[applause]

>> you are all very kind. thank you and welcome to all of you in the packed auditorium. those of you who could join on line for a gentleman who needs very littlee introduction and wo is a great friend of the heritage foundation and no doubt a great friend of many of you individually. it still is a pleasure to introduce senator mike lee and i will introduce in this way, not justos as one of the most thoughtful members of the united states senate, not just one of the patriots of our age that someone who in spite of all of the challenges facingac this grt republic, remain steadfast. it is a wonderful privilege on all of us at the heritage foundation to introduce a friend senator mike lee. [applause] >> thank you.

>> senator, good afternoon. >> thank you, it's good to be here.hi >> we are going to get into this wonderful book which i've told dyou earlier i have read so i d my homework or you can decide how well i did a some of questions. before we get in the book there's a lot going on in washington this week so if you don't mind a questionn about tht in what your system in this and what's happening to the country right now? >> a lot is happening putting the fact that we have people who want to protest at the homes of supreme court justices and we have got federal statute that makes it a felony offense. law enforcement personnel can arrest people for doing that and that's breeding other problems like those that we saw at the home of justice cavanagh yesterday morning. we also have got a country that's respondingso to a tragedy

of understandably wanting to respond and not always responding in a way that is respectful of the procedures required by our constitution. >> that the segue to talk about book regarding supreme court. i have a couple of passages that a key and non-and there are couple of things you can highlight. we are going to get your questions in time. before that what motivated you? was there live old moment because you read this book in a good start in the fall of 2021 the first debate between president trump and then vice president and former vice president biden. the question was asked to joe biden will you pack the court and i assumed the answer would be no, of course not. that's a idea. joe biden as a the senator has been very clear about this.

he said it was a bonehead idea back then it would be a boneheat idea now and i thought he would stick with that. that has after all become something that has united people along every point among the old ideological spectrum. his so he uttered some intelligible answer it sounded like i can't say yes because if i say yes i'll get criticized so i'm just not going to speak to it. that worries me. i hope my concerns will be a late in the early months of the presidency. they were not. it instead created a commission to look at the idea and that was warning bell number two. after warning bell number two nobody has written a book and no one has explained it comprehensively white

court-packing is so bad and why it would universally condemned the better part of last 85 years perhaps most importantly no one has ever told the story of the lasting and damaging impact that the last court-packing attempts have not only on the supreme court itself but on all of us our system of government and the separation of powers between the three branches and between the state and federal government. >> thank you for writing it. sometime in the timeline when it was apparent that the president of the united states joe biden was serious about it and those of us on the right but across the lyrical spectrum took for granted that we are always going to win an argument about keeping the supreme court at nine justices. let me read the statement from your book and your eloquent words. that consistency of stability or would give our systempu it's

reputation as the best in the world. free from political influence a reputation that has serious implications for the nation's wider cultural economic health and to conclude this paragraph, if all roads lead to a political rubberstamp court for either party that reputation would be wrote it and disappear. >> are we seeing the prospects for that? >> yes, we are seeing it and it's no coincidence we are seeing that at the same time. it's difficult to unravel the from the at times. they are doing it because they want to pack the court and the reason i want to pack the court is because -- the problem is they have created a. they have politicized the court by having the court take debatable matters of public policy and move them beyond that

by the strapping them on to the constitution. roe v. wade is a perfect example. the constitution says nothing about abortion. not just that it doesn't contain the word but it contains no language referring to the concept of abortion. what thatns means is people elected lawmakers typically at the state and local level to decide these issues. 19739 lawyers wearing words a few hundred yards from her decided they couldn't make it part of constitution even though it's not in there. what we are seeing now is a predictable foreseeable result of that. 49 years later we realize this is not it judicially manageable standard. there is no foothold in hundreds of years of precedence leading up to the constitution. there's nothing in the constitution about it and it

subjectsts all these inconsistet applications. none of these things suggest this will survive in the president and happy to say is on the verge of being jettisoned that the left is furious about this because they are content to fight these particular battles in the court of public opinion or a legislative latte. that's why they are pushing back. >> we will get into some of the contemporary things but you do a really good job in the book of tracingto the history and if you were to tell people in this audience on line we would think about the 1930s but what i edreally appreciate about the bk as you talk about progressivism. give the audience a sense of how important that foundation is the regressive does doesn't have the

contemporary movement to >> woodrow wilson if one of my kids wants to really hurt me, they will come up with a fake argument and say something like woodrow wilson is one of their favorite presidents. it really hurts. woodrow wilson was the first american president to hold ph.d. and he was the first americann president to be openly towards the constitution and he genuinely was. he had a religious zeal for the progressive cause in this part of that he believed he had to have experts unvarnished unpainted experts to govern the unwashed mass. they should be kept away from jury decision in government. of course it didn't work. woodrow wilson was openly toward it. he tried to a move away from the

first president to push aggressively for the weakening of the concept of federalism. the supreme court was astute and alert enough to push backk on that. it wasn't a perfect resistance. an e effective resistance. but he planned -- planted a seed in those seeds later found more soil couple of decades later under the of franklin d roosevelt to >> walk us through if you don't mind senator that story. i think probably the audience here in on line that people can recount the how it said but one of the great purchase the attempts by fdr and his political allies t to expand the court. i think that has some relevance. >> okay so in chapter 4 in a

chapter 5 i walk through starting with chapter 4 explaining what happened to president roosevelt during his first presidential term. he wanted to be the savior of the american people during theas great depression coming into town on his white horse and saving everybody needs going to do it by dramatically expanding -- expanding his role the united states and the attorney general with respect to the problems facing the american people during the great depression. if in his view required him to advance legislation aggressively giving the federal government a significant role in labor manufacturing agriculture mining and a number of other cavities that while economic in one way or another affect did commerce one way or another were not themselves interstate commerce.

it would take place in one state at one time. he nonetheless advanced it to this aggressive argument under article iau section 8 clause the for commerce between the states. it encompasses the power to regulate things. for the first 150 years of the republic that power has been understood by essentially two things to give congress the power to regulate interstate commerciall transactions on selling something to you. congress has the power to set up al system of law that will goven that transaction by imposing a negative power on state law that would interfere. the other principle power is the power to regulate channels and edger mentality.

we think of those as interstate airways and waterways roadway canals and so forth. this was really a new frontier that hee would push. remember perhaps one of the most important elements are one of them, when the most important elements of the constitution is the structural protection the vertical protection wewe call federalismsm at the state and local level. there's the horizontalal protection in the separation of powers limiting the responsibility of the branch that makes the law that enforces the law. the way to interpret the laws to resolve the dispute in a specific case. he didn't like particularly federalism because it would serve as an impediment for him to be the savior of the american people during the great depression. you've got to interpret the

commerce clause to give calmer -- to regulate anything. pretty much everything affects this. it's like the butterfly effect the concept that a butterfly or swarm flapping wings and the amazon summer in brazil will affect wind currents and weather patterns. the supreme court thankfully had alreadyy rejected the argument presented during woodrow wilson's time in office. culminating in a case called -- that dealt with a specific type of child labor. when fdr came along they stay close to that precedent and they pushed back on it and they invalidated a lot of fdr's legislative agenda. this happened in slow motion over the course the next four years they got tired of losing

by the time he won re-election in the fall of 1936 he said that's it, i'm going to show them who's boss. that's when he started, he had for some time been trying to demonize and delegitimize the court denigratingo individual justices who were opposed to him most notably the four horsemen is what he called them. and the one i regarded the intellectual leader among them the only supreme court justice ever to be a byu graduate. a very handsome man. >> that could lead to a question from the d audience. >> the george sutherland professorship of law from byu. he the four horsemen with

passion. most of the time the four horsemen to get at least one of the moderate to join with the four horsemen including and especially associate justice robert and in their interpretation of the commerce clause. he was nearly unanimous in pushing back on fdr's intrusion into federalism. he started demonizing the court especially the four horses. saying they were out of touch they are lame. they pushed the nickelback. and it reached its crescendo to the point where he was ready to push in 1937 legislation giving himself the authority to appoint as many justices potentially bringing them -- the court up to

15. there was this labyrinth of complicated formulas including giving him the power to appoint and one new justice for each justice to the age of 70 on existing court. he founded his lead sponsor for that. a u.s. senator from arkansas serving as senate majority leader. he asked joe robinson if he would agree. he was determined. here's the problem. the legislation ultimately failed. it failed in a way in part because it succeeded in intimidating and bullying the court. the court had after all just new chambers. it moved april 12, 1935. the beautiful marble palace. they didn't want their parade

rained upon and apparently owen roberts was persuaded and bullied and intimidated because in a case decided two years after they had moved in april 12, 1937 a case that's rarely discussed in civics classes rarely discussed in college and not discussed very much even in law. in that case owen roberts tried to switch his vote to join the three musketeers those loyal to the president on the floor along with chief justice pew and rewriting the commerce clause. congress could regulate every act vividly as it affected interstate commerce. from that moment forward we went frombe being a limited purpose

federal government's to a general-purpose national government. that in turn led to congress choking on the volume of its own power. all of a sudden you're in charge. the sky's the limit so congress adopted making laws and started delegating the lawmaking power to unelected and unaccountable bureaucrats. that in a nutshell is why today most of our laws are measured by weight volumewo economic impact and unelected bureaucrats. that's why we work several months out of your the year only speak told it's not nearly enough. all of these things came about as a result of fdr's court-packing plan which failed legislatively. he did it bye bye bowling intimidating the court into submission. >> i have other questions but i know the audience wants to be part of it so if you have

questions raise your hand in one of my colleagues will come to you. please wait for the microphone to give your question we will the microphone is coming your way. >> hi. i happened to be a graduate of woodrow wilson senior high school washington d.c. which they just change the name by the way. my question is this, in the event that the current president of the united states does not complete his term forward ever reason, what can we and especially social conservatives whatever label you want to put on it, what can we do, can we do or should we do legally speaking to prevent kamala

harris s from making the next supreme court appointment? .. f president biden doesn't complete this term of office. what could we do to prevent her from being elected president or just i guess by operation a law. she would be president right that could you know, right and so what could we do to stop her from putting anyone on the court? yes. yes for making legally from making the next supreme court. justice appointment. okay. yeah, we did not start with a softball. right, right. okay. so we've got an election coming up in november. it's an important midterm election. it's an election in which republicans appear almost certain to regain the majority in the got election coming up in november. they will regain the majority of house of representatives. i am now becoming increasingly confident were going to the same thing in the senate. if we have control the senate, and will have significant amount

of essay and who can get confirmed to what position. this could turn several different ways. i do not know if a president harris or a president biden for that matter might react to a reality in which we take the majority during that second half of the presidential term. it's possible it would take a pragmatic turn and they would take account of the changed circumstances and nominate someone who could receive a majority -- mecca support from the majority of theen senate. there are so many variables within that. i cannot reduce it to a single answer with a single degree of certainty.

there are a lot of ways that could happen. it would look very different it think than the traditional nomination we have seen from this administration. which of them very, very radical. if you if we compare them to tha obama administration nominees these are really different even from those. even still i would say of course you and your colleagues exercise great scrutiny over president biden supreme court joined the court soon. you're very thorough and got a very fair shake from our side so to speak. we cannot count on that. which also speaks were the points you make. it's so radical they really want to play by different rules. >> further radicalizing they control 70 institutions. higher education, education generally, news media, entertainment media and so many corporations.au

out of the word is lazy, reckless, or sloppy because of the fact it's gotten so easy for them to do so many things. that in turn has made them a little too aggressive for their own good. >> next question, will come to this hydrogel might right there in the middle. >> thank you very much. my name is carl dimarco. yesterday the atlantic put out an article on this very topic of the supreme court i have two brief questions. one is the accused supreme court of developing this idea of the judicial supremacy after theo civil war in order to prevent -- michael l southern states to allow granting rights to newly freed african-americans. i don't know if you could speak to that, if it is true. and they said it is not in the

constitution. it is not the founders intended. so i do not know if you could speak toxa that. >> judicial supremacy this is a term i have heard around recently. i've never heard a consistent definition of that. not entirely what people mean by it. the supreme court does have the ultimate authority to decide properly brought before the jurisdiction of the court. and that means where there is a disagreement as to what a particular provision of the law. whether it's that story or constitutional about what it means, they would have to decide that case. the issue thehe final judgment r both or on the term judicial supremacy as if it has trade meaning beyond that. i think some of those suggests

the court does not have the power to just issue advisory opinions, speak broadly to all things that has the ability to issue rulings and interpret provisions of law. which it certainly does. i would have to read that article to figure out what they mean by judicial supremacy but that word throws me a little bit. o >> question got her in the first row will take that one before moving back to your side of the room thank you for. >> thank you for your comments. i f wonder if you could speak me about president biden's motivation for supreme court commission and also what you think itit accomplishes or it accomplished his goal? >> it's always tough to know what another personrt subjectivy intended. i hadot to be careful not to clm to have attributes of clairvoyance i definitely lack.

what i do know is what effect it has. if one didn't want to pack the court, one would need to move what i refer to is move the parameters around what is considered appropriate, legitimate political discourse. what is considered an appropriate proposal and what isn't. so if you wanted to normalize it you might put together a big commission law professors and distinguished retired judges. he put that together but the brain trust in place. the standard progressive plate by the ways what you're going to do were going to have the experts decide. and then you have them come out with something, realize the countries not quite ready to accept the recommendation. let's pack the court. you come out with non-

conclusion the response for the last couple of chapters talk about this as well but by coming out the non- conclusion it is reminiscent but. [inaudible] >> is the same conversation. >> if you choose not to decide you still have made a choice but by choosing not to decide, by choosing not to come out against court packing, they really were putting the perimeter of their approval on it. so that is exactly what i would do if i were him and i wanted to do this. alsore consistent with this accidental admission and debate. i can't answer yes there will criticize ms. i'm not going to answer that isat my best effort. >> good job senator. the question here you are there

look at the camp of the microphones when you come your way progress also won it noted i did not quote nickelback or site with approval. let the record show. >> thank you very much. satterlee thank you for being here and speaking. i know you said you don't have clairvoyance i went to t your opinion is there hope for a return and check in this sentence can be sorted out. >> a great question. there is a me explain my vision for how that happens the best way to enhance respectful bipartisan dialogue follow with the constitution says t and do t requires and has required the entire time it is been ineffective.

we're supposed to be in charge of national defensese immigratin of weights and measures, bankruptcy laws regulating trade for nations with indian tribes granting letters of marque and reprisal was tempted today of one of my sons mark mar qe. if we focus on those things if you focus on these things we do much better job on those. would not have eight buddy holly era antiquated immigration code. >> your warming up at the buddy holly reference that's getting better. we also would not have open borders we would be more focused on the few things we are supposed to do.

the problem has been since apris cowardly flipped in response to franklin d roosevelt dastardly threat been a national government with general jurisdiction. we are a very diverse country paid we comeiv from diverse backgrounds for there is enormous diversityni in opinions region by region, state by state. the filming fathers do this. a lot of it was true. it was no less true then than it is today. we think were somehow special and we will do better human nature is what it is. the higher you go in terms of level of government going to be defined consensus. after respectful federalism again that's my whole point be

an exaggeration she was based on a dairy told a couple of friends i don't think i could ever run for that i would run a u.s. senate campaign based on federal campaign that's the way we get there. >> good afternoon senator my name is sophie i'm interning on the hill and from the great state of florida. earlier today a shaky legal ground of roe versus wade was ruled on is not an enumerated right in the constitution. however, couple other rights we generally accept,ht right to privacy comic gate marriage, neither are which explicitly enumerated in the' constitution. so i am wondering what is the distinction between a legally sound right like the right to privacy which again asked expressly enumerated in the

constitution. in the feeble legal grounds you suggest row versus wade is based on. the distinction between those two rights per. >> great question. i'm going to answer this is simply as possible ipo is all that radical will be here for hours. short answer to your question is constitution does protect privacy for there is nothing in that thech right to privacy whih is part of the problem with this line of cases constitution does in many respects sloat in the fourth immense all about privacy. as for as a distinction between row the gay marriage case, look

i would have decided that differently and have indicated as much. that said it's very different than the dobbs case and the dobbs draftt opinion.ry and as a matter of where the country is. i don't have the same amount of national division remaining with regard like there has been ever since wrote. when you apply the doctrine the court looks among other things at how judiciallyag manageable e extent to which it is created uncertainty and chaos based on the difficulty or ease of which it is applied' justice does a wonderful job of this in his dobbs opinion. for any of you who have not read

the opinion, regardless i feel about abortion, regardless how you feel about gay marriage or anything else, you really should read it. it is very into constructive, it's informative and persuasive. he very ably and thoroughly differentiates cases from row. i have seen a lot of people make that argument that if dobbs overrules row that another case will certainly overturn. i just something that's accurate. >> come to center microphone coming your way sir. thanks hi i'm james i'm an intern on the hill from indiana. my question for you today senator lee, as executive branch structure of the supreme court in order tohe remove one of the last checks and balances for

their cause site legislative bureaucracy? or is there possibly another motivation targeting the supreme court? >> the first half of your question to answer the first half of your question is yes. the whole point is making the case they are talking about expanding the court not based on an assessment. not an issue that's insufficient to do the work substantive outcome and cases which makes it wildly i inappropriate. institutional amount that lock him in tickers not an nickelback fan. someone accused in a few years ago and ever since i felt the need to defend him on that

point. >> exactly, exactly. i do think one of the things that could be on the chopping block, in addition to row is the legal framework that has given this on fettered arraign to the federal administrative system. the administrative law system. and so i suspect that could be part of it. not just row, their ongoing progressive commitment to the erosion of federalism and the separation of powers. by the way we deviated from both of them and lockstep they have together i pinpoint then deviation for federalism and the deviation for separation of powers. i trace it all back to april 12, 1987. you cannot deviate from one without deviating from the other. we take y steps to restore eithr

one will restore the other. that's part of the game here. >> great question. senator, as i told her the questions would be fantastic don't you agree? >> fantasticic. less question for you i have two cute some closing comments as a beet wrap up here and thank you for being here. but swerving for the political and then academic. i have people in this audience have a lot of interns hear from the hill. people who are not interned you look like people with expertise. was that well said john malcolm? i would see people online of varied backgrounds. all of us, this is the point of regardless of what you're doing now. but to lead this auditorium and play some tiny role int preventing court packing from happening, what advice you have?

>> read is saving nine. [laughter] >> well played, well played. i mean seriously if you could pick up a copy of it can borrow one from me progressive virus a bar one for me. >> it would be great if everyone bought one. even if not everyone buys one, everyone should read this but i wish everyone in america would reach read this book. the recent things that this can take hold today is because for reasons i do not entirely understand these stories that i tell this book and the connections i make the changes and our law, and our legal system, and or deviations against the constitution have been kind of cleansed from what we are being taught in school. they just don't teach this stuff anymore they do not teach federalism at all.

norley teach the connection between federalism and separation of power printed meet many take power from the states the people moved to washington, it is immediately going to create a logjam and congress will outsource the lawmaking power it is too difficult and politically perilous to weigh in on the issues and line drawing. we passed a law that says good line. to commission why the power to make, interpret, enforce with applicable general law, make it so. as a result we are never accountable. when bad judgments are made by commission why with the epa, osha or whatever it is. people complained to members of congress those barbarians went to write them a harshly worded letter that will teach them. if it that were our job. a

we created the beast. and it all started as a result of fdr court packing effort our constitutional message our experiment in self-government really depends for its legitimacy, its sustainability, its vitality. with an independent judiciary. that's anthony scalia it uses a any tin horn dictator can have a bill of rights. it depends entirely on whether there are protections in place to protect p the people and freedom against the dangerous accumulation of power and the few. without the independent judiciary the structural protection that are upstream. cathe natural condition precedet for alright and all liberties. cannot exist receipt nature and tendency of every level of all

leaders of every level to want to cumulate more power. unless you got an independentl judiciary applying freestanding principles designed to protect liberty that will fade and that will fade quickly. most of the stuff is not being taught anymore not in junior high or elementary school, not in high school not in college, not even most law schools. so what i've tried to do with this as someone who is watching supreme court arguments were fun at the age of ten, long story. i was there with my friend chipt cooper, literally. i tried to compile a lot of these lessons i picked up through my life in bits and pieces that i have picked up from case law and legal trends and put them in one place. you will never lose another argument politically it relates almost anything washington does. but more importantly you'll be well equipped to help us build a tground swell effort to demande

have an independent judiciary because we cannot have this with court packing. please help me save the court. help me save the constitution. thank you. [applause] [applause] >> american history tv, saturdays on c-span2 exploring the people and events that tell the american story. at 8:50 p.m. eastern professor of music at american culture at the university of michigan recounts the history the star-spangled banner and how its meaning has evolved. and at 10:00 p.m. eastern author professor reports on how black soldiers between the civil war and world war i he was military service to further civil rights. exploring the american story britt watch american history tv

saturdays on cspan2. find a full schedule on your program guide or watch online anytime at c-span.org/history. ask book tv every sunday on cspan2 features leading authors discussing their latest nonfiction books. at 3:00 p.m. eastern project founder james o'keefe assures his book american muck breaker, discuss assisted journalism career some of the investigation this group is undertaken. and then at 9:00 p.m. and they're book battle for the american mind, fox news host and co-author david goodwin argued k-12 school system is teaching children to hate america and its history. watch book tv every sunday on cspan2. find a full schedule before your program guide or watch an online anytime.

now available on the c-span shop go there today to order a copy of the congressional directory's compact spiral-bound book as a guide to federal government with contact information for every member of congress including bios and committee assignments. also for state governors and cabinet. order your copy today at cspanshop.org. or scan the phone with your smart phone. every c-span shop purchase help support c-span nonprofit operation. >> welcome to our viewers. mainly welcome. an old friend of mine i am so excited for herer new book thats out. we are going to have a conversation now for about 45 minutes -- 60 minutes. i wanted to start by saying iin have known linda since the late '80s when i started covering the supreme court too. d