without free speech, you don't have it. -Every day in America, someone is chipping away at our liberties. People we elected, bureaucrats we didn't elect, even we the people. -You don't have a right to take our photos. -You may think our liberties are secured by our history, our courts, our Constitution. -The Constitution is on very thin ice. -I don't know if anyone teaches civics anymore. -I think the federal government wields too much power. I think state governments wield too much power. -The Framers would not recognize the federal government we have today. -I think, if we could have a seance and sit them down here, they would wonder where they were. I think they would be eager to leave. -Most people will get used to encroachments on their liberties. They'll get used to oppression. -The real threat to liberty isn't some dictator taking over the country in the middle of the night like some Hollywood fantasy. It's we the people ceding our rights to the government so gradually, we don't even know it's happening. Join me, Doug Ginsburg, on a personal journey as I explore our more or less perfect union and the threats to our Constitution. You might be surprised how much danger we're in. -Thank you guys so much for coming tonight. PBS is here, filming this for a documentary on the Constitution, and now is the perfect time to be concerned about that, because we have about six months before we don't have a Constitution anymore. And this is going to air in about a year, okay? Any power that you give government, it's going to do with it whatever it wants. -100 years ago, the federal government trampled our most fundamental right, the freedom of speech, at a time not unlike the present. A New Yorker from a century ago might feel right at home today. Then, as now, immigration was booming. -Our population, foreign-born, was high, over 10%, closer to 15%, which means it was, as today, a high water mark for the United States. There were definitely anarchists in the United States.

Explosion

Wall Street was blown up right near where I am sitting. And if you go to Wall Street today, you can still see the pockmarks in the buildings. -The bomb was hidden in a horse-drawn wagon, an act of terrorism. 38 people died. -In Europe, there are revolutions just about everywhere -- Russia, Germany, Ireland, and all those countries have relatives here in the United States who haven't even been here very long, whose hearts are with their old countries. Maybe they'll support the wrong side of World War I. Maybe they'll cause treason. -In 1917, America enters World War I, and the Espionage Act makes it a crime to obstruct recruiting for the Armed Forces. In 1918, the Congress doubles down with the Sedition Act. The Congress made it a crime to say anything, "disloyal, profane, scurrilous, or abusive" about the government. Well, there goes freedom of speech under the First Amendment. Five-time socialist candidate for president, Eugene Debs, compares the draft to slavery. -And he was tried and put in jail, sentenced to 10 years in a penitentiary. -The Supreme Court upholds his conviction. Imagine these headlines today -- "Supreme Court Upholds Conviction of Anti-Draft Protester." "Court Upholds Conviction of Anti-War Publisher." "Socialist Newspaper Folds After Postmaster Denies Mailing Permit." The government even bans a Revolutionary War movie that depicts atrocities by the British, who are now our allies. The Supreme Court holds movies are not protected by the First Amendment, a position it will not overrule until 1952. The Congress passed the Sedition Act, and the president signed it, and the Supreme Court upheld it as constitutional. The Framers' greatest fear -- all three branches acting in concert to trample liberty. And everyone involved had sworn an oath to uphold the Constitution. -We had 15,000 people who were imprisoned merely for peacefully objecting to war policies in War World I. -No surprise that the American Civil Liberties Union was founded right after the war. -The right to objection and dissent existed on paper, but not in reality. James Madison, the so-called father of the Constitution, famously said that it's only a parchment barrier. It's not going to provide any real protection, unless people are willing to stand up for their rights and to challenge the government. And for most of our history, that simply did not happen. -Anybody else think it's weird that people still get married on plantations? -Yes. -I got married two years ago, and not once in the wedding preparation was I like, "Honey, this is going to be the most amazing day of our lives. Why don't we celebrate it at the location of our country's greatest evil? Let's do it."

Laughter

-Freedom needs more than celebrating. It needs defending, and that takes guts. -My great-grandfather's first cousin was a shoemaker. He challenged the Separate Car Act of Louisiana, which mandated separate accommodations for people of different races. The railroad was partner in this attempt to change the law.

Train whistle blows

It cost them a lot of money to change cars, when it was easier to just let all passengers ride the same car. He was selected because of his complexion, that he would appear to be someone of the white race. There was this thing called a one-drop rule. If you had one drop of African blood in you, you were mixed race. He boarded the train car, and the conductor, as well as the arresting officer, were all in on this plan to fight the segregation laws of Louisiana. So the conductor approached him and asked him, was he a person of color? And he responded, "Yes, I'm a person of color. I purchased my first-class ticket, and I'm going to go to Covington on this train."

Train horn blowing, crossing bell dinging

Upon his arrest, he was removed from that train and brought to criminal court. My name is Keith Plessy, and my great-grandfather's cousin's name was Homer Plessy. 58 years before Rosa Parks protested on a Montgomery, Alabama, bus, the right to sit where she pleased, Homer Plessy was battling for the right to sit where he pleased in 1892 on a East Louisiana Railroad passenger train. -In 1896, the landmark case of Plessy vs. Ferguson reaches the Supreme Court. Plessy's lawyers argued that the state law violated the equal protection of the laws guaranteed by the 14th Amendment to the Constitution, which had been ratified 25 years earlier. -"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor deny any person within its jurisdiction the equal protection of the laws." -Supreme Court said the Constitution must be interpreted to reflect the customs and traditions of the people. So much for equal protection. -The Supreme Court, after all, is a reflection of society, and so, when our society was deeply racist, so was the court. -"Whatever you want to do to carry on the vestiges of slavery, we're going to say that's okay for you to do, and we're going to actually give you cover, right?" -One justice dissented -- John Marshall Harlan. -He stated, "Our Constitution is colorblind. All citizens are equal before the law. The humblest is the peer of the most powerful." Justice John Marshall Harlan got it right. -When the Supreme Court speaks, people can sort of put its pronouncements, its decision, next to the actual Constitution as it's written and say, "Wait a minute, you guys and gals made that up." -I never realized that my great-great-grandfather was the judge in the infamous case of Plessy vs. Ferguson. He ruled against Homer Plessy. This is one of the three most important civil rights cases in American legal history, and we are descendants of it. -Our foundation is a flip on the script. As opposed to Plessy vs. Ferguson, we are Plessy and Ferguson. -We're dedicated to identifying historic sites where African-American history has occurred but not been recognized by the state. -The Plessy vs. Ferguson case resulted in the United States Supreme Court adopting separate but equal as the law of the land. The suffering that resulted from that case was a national disaster. It reached out into every facet of life. -The first time I came to Washington, I saw in the station separate fountains, water fountains, for whites and for coloreds. I was really shocked. That was in 1967, more than 100 years since the Civil War. That was the legacy of Plessy vs. Ferguson. -Growing up in New Orleans, we knew what we couldn't do, and we knew what the white people could do, because we lived in the neighborhood with them. They could go anywhere. Sometimes, at restaurants, we could buy food, but we had to go to a back window that said, "For colored only." My mother loved the opera, but we had to walk up 103 steps to sit in the crow's nest. My sister and I counted them every time. And the movie theaters that we could go to were segregated. The white people sat downstairs, and we sat upstairs. Living under segregation did something to your self-esteem, because I remember, as a child, saying, "Well, I want to go on the roller coaster at the beach," and my parents said, "No, we can't go on that." So you grew up with that pall over you that you are not as good as we are. You can't do this. But my parents always said, "One day, it's going to be different." -Mrs. Morial's husband, Dutch, became the first black mayor of New Orleans in 1978. In 1994, her son, Mark, was also elected mayor. I knew a man, an African-American man, who was born here in Baltimore in 1908, in the days of segregation. He grew up on this street, played in this neighborhood. His father was a porter on a train, and his mother was a schoolteacher. When he graduated from high school, his parents scraped to put him through college and scraped again to put him through law school. He wanted to go to the University of Maryland Law School, but he knew they wouldn't admit him because of his race, so he went to Howard University Law School in Washington, D.C., and was graduated first in his class. Two years later, he turned around and sued the University of Maryland Law School for discrimination and won, and his client became their first black student. For the next few decades, he spent a lot of time in court. He became America's leading civil rights lawyer. He represented, defended men accused of rape and murder in the Deep South, risking his life to save theirs. While trying to save two men from being lynched, he was almost lynched himself. He was the bravest man I've ever known. In 1954, he argued a landmark case before the Supreme Court that challenged the legacy of Plessy vs. Ferguson, widely known as Brown vs. Board of Education. That man, who was a victim of segregation, who was a lawyer for the NAACP, who argued Brown vs. Board, that was Thurgood Marshall. In 1967, he became the first African-American Justice ever to serve on the United States Supreme Court. And I had the honor of serving as one of his law clerks there. Marshall understood the benefit of having a written Constitution. Laws can change with the whims of the people, he said, but the Constitution does not change when mores and customs change. In Plessy, the Supreme Court tragically bent to the customs of the day and created the legal problem the Warren Court faced in Brown. -When Chief Justice Warren writes Brown, he realizes that it's going to be monumental. -It's probably the most iconic case in all of our legal history. -It's almost a moral decision. It is good when those decisions are unanimous. -So Warren lobbies his brethren, and he eventually convinces all of them to come aboard, even the ones who are a bit skeptical about whether this was a good idea or not. Brown says separating the races just to separate them is not equal. -I think separate but equal is a different form of being afraid of other people. -You can't have something separate be equal. -The court said the mere fact of racial separation creates inequality, because it is the government creating a second-class citizenship. -It's a badge of inferiority. It's a stigma. -In the next decade, a series of landmark laws and lawsuits outlaws segregation in places of public accommodation, from buses and trains to restaurants and hotels. -Brown vs. Board of Education absolutely changed my life. I went to Cornell University when Cornell University decided that it was time for Cornell not to be basically all rich, white people. I would have gone to a small women's college or a small black college, and I just wouldn't be who I am. -Affirmative action is so difficult because it calls into question two different visions of equality, and the Constitution doesn't provide us a clear answer. -Say you have a job to fill, or someone has a job to fill. -Yeah. -Is it appropriate for them to take into account the skin color of the applicants? -It's a complicated question. I think that people should hire the best person qualified. -What is the right balance between rectifying the sins of the past and focusing more specifically on individuals in the present? -Affirmative action provides opportunities to people who otherwise wouldn't be able to afford those opportunities. -It shouldn't matter what sex you are or what color of your skin. It shouldn't matter anything. Can you do the job? -Because, you know, a purist would say we shouldn't have any kind of race discrimination, and a non-purist would say, yeah, except after 200 years of slavery and then 100 years of Jim Crow, we have a national stain on our honor. -Would it offend me if someone takes that into account? No. -People don't know how to prevent their personal biases from coloring their decisions. -It's not like affirmative action is anything new, and it's only been for African-Americans. Rich, white guys have been affirmatively acted upon for years. -Some groups have a harder time even when they're qualified. -Will affirmative action be here for the ages? Probably not. -When Justice Sandra Day O'Connor cast the deciding vote, upholding a state university's affirmative action program, she wrote, "We expect that, 25 years from now, the use of racial preferences will no longer be necessary." That was in 2003. In not very many more years, we'll know whether she was correct. -Anybody else think it's weird that cops and firefighters have the same phone number? Isn't that weird to anybody? Like, they have very different reputations. If firefighters acted like cops, they'd just be driving around town, spraying people with their fire hoses. You're like, "Why did you spray him?" "I thought he was on fire." "He wasn't -- He wasn't on fire. He just had red hair. That's racial profiling."

Laughter

Siren wailing

-We were coming back from my grandfather's funeral in Chicago when we were stopped by a Maryland state trooper. He said my cousin was speeding. But instead of just writing a ticket and letting us go, he said that he wanted to search our car for drugs. We were pretty astounded by that. -Robert Wilkins was a public defender in Maryland. -And I told him, "We have a right to be free of unreasonable searches and seizures, and we just want to exercise that right." And, you know, his reaction was, "Well, if you've got nothing to hide, what's the problem?" And we were made to get out of the car and stand alongside the highway, and I remember distinctly this car that drove by very slowly, the husband and the wife and two kids in the back. They had their faces smushed against the window, looking at us, these two kids. They were probably thinking to themselves, "These are bad people." So we brought suit against the Maryland State Police, and we learned they actually had a documented policy of targeting African-American drivers for drug searches. If they searched 100 white drivers and 100 black drivers, they found drugs the same amount of time, but yet, still, they were searching black drivers four times as much. -Wilkins exposed a long-time form of racial profiling -- "driving while black." Judge Robert Wilkins is now my colleague on the Federal Court of Appeals in Washington, D.C. -You know, there's an exhibit in the new African-American Museum of this metal box that a gentleman used to hold his freedom papers so that, if he was stopped and questioned as he inevitably would be, that he could prove his freedom. In some small way, you know, we felt similarly when we were stopped in 1992. It just shows that, even though we're making progress, there are remnants of the old that are still with us, and we just can't get discouraged when we feel like we're stepping backwards and just keep pressing forward. -That's been the nature of our history as we become ever more diverse, ever more inclusive, and always a beacon of freedom to the rest of the world. Ernest Hemingway slept here. Now they do, descendants of Hemingway's six-toed cats. The Hemingway home is dedicated to preserving the legacy of author Ernest Hemingway and of his cats. In Key West, anything goes. Chickens need no reason to cross the road, nor a license, for that matter. But when the Federal Department of Agriculture got wind of the museum's cats, it dictated how they should be cared for. -The museum challenged it on Commerce Clause grounds and said, "These cats are marooned at they very southern tip of Florida, will never cross a state line, and, furthermore, they were not bought or sold. They were merely born." -To the Framers, commerce meant, "I send something to you in Boston when I'm in New York." That was interstate commerce of the kind that could be regulated. When two people in the same state traded something, that was not interstate commerce and, therefore, could not be federally regulated. That was the intention of the Framers. -The Framers didn't design an almighty federal government that could reach down right into your backyard or barnyard. -During World War II, there was a farmer who grew grain, and he fed that grain to his own animals. -And the federal government had a program at the time that dictated how much wheat farmers could grow on their own land, and he said, "Hey, that's not constitutional. Why? Because I'm not engaged in interstate commerce." -But in Wickard vs. Filburn, the highest court in the land thought otherwise. -And in a convoluted analysis, the Supreme Court declared that because that wheat would not be used in interstate commerce, it still impacted interstate commerce through some type of displacement. -So they're taking the Commerce Clause and stretching it like a rubber band to apply to any kind of business, when it was originally meant just to be for cross-border commerce, like it says. -I agree, but some scholars disagree. In their view, there's little, if anything, beyond the regulatory authority of the federal government. -In an economy like ours, things really are interconnected, and what goes on one farmer's farm really does affect what happens elsewhere, and so when the Supreme Court says the Interstate Commerce Clause gives Congress the power to regulate things that seem awfully local, it's not just engaging in some kind of trap to expand federal power. It's recognizing an economic reality. -If the test under the Commerce Clause becomes, "Does it affect commerce?" then everything affects commerce, whether you do something or don't do something. -Well, once you have the power over anything that affects commerce amongst the states, then you basically have the power over everything. -Everything, even Hemingway's cats? -The 11th Circuit Court of Appeals, and I kid you not, said that because the museum features these cats on its website and has cat-related merchandise in its gift shop, that is a substantial connection to interstate commerce, and that opens the door for the federal government to come in and exert control. Not making that up. -Since the courts first interpreted the Interstate Commerce Clause so expansively, they've played fast and loose with several other clauses of the Constitution, as well. -As a kid growing up with pianos, I remember the first time I ever broke a string. My dad said, "You broke it, Charlie. You're going to fix it."

Piano notes playing

The first musical director of one of the casinos, he came to me and said, "Charlie, I have a lot of pianos here." So that's what started my career in piano tuning in Atlantic City. -At the beginning of the 20th century, Atlantic City was America's playground. But after World War II, its fortunes declined. The city then gambled on casinos and lost big. Much of America's playground is now a casino wasteland. -This building is not just walls. This building is a cross section of my life. It's like a living, breathing thing. We were blessed to be able to come as immigrants to this country after what my parents had survived, the Holocaust, and the idea of actually owning something that we couldn't be thrown out of was huge. -But maybe Charlie could be thrown out. In 2014, a state judge ruled the Casino Reinvestment Development Authority could seize Charlie's home, using the state's power of eminent domain. -And you have 45 days to vacate, and that it would be bulldozed as all the other buildings right next to me had been bulldozed. -Does the Public Use Provision of the Fifth Amendment have any meaning whatsoever? And the Supreme Court's answer by a five-to-four vote was effectively no. -The Constitution provides that private property may be taken for a public use with just compensation paid. But the Supreme Court rewrote "public use" to read "public purpose," which is much broader. -And the thing that was crazy in the Birnbaum case is they weren't even sure exactly what they were going to use it for or when they were going to use it. -They said, "We don't have to give you an answer." I'm thinking, "Where do we live? Is this Russia? Is this North Korea?" -It's just a naked abuse of government power. -So Charlie went to court. Two years later, the judge deemed the state's effort to oust Charlie a manifest abuse of the eminent domain power. New Jersey appealed, but, in the end, Charlie prevailed. In the infamous case of Kelo vs. New London, Susette Kelo wasn't so lucky. The Supreme Court said, "We can't decide what a public purpose is. We'll let the city councils decide that. That's good enough for us." Funny, but I thought the Justices were supposed to make constitutional decisions. -So the battle goes on. -We're a beautiful city. We have the largest historic district in the country. We attract a lot of people. -I do daytime history tours, a little bit of everything. It's the perfect job for me. -This is a ghost tour. I am not a parapsychologist. I am not a psychic. I'm not a medium. I'm a tour guide. -We were the first walking ghost tour in the city of Savannah, and we've been at it for about 25 years. -We live in a time where information is on your cellphone, so people can quick fact-check you. I've been fact-checked before. It's a good thing I knew what I was talking about, but -- I think the free market takes care of itself, because the bad tours, they just don't last. -Sometimes the federal government curbs our liberties in ways that seem petty, but other times, it's a local government that is the problem. The Savannah City Council decided that tour guides needed to be regulated. -The city of Savannah required people to have a business license, on top of that, to have a tour guide license, on top of passing this test that was full of obscure, gotcha questions. -Where we just walked and where we drive every day, is over dead bodies. They're everywhere. Under your feet, they're everywhere. -You had to pass a physical... -Now, you are still on dead people. Dead people, dead people, dead people as far as you -- Right to that cop car. Dead people. -...and a criminal background check. -Dead people. -And, honestly, the number-one question I get is, "Where is the bench in 'Forrest Gump'?" But you would have to pass that test just to tell somebody where the bench was. -Whether it's a little kid running a lemonade stand, somebody selling tacos out of a food truck, somebody braiding hair for money, I can almost guarantee you that somebody out there is trying to shut that person down because they don't like the competition. That's rent seeking. You can go to the government and say, "Hey, she doesn't have a license. Would you shut her down for me?" -I went down to City Hall with all of the paperwork and said, "I don't think this is legal," and they smiled and say, "Thank you very much. We've been doing it this way, and we plan to keep it that way." -We become a kind of a permission-based society. "Don't do anything until you first get government permission." -I did have a city official tell me, "But just to let you know, the city gets sued a lot, and we hardly ever lose." We found out that Washington, D.C., tour guides had sued and won for freedom of speech, and then we said, "Well, that's what we need to do." -While a court was considering the case, Savannah repealed the law. -

Sighs

Vindicated. -According to the U.S. Supreme Court, in most settings, the presumption is that whatever the government's doing to you is legitimate, and the government doesn't even need to explain it. Boy, do I disagree with that. That is exactly, exactly the opposite of the way it was supposed to be and the way the Declaration of Independence and the Constitution lay it out for us. -That doesn't mean, though, that states can't pass laws on smoking or seat belts or wearing helmets when you ride down the street, but it takes a lot to get me there. There is a presumption of liberty in our Constitution, in our way of life, and that needs to be protected. -In other words, government has to explain itself to individuals, not the other way around. That's the presumption of liberty. -The one thing I learned is that most people don't know what their rights are. -It's all too easy for city council or the county commission or the state of Georgia to say, "This is reasonable, and so we're going to pass the law." And I'm busy doing laundry and carpooling and getting the dog to the vet, and I don't have the first clue where to go to protect my constitutional rights or the energy or the money, and so that slippery slope just starts, and all of a sudden, it's gone, and you don't realize that that's what's happened. -Sometimes, that slippery slope starts at the White House. The President also issues executive orders. That's not written in the Constitution, but it's implicit that, as Chief Executive, he has to direct his subordinates. -So we're going to be signing, today, and registering national emergency. -I mean, everybody loves executive orders when it's their president that does them, right? -The trouble comes when the President stops implementing the laws and starts writing them. -Whether it's $8 billion or $2 billion or $1 1/2 billion, it's going to build a lot of wall. We're getting it done. -When they circumvent Congress, when they pass laws, when they go to war without Congressional approval, everyone loves that. -The truth is we can no longer wait for Congress to do its job. The middle-class families who have been struggling for years are tired of waiting. They need help now, so, where Congress won't act, I will. -I voted for Obama in his first run for the presidency, but I came to strongly disagree with the means that he used. When President Obama went to Congress in the State of the Union and said that he would circumvent Congress, and a very odd thing happened. -So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do. -And what followed was applause by at least half of Congress. They were applauding their own obsolescence. -Here's the test that I ask. If you are an Obama supporter, if he's exercising that power, then President Trump could exercise that same power. -And he did. -This is why, in a few moments, I will sign an executive order. -Abraham Lincoln used his pen, too.

Man shouts indistinctly

Lincoln's most significant executive order helped to end slavery. -The Emancipation Proclamation freed slaves that were in the states of rebellion. -Lincoln used his constitutional power as Commander in Chief to set free almost 4 million slaves. Was it a statute? -It was a proclamation. It was not a statute. -The most infamous executive order imprisoned more than 100,000 Japanese Americans during World War II, issued by President Franklin Roosevelt as a "military necessity" and shamefully upheld by the Supreme Court as "not based on race."

Whistle blows

But when FDR's successor wrote his own law, it was a different story. During the Korean War, President Truman was afraid that the steelworkers were about to strike. You need steel to fight a war, so he issued an executive order, seizing the steel mills. The Supreme Court held Truman's order unconstitutional. -In general, the executive to act has to have authority from the Constitution or from a statute. -But what is a president to do? And the Supreme Court, in opinion after opinion, said but efficiency was not the chief goal of our Constitutional system. -In fact, the separation of powers was meant to prevent a concentration of power in any one place. That there would be friction and sometimes conflict among the branches was inevitable and desirable so that they check and balance each other. -We're here as Americans to speak with one voice to say stop Iran now. Reject this deal. -Presidents have overstepped their bounds not with just executive orders but also by entering into executive agreements with other nations. -There are certain matters such as how you deal with the location of an embassy or something in a foreign government that don't require a treaty. But real substantive matters require a treaty. -But a treaty requires consent of the Senate. -We've had a tendency to get away from this over time, because, as has been argued by some in the executive, treaties are difficult. They're supposed to be difficult. -Presidents of both parties have signed major executive agreements with other nations that they never submitted to the Senate for approval. -

Chanting in Arabic

-Perhaps the most consequential executive agreement ever was President Obama's deal with Iran to keep it from developing nuclear weapons. -What was so breathtaking about it is not only could it not have been ratified by the Senate as a treaty, but a majority of both houses were against it, yet we went ahead and signed it. It's not part of the supreme law of the land. It's just an agreement. Big difference. -The Framers specified one way and one way only that we could enter into agreements with other countries, and that was involving another branch of government. -But that doesn't work if one of the branches doesn't assert itself, and the Senate has never stood up and objected to an executive agreement. Under the Constitution, who has the power to declare war? -That would be the Congress. -When it comes to declaring war and funding a war, that's in the hands of Congress. -I'm not totally sure anymore. I thought it was Congress, but in recent years, it seems like the president has unilaterally done that. -Do you want to take over this show?

Both laugh

Over the years, George, you must have lost a lot of friends. -Yep, and every one is hard. In fact, I wear this bracelet from a soldier that was killed under my command in Iraq to remind me to never forget the cost of war. -When did you first see the wall, the memorial here, and what was your reaction? -It was shortly after it opened in 1982. And my wife and I drove up, and we parked right there on Constitution Avenue. And so we started walking across the grass, looking for the monument, but I didn't know at that time it was below ground. And so I walked up to this corner here, and I turn, and I look straight down the wall. And it was like someone just grabbed my throat. I mean, the scope of the loss just struck me, and the fact that my dad's name was on there made it even that much more powerful. -The Constitution, of course, vests in the Congress the power to declare war, but the Congress hasn't declared a war since we entered World War II in 1941. And of course we've been involved in major conflicts since then. -And it was after the Korean War and the Vietnam War where Congress felt that the pendulum of the balance of power had swung more toward the executive. And as I look back at the intent of the Framers, they were putting the power to declare war in the hands of the branch that were closest to the people. -Yes, of course. Exactly. -It strikes me that their intent was for the people to be consulted when such a huge decision as taking the country to war was taken. -As Hamilton said in Federalist 69, the president was not a king, and the president alone could not take the nation into war. -So the power to declare war is one of the unambiguous grants to the Congress. It's amazing to me that we have never lost a war that we've declared. -What's really sad is that Congress doesn't seem to want to take responsibility to hold the president to the Constitution. Presidents have realized this, and Congress has responded by being even more irresponsible. -When you lose a loved one in combat, you want to know that their sacrifice was acknowledged, recognized, and appreciated, and that's what these monuments do. And our men and women in the Armed Forces trust us not to commit them for too little, and that's why the role that Congress and the Executive Branch and the Joint Chiefs all play in the debate in going to war is so important. -There are more than 400 federal agencies that make rules and regulations. -I don't know what the right number ought to be, but 400 seems like a lot. -I think the Framers would be floored by the federal government we have today. -I don't think any one of them, Hamilton included, expected anything like it. -They would be floored by the Federal Department of Education. -The federal government does reign supreme in many more areas than it used to. -They would be floored at the vast staff that belongs to the Congress. -The Framers would only recognize the government we have today as sort of a nightmarish scenario that they were hoping to avoid by adopting a Constitution of limited and enumerated powers. -I'm not making a value judgment. I'm just saying the founders would be floored. -I don't normally have problems going through airport security. I did have a problem about a year and a half ago. I was going through airport security in Washington, D.C., and they pull me out of line, brought me to a side room, and started grilling me. They asked me tons of questions. After like an hour, I found out the reason was because my business cards, at the time, had a picture of a grenade on them. And they had seen it in the bucket, and they were like, "That is suspicious," which I think makes perfect sense, 'cause you know how terrorists usually carry business cards, like, to hand out at all their terrorism conferences? When you give the government power, it's not going to ever give that power up. You can imagine, like, "Oh, well, it'll use it for good reasons. It'll do good things with it." There's always unintended consequences, and there's always people who end up in power with the power that you just gave the government. -The Framers gave us three branches of government with carefully separated powers. But the Congress and the President then created a fourth branch, so-called independent agencies, a whole alphabet soup. -They produce regulations, which are the primary law now. We live in the age of regulation. -There are over 180,000 pages in the Code of Federal Regulations. In 2016, the Congress passed 214 new laws, but the federal regulatory agencies issued 18 times as many, 3,853, and we didn't vote on this, and neither did our representatives in Congress. How did this happen? -What is the big one in the 1930s, the mother of all agencies? -An act was passed creating the TVA, the Tennessee Valley Authority. -Let's dam the river. Let's get power from that. Let's teach farmers to farm more productively. -There was this belief back in those days that essentially you could have government by expert. Just bring in the right experts, and they'll know exactly how much coal we should produce and how many sneakers to have. -The architects, the research chemists, the agricultural experts. -To operate a scheme like that, you have to have executive agencies. That's where that came from. -With what safeguards have we delegated these powers? To whom exactly have we delegated them? What's the kind of scope? With what provisions for judicial review? -There is nothing magical about the institutional forms that the Framers gave us, and if things adapt over time and seem to make sense, then that's good. -And if the Legislative Branch chooses to delegate so much of its power or pass laws that basically put all this power in agencies, then it seems like that's their prerogative to do it. -Now we have a federal government that intrudes into every aspect of everybody's life. I don't think that there is a person in the country who can go through a day without violating some federal regulation or rule. -Large chunks of the federal government are unconstitutional, because there's simply no enumerated power to authorize what the federal government is doing. -When you talk about agencies, there's one word that's out of the discussion, and that is states. -Now the federal government routinely taxes and takes more money than it needs solely to give it back to the states with conditions. Now we have agencies that have every element of a government unto themselves. -And they combine all the powers that the Framers so carefully separated. They pass rules that have the force of law, legislating. They enforce those rules, an executive function, and they judge who's been in violation of those rules, a judicial function. Perhaps worst of all, as the Framers feared, they are unaccountable to the people. -That is one of the most fundamental errors you can make in all of political science, to combine those powers in one branch, and we have done it. -When agencies write their own laws or presidents write their own treaties, whether we notice or not, they are chipping away at our liberties. But sometimes the people themselves are the problem. -I'm media. Can I talk to you? -No. You need to get out. You need to get out. -No, I don't. -There's 10 amendments. There's the Bill of Rights. And it's a lot like the 10 commandments. Everyone has their favorite one, and then we sort of ignore all the others. You imagine that, "Well, if we crack down on free speech, then it will be free speech that I don't like that gets cracked down on." No, no, no, no, no. It's going to be you in like a few years. -You need to get out. -I actually don't. -Alright. Hey, who wants to help me get this reporter out of here?! I need some muscle over here! Help me get him out! -I think a lot of students see speech that they don't like and speech that is harmful and hateful and awful -- They are attacking norms of free speech that, once broken, are very difficult to get back. -This is a First Amendment that protects your right to stand here, protects mine. -We are teaching people from kindergarten through college that they have a right not to be offended and that they have a right to prevent those things that might lead to someone being offended. -We've lost that idea that you should counter bad ideas and bad thoughts with good ideas and drive them from the marketplace. But rather, now, it's censorship. It's just, "We're not going to let people say those things." -Anti-gay...go away! -Anti-gay...go away! -Racist, sexist, anti-gay! -Racist, sexist, anti-gay! -We have the right to defend ourselves, and so this, shutting down Milo Yiannopoulos and doing whatever is necessary to do that is our right to self-defense. -If you neutrally defend certain principles, you are not going to like the people or causes that they end up protecting in specific cases. -Once you yield to this temptation to silence those you disagree with, to even arrest them, it becomes an insatiable diet. There's more and more speech that you find unacceptable. -There are forbidden words. There are literally forbidden thoughts. I mean, this is more than dangerous. This is tragic. -Shut it down! Shut it down! -Shut it down! Shut it down!

Indistinct shouting

-The Civil Rights Movement would never have occurred if speech that made people uncomfortable or that thought to be hateful was suppressed, because, guess what, Martin Luther King wrote his famous letter from a Birmingham jail, because his ideas were considered hateful and dangerous. -You don't want to take away the platform for bad people. -I'm going to let you voice your opinion. If I don't like it, I'm not going to, you know, subdue it. -You want to give them somewhere to speak so that you can see their ideas and criticize them thoroughly. It's very important. -It's one thing to protest someone's right to come here and speak, but it's another thing to create this much amount of destruction and violence and hurt and harm to other people.

Indistinct shouting

-We have to learn to function with complexity. Everything isn't black and white. Everything isn't up and down. -I think what we're learning, more and more, is how difficult, how fiendishly difficult, it is to actually preserve free society and its basic institutions. -Go ahead. -

Speaks indistinctly

-400 people will become American citizens today, taking the oath to the Constitution. We want new citizens to understand what it takes to sustain liberty, and so they have to pass a civics test. And to prepare for that, they study American history and the Constitution. -It was a difficult test, but it was good to know. You know, it's good to study. -Where are you from, Edward? -I'm from Argentina. -I'm born in Bangladesh. -I'm from Somalia. -Well, welcome to the United States. -Thank you so much. -To citizenship. This is the lifeblood that renews us and continues to do so after 240 years. -"I..." -I... -"...hereby declare on oath..." -...hereby declare on oath... -"...that I will support and defend..." -...that I will support and defend... -"...the Constitution and laws..." -...the Constitution and laws... -"...of the United States of America..." -...of the United States of America... -"...so help me God." -...so help me God. -I want to be the very first person to congratulation you on becoming citizens of the United States of America.

Cheers and applause

-The great safeguard of liberty is a government of laws and not of men. Our Constitution creates that government, but it works only if we the people know the Constitution and protect it. -We've been blessed. We've been lucky. But that may not last. -And, too often, people just think, "Liberty just magically happens. We're entitled to it." -Our Constitution is only as strong as the people and their support of it. -We would miss the Constitution terribly if we didn't have it. -Republics are delicate. They have to kept going over time. You can't just start the machine and let it run. -Well, Dr. Franklin, what have you given us? -Well, sir, a republic, if you can keep it. -That will be a challenge. -I think those are the most chilling words of any Framer, because what he was saying is that, "We've given you a republic, but it's yours to lose. Every generation will have to step up and defend those liberties." -Or as an old song put it, "Freedom is a hard-won thing. You have to work for it, fight for it, day and night for it, and every generation has to win it again." O0 C1