A Conversation on the Constitution: Judicial Interpretation Part 1 Volume 1

this video is a project of the Annenberg Foundation Trust at sunnylands you what are some of the different approaches the Supreme Court justice is used to interpret the Constitution and what are the advantages in disadvantages of each if you're asking about fundamental method of interpretation I think you're asking about the major division not just between the justices on the court but but in in American jurisprudence generally that is there are those who think that the Constitution is to be interpreted in such a way to as to keep it up to date that is to say it does not oh it does not mean today what it meant when it was adopted some of its provisions change in order to keep up with the times my friend Justice Breyer has that view the other view which is held by people who are called original ist's and I'm one of them is it the Constitution doesn't change if you want to change it there is an amendment provision amended it's not up to the Supreme Court to write a new constitution by deciding that things that that never were there all of a sudden you're there I'm putting it rather tendentious Lee I think but those are the two basic basic approaches the evolutionary approach or the approach that look in 1791 what is 1791 why is that a significant take for the Constitution I believe a 1791 the Bill of Rights was created right on the nose thank you anyway as I started to say an originalist would say look when the 8th amendment was adopted in 1791 the eighth amendment prohibits cruel and unusual punishments the death penalty was not a cruel and unusual punishment there's no doubt that it wasn't the death penalty was the penalty for every felony it was the definition of a felony crime punishable by death so you know it's easy for me to say the death penalty may be a very bad idea the people don't have to have it if they don't like it they can abolish it but don't come to me and say that the Constitution doesn't permit it because in 1791 when the people voted to prohibit calling the usual punishments they didn't this is not what they were talking about okay that's an originalist approach I take no view on whether the constant whether the death penalty is a good idea or a bad idea but if the people don't want it they're fully able to abolish it by by legislation you look it's not quite the people who are perhaps don't hold this originalist view it say the meaning of the Constitution changes I think there is a large area of agreement for example it says two senators now I don't care how desirable it is to have six or to have none to means to it meant to in the year - 1500 it'll mean - in the year 10,000 but I think Justice Scalia will also agree that words in the Commerce Clause for example which says that Congress has the power to regulate interstate and foreign commerce or words of the First Amendment Congress shall pass no law abridging the freedom of speech what is the freedom of speech ah what is interstate commerce ah there were no automobiles in 1780 180 190 190 189 87 you pick a year there were no automobiles at that time 89 for the Commerce Clause they and they didn't even have a internet they didn't even have television so I think probably we both agree that even though there was no such thing in 1789 91 whatever year you want there still this phrase applies the world has changed now here's the area of disagreement okay wait wait wait before you go on after we go on that that's not really giving the words a new meaning it's just saying that new phenomena have come into being which are embraced within the former meaning it's quite something different however to say that the death penalty which did exist then the people knew what it was and the people did not vote to abolish it when they adopted the eighth amendment it's quite something different to say it is now covered by the eighth amendment so it's not a new phenomenon anyway going on now but that's that's quite now we're getting to a part which is actually rather difficult because I will probably think to myself whether I said or not in many of these cases I will think well how do I know the way in which the First Amendment applies to cable television for example to take a real case for many years ago when Congress passed a law that said that cable television owners must devote some of their space to carrying over-the-air broadcasters even though they don't want to how does that fall within the First Amendment so when I get into these real cases I probably will say what's key is there was a value there was an objective phrased in quite general terms that existed in 1789 and exit' and 91 and exists in unchanged form today the value the basic purpose the objective and then I would look to see how that applies so to go to a real case we're in fact the court held that that cruel and unusual punishment Clause forbids the execution of those who commit a serious crime of murder for example under the age of 18 we said they couldn't be executed it was not the fact that in 1791 probably there were executions of 17 year olds I'm sure there were but the value that underlies the cruel and unusual punishment Clause is it cruel is it unusual those things look around today to see how society today works out what is cruel what is unusual and society there may have changed it's not the values that change it is the nature of society that changed and the fact you picked a bad case because in fact bad for who for you or for you otherwise you wouldn't run with a brother breakfast a majority of the of the states that have the death penalty permitted it for someone who committed the crime when he was under 18 but it didn't make any difference to the court the court being an evolutionist court just said we think that you shouldn't be able to execute anybody who was under the under the age of 18 now again I take no position on the merits of it maybe you shouldn't be able to but the people are able to pass their own laws and abolish it and it doesn't seem to me it ought to be up to five out of nine lawyers on this court to say coast to coast you can't execute anybody who committed a crime when he was under 18 the people the people never voted for that limitation upon democracy and and that's what happens whenever you whenever you impose a constitutional limitation mostly from the Bill of Rights what always happens is you are imposing a limitation on democracy you are telling the people you can't do what you want to do and my position is unless the people themselves voted that limitation upon democracy it's up to them and that is a very - when you get us together we find at these three things that the other person says which is very interesting and for that we disagree with that is the the point here - the subtlety of this view where you look two conditions really in the world in light of the value is that it is complicated in some for example there are a large number of states that did have on the books statutes that said you can you can execute someone under the age of 18 say a 17 year old but if you look at the number of states where such executions occurred they were virtually non very few very few and then if you looked around the world and this was very controversial whether you should say this but if you looked around the world we were the only country in the world indeed in practice that did such a thing is that relevant well you know what the framers said about whether it's relevant what do you think they said nothing they told us nothing about it and if you look to see what they did sometimes they looked abroad to certain places sometimes they did it hence there is round for disagreement one other point and that is in respect to the question of leaving things up to the elected branches neither the originalist view nor the view of what I'd call more flexible let's call it why evolutionary sounds a little odd let's call it what should we call it I want some positive thing here what about concerned with the conditions of life what about sucker well in any case you see what it is it's hard to predict which view will lead to greater freedom for the electorate to change things I cannot resist pointing out that if you look at the number probably I have been more willing in constitutional cases to allow the electorate to choose matters for themselves then some of those who hold the originalist view so that's a walk why I doubt that but I mean the question is who made you King I mean the world has changed but who placed it in your hands to change our constitution the way you think it ought to be changed in order to account for these changes and the people can do that they can abolish the death penalty under 17 and as for the as for the notion well they had it but it's very rarely used it's also very rarely used to execute women now are you going to Bala is that the next case we have you're going to abolish the death penalty for women because it's very rarely used I never discuss a case that hasn't arisen the the interest here is of course I don't believe that I'm changing the Constitution I believe what I'm doing is taking the unchanging value and applying it to the circumstance today and the reason I don't think it helps one side or the other in this debate to appeal to the importance of democracy is that both groups of people in judicial world in the academic world believe that this Constitution is basically about democracy it's basically sets up a system so that the people themselves through the democratic process can decide what to do it doesn't give us the power to be kings but it does give up the power give us the power to patrol the boundaries now those boundaries are interested among other things in protecting individuals minorities others from the tyranny of the majority and what Hamilton thought and Madison thought is that it would help in that respect for a group of unelected judges sometimes to be able to say when for reasons that they write down an action by the majority is in violation is a kind of tyranny does interfere with those rights that's where we get the power and we don't always exercise the power in ways that command unanimity in this Court Hamilton would jump out of his skin if he thought that the Constitution he supported allowed nine unelected judges to change the meaning of the document from year to year and as for the fact that you that the evolutionary view is a defender of a defender of democracy every time we make a Bill of Rights decision it is an anti-democratic decision the only thing that enables us to do that is that the people themselves authorized us to make that decision the people themselves said you can't court our troops in ohms even if the majority wants to the people themselves says you cannot suppress freedom of religion even if the majority wants to the people said those things but they never said for example to take to take what here in Washington is called the big a they never said a state cannot place limitations upon abortion now there are views on both sides of that and once again I'm you know I'm officially neutral as to which view is the right one but do not pretend that it is not a limitation upon democracy for the supreme court to say the people cannot place limitations on abortion even if they want to that's a limitation on democracy so we had a case which I'm trying to get away from such an controversial issues controversially all the better no but their meaning is caught there they are the ones that they get the blood flowing this is young this is you see what's at issue but there is a good this is a case that's this is the kind of thing that's more often at issue there's a clause in the Constitution that says you cannot have an ex post facto law now what's that and you know good what when you charge a person with a crime that they committed before I became law absolutely here we have the cult following case California passes a statute that makes it a crime which has always been a crime a certain awful thing involving molesting children but what it does in this statute is it says the statutes of limitations you know you can't prosecute a person for many in many crimes after a certain period of time expires that's a statute of limitations it used to be three years that was the statute of limitations for this crime three years expired twenty more years went by twenty more years then they pass a new statute and they say we extend the statute of limitations backwards and they charge someone a hack quarter of a century after the incident that he said they said was the crime and about twenty years after the statute of limitations had expired is that an ex post facto Clause violation or not now that's a hard question so one group of people on the first method will look into the history I'll tell you one thing about the history the history requires the court to look at what a judge in the early 19th century wrote about an eighteenth twenty century treatise writer called Blackstone who was writing about an incident that happened in the British civil wars involving imprisonment in the middle of the seventeenth century now I say if that's the kind of thing that we have to look to all the time you better select a historian to be a judge because I am NOT a historian and I'm the first one to admit I know virtually nothing about that and in that particular incident well the historians disagreed about what it all meant but I'd say the value-laden method tries to identify the values that underlie the ex post facto clause it says why do we have such Klaus what are we trying to prevent what kinds of unfairness that's what they're interested in and then see if you can apply that to the modern circumstance that isn't changing the meaning of the Constitution it is applying the Constitution it's emphasizing different kinds of sources when you try to identify that meaning and by the way you can look it up see in recent times which method has set aside the people's democratic action the more I happen to know the answer to my question and I wouldn't bring it up if it didn't favor my side in other words less you know who were so I think you misunderstand me I have no qualms about a setting aside the people's democratic action I do I do it all the time when the Bill of Rights requires me to do it that's my oath of office I only object to setting it aside when there is no sanction in the Constitution adopted by the people to do that and you you pick an instance in which the history is is is not that clear there are innumerable instances especially in the most controversial areas such as abortion and all these way the history is it and the death penalty where the history is entirely clear and if you think that the values approach is always clear the values that you think are the more important are not necessarily the values that I think are the more important what you think the the ex post facto clause was intended to protect against may not be what I think it was intended to protect against I might think it oh my goodness it's a terrible retro retro change - all of a sudden make him guilty when when he was free of that crime for twenty years on the other hand you may say oh the only thing it was really meant to do was to make sure that an act which was lawful at one time is not later made unlawful either one of those is entirely reasonable so don't pretend that the values thing provides an easy answer it provides an answer that the people ordered to decide the people no values I don't I haven't been I'm a good lawyer I presumably was pointed on the court because I'm a good lawyer not because I know more about the values of the ex post facto clause or whether there ought to be a death penalty or whether there ought to be a right to abortion I don't know any more about those things than you do that's not why I was appointed I am a good lawyer and I can read the text and I can look back and see what the text meant when it was adopted in some cases it's vague but it's the cases in which it is vague in significant areas are going to be much much fewer than the cases in which the values that you want to pursue or values that different segments of the American people will disagree about considerably but why I think this is important what Justice Scalia just said is he's really identified sources of differences where I think there is no right and wrong that is when I think of it in my mind I think you're a lawyer or a judge or a person reading a document and their words in it and now for a lawyer or a judge we often come across words in statutes we come across words in the Constitution that don't define themselves and there's always two arguments on both sides where the border patrol we patrol the borders of the Constitution and I cannot tell you how often in these cases there are two sides to the argument there are if not six sides all right so how do you decide well I think to go back to really sort of basics that a judge when faced with words that you just don't know in a difficult case has six tools to look at he reads the words to the words matter of course and he reads other nearby words second he looks at the history of course you should look at that may tell you something interesting third he looks at the traditions what are the tradition surrounding this word that have grown up forth read the precedent read the precedent v look at the purpose and that's we're talking about purpose or value and finally look at the consequences of deciding one way or the other not any old consequence in the world but consequences that have to do with the purpose if it's a speech case its speech consequences that matter a privacy case unreasonable search its the privacy unreasonable search consequences all right so I think those six tools text history tradition precedent purpose or values and consequences are relevant to every judge and if you were going to say no I'll find cases where you actually looked at I wasn't going to say no I was going to say that four of those six factors came out the other way in the in the seventeen-year-old execution case that you voted for four of the six came out the other way but essentially you thought it was a good idea not to execute 17 years old here now we're at

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Length: 23min 46sec (1426 seconds)

Published: Sun Apr 20 2014