Judicial Activism

This is a partial transcript from "The O'Reilly Factor," April 19, 2005, that has been edited for clarity.

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BILL O’REILLY, HOST: Thanks for staying with us. I'm Bill O'Reilly. In the "Unresolved Problem" segment tonight, the battle of judges who are making law rather than interpreting the Constitution is raging, as you know.

Today The New York Times (search) editorialized against Supreme Court Justice Scalia (search), a conservative, for allegedly doing just that.

And a few days ago at the Yale Law School, left-wing financier George Soros (search) sponsored a three-day event, to, among other things, examine the possibility of a progressive Constitution.

Joining us now from Chicago is Cass Sunstein, who attended the event, and teaches at the University of Chicago Law School. Professor Sunstein is also the author of the book, "The Second Bill of Rights."

OK, let's run these down. Correct me if I'm wrong, because I'm taking this out of press reports, and the press is notoriously incompetent in the USA at this juncture in our history, unfortunately. You want to change the Constitution to provide everyone with the right to an education, a home, medical care, a decent job, freedom from monopolies, nutrition and clothing, correct?

CASS SUNSTEIN, UNIVERSITY OF CHICAGO LAW SCHOOL: No, what I'd like to do is to recover the vision of the greatest president of the 20th century, that is Franklin Delano Roosevelt, who thought that the nation, not the nation's judges, had converged on the right to education, the right to be protected from monopoly, the right to protection in the event of unemployment or disability.

O'REILLY: All right. Well, I think that most Americans agree there should be safety nets. But the disagreement comes is when you provide people with a home, when you provide people with clothing, when you provide people with jobs, as they have a right to with medical care. That the government pays for everybody's medical care.

That's when you get into hey, the founding fathers didn't want the government to provide it — they wanted to set up a system where you could achieve that if you worked hard.

SUNSTEIN: Well, we have to be careful about that. The founding fathers did think that the taxpayers should subsidize things like...

O'REILLY: Then why didn't they put in a federal income tax?

SUNSTEIN: Because they thought their own tax system would protect, for example, the right to private property and the right to freedom of contract and the right to a jury trial, all of which require a pretty ample tax system.

O'REILLY: It doesn't make sense, though. If the founding fathers thought the government of the United States should provide material things to people, they would have instituted a federal income tax right away. Instead the government waited 125 years in which to do so.

SUNSTEIN: OK. We're confusing a couple of things. The first question is, did the founders intend to protect the rights that Roosevelt wanted to protect? The answer to that is clearly no.

The second question is, did Roosevelt want, or do I want or do sensible people want the current courts to interpret the Constitution to protect the rights that Roosevelt treasured? And the answer to that is also no.

The question that we're exploring, I hope, is the question whether our nation is committed to a right to a good education as President Bush is committed to. Is it committed to some type of Social Security system? And I think President Bush is right to call for some rethinking of the exact structure.

So the question is what are our basic national commitments.

O'REILLY: All right. Again, I don't think anybody has any problem with all that. But here's something that came out of the conference at Yale. Create a, quote/unquote, "stakeholder society," where every citizen is given $80,000 at birth by the government, which cannot be accessed until they reach 18 years. The state should be financed by an annual wealth tax, you know, again, taken from the wealthy, given to the people who don't have it.

So everybody gets $80,000 when they're born.

SUNSTEIN: Yes, let me explain that.

O'REILLY: Are you for that?

SUNSTEIN: No, I'm actually against that.

O'REILLY: OK. But this is what Soros is putting out.

SUNSTEIN: Well, I don't know if George Soros is in favor of $80,000.

O'REILLY: Well, as long as it's not his money, he's in favor of it.

SUNSTEIN: He's got a lot of money, but not enough to give $80,000 to every American.

O'REILLY: You know, but his money isn't in America, so he's not going to get taxed.


O'REILLY: His money is in foreign countries, where they've indicted him for crimes and convicted him in France. This is the biggest phony on the block. Come on.

SUNSTEIN: I don't have a lot to say about George Soros, on whom I'm not an expert. But I can tell you a little bit about what the idea behind this $80,000 proposal is.

O'REILLY: But you're against it, right?

SUNSTEIN: Yes, I'm against it. But I'll tell you what I think the idea behind it is, which is what I'm for. Which is thinking that everyone in the United States is a citizen. This is not a nation of separate identities.

O'REILLY: But we're not all citizens. We've got 15 million people running around here who aren't citizens.

SUNSTEIN: OK, everyone who's a citizen is a citizen, and we share certain commitments and respect for one another.

O'REILLY: How about private property? Should we be sharing that?

SUNSTEIN: Yes. Absolutely.

O'REILLY: That's against — there you go. That's against the founders and against the Constitution.

SUNSTEIN: No, I'm not...

O'REILLY: Private property rights were sacrosanct.

SUNSTEIN: I'm very much in favor of private property rights. But if we're going to talk about the framers on private property rights, their own view of protection of private property rights was actually, history suggests, a little weaker than ours.

I think we've gone in the right direction giving more protection to private property than the framers thought.

But what I think Lincoln had right, and you know, Lincoln, along with Roosevelt, two of our very greatest presidents, is that private property should be widely shared. And we want to do that not by stealing from some people to give to others, but by creating opportunity.

O'REILLY: See, I don't understand that. Look, I want to create opportunity. I think everybody should have the equal right to pursue happiness. But when you say stuff, Professor, like private property should be wisely shared...

SUNSTEIN: No, I said...

O'REILLY: No, you said private property should be wisely shared. Who makes that decision?

SUNSTEIN: Actually, I said widely shared.

O'REILLY: Oh, widely shared.

SUNSTEIN: But I didn't say what the government — you have to listen, if you would be so kind. I didn't say that the government should take property from some to give it to others. I said the government should create a situation in which everyone has an opportunity to get private property.

O'REILLY: I'm all for that. I'm for that.

SUNSTEIN: So you’re a Rooseveltian, despite yourself.

O'REILLY: I admire Franklin Delano Roosevelt, but I don't think he wanted to impose a semi-socialistic system on our country.


O'REILLY: I think it's been perverted by the left wing, which say, oh, yes, he wanted to give everybody a job and a house and clothing. That's what he wanted. He didn't want that at all.

SUNSTEIN: Actually, you're right and you're wrong. You're right in the sense that he didn't want to say that he personally would give everyone a job. He may not have been quite as rich as George Soros, but he, too, didn't have the capacity to give everyone a job.

But the rights with which you began were actually stated not by me but on our 20th's century's greatest president on the eve of victory in World War II, in which he said, "It's time to think what the nation is committed to." The nation is committed, he said, to a second Bill of Rights, including the right to a good education, the right to freedom from monopoly. So it might be a good idea to recover what the greatest generation's leader was actually saying.

O'REILLY: I have to tell you, Professor, I've been to 58 countries, and there's more opportunity to pursue happiness here than anyplace else on the planet. So we're not perfect.

SUNSTEIN: We have an amazing country.

O'REILLY: Right. We're not perfect, but our system of capitalism and of private property rights and of human rights works.

SUNSTEIN: I agree with you entirely.

O'REILLY: I don't want George Soros in charge of this country. I think he's a rank socialist and a hypocrite. I'll give you the last word.

SUNSTEIN: OK. I'm not speaking about George Soros, on whom, as I say, I'm not an expert. What I'd like to emphasize is the Constitution changes every 20 years. And it's not the same now as it was in 1980. And what we ought to do is think of a judiciary that will ensure that the Constitution does what it's supposed to do.

O'REILLY: OK. I'm for that. Professor, thanks very much. Always enjoy talking with you.

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