Constitutionally Speaking: How Does The Constitution Keep Up With The Times

[Applause] [Music] thank you very much good evening everyone and welcome to a public conversation about our constitution almost two centuries ago Thomas Jefferson warned if a nation expects to be ignorant and free it expects what never was and never will be here is today's troubling reality in the last federal election arguably the most exciting election in recent memory young people with college experience were almost twice as likely to vote as those without college experience two-thirds of young adults with no college education failed to vote they were disengaged from the most fundamental process of our democracy since there is a high correlation between education and voting what the numbers tell us is that high school graduates are not getting the kind of civics education they need this project is about changing that and in a way that sets New Hampshire as a model for the nation tonight is the launch of constitutionally speaking which is a partnership project of the New Hampshire Humanities account uh Council the New Hampshire Supreme Court Society the University of New Hampshire school of law and the about to be launched New Hampshire Institute for civic education we're focusing on two major initiatives the first is to reform Civics education in New Hampshire's Public Schools so that by by the time students graduate from high school they will have gained the basic knowledge the experience and the inspiration to engage meaningfully in the Civic lives of their communities their state and their nation good Civics education much must reach those students who will not go on to college as well as those who will and it must be caught taught from kindergarten through High School our second goal is to encourage spirited but civil discourse and dialogue among people of all a ages about the issues of our time this is what tonight is all about which brings me to this illustrious audience Margaret Warner and Justice sudor let me introduce you to your audience you see before you public school students and their parents and their teachers and school superintendents a group of Hamil Scholars from the University of New Hampshire are here they're chosen they are chosen for their community service to be Hamill Scholars there are law school students and their professors members of the state and the federal Judiciary Civic leaders and engaged community members friends of yours from near and far in short people from all walks of life and age from youngsters to those well on their way to 100 the response to this program has been terrific so much so that we had to move the venue here where we have a capacity crowd of over, 1300 people and we had no room for several hundred more who wanted to be here the program is being recorded and it will be available to all New Hampshire Public Schools next Monday which is Constitution Day the video of tonight's program as well as still photographs and other materials will be on the constitutionally speaking website which is identified in your program insert I just want to remind you again before we get into the program please turn off all of your electronic devices all your cell phones and please no photographs it is now my great pleasure and privilege to introduce Justice sudor and Margaret Warner Justice sudor [Applause] jce sudor as most of you know is a lifelong New Hampshire resident he's a graduate of conquered high school here and after retiring as a Justice of the United States Supreme Court is now volunteering his time sitting on the First Circuit Court of Appeals in Boston Margaret Warner was a member of the first class that ad admitted women at Yale her early career included a stint at Foster's Daily Democrat and several years at the conquered monitor she is now a celebrated senior correspondent for the PBS newsour Margaret Warner and Justice sudor have been friends for years in 1976 She interviewed David Suter who had just been appointed New Hampshire's attorney general her front page article in the conquered monitor on January 7th 1976 appeared under the headline new attorney general is said to be a lawyer's lawyer the article reported that David Sutter was an in-house candidate named to the post for his intellectual and legal capabilities rather than for his political connections and stated that his salary would be the princely sum of $25,000 to $29,000 I have it on good authority that the interview for that article led to a friendly back and forth but between Margaret and David over the years about whose career was boosted more by that story tonight's program is an unrehearsed discussion how does the Constitution keep up with the times please let the dialogue begin thank you Susan so much thank you for that lovely welcoming New Hampshire introduction and thanks also to the the four organizations that are sponsoring this this is so important to bring us all together and the state together to celebrate the 225th Anniversary of the of the Constitution I also want to thank all of you this huge crowd for being here we continued our banter when we learned that it had sold out in two and a half hours about who is the bigger draw of course it's just a Suitor it's just a Suitor but you no I think there is something deeper going on here which is that everyone in this room really shares a conviction that the Constitution is is absolutely essential to who we are today and also to to who we are becoming and and how important it is to really understand it and how it applies to today so I think before we leap into the con the sort of uh topic of tonight which is how does it keep Pace with the times that we reflect just a little bit on its creation last night I had the incredible thrill of being invited to a small event at the National Archive and after the dinner we were taken in for a private viewing of an original US Constitution Declaration of Independence the Bill of Rights the Emancipation Proclamation and then the founding document of our founding document the Magna Carta of 1215 and it was as I especially thinking of tonight I I stood you know as close as I am to you closer to these cases and I it was really hum Ling to think of the courage that it took for the men and and they were all men who had produced these um these documents so you know today um something like I looked this up 130 countries have written constitutions it's and of course many of them are honored in the breach in in authoritarian regimes but it's still considered a badge of honor and necessity if you if you're a nation that wants to call itself a democracy which many do but back on September 17th of 1787 when the Constitutional Convention of Philadelphia ratified adopted excuse me this this Constitution and sent it out to the states to be ratified it was the only such document in the world that actually delineated the powers of government and though the Bill of Rights hadn't been added at that moment also in inherently talked about the the rights of citizens that had to be protected and so Jus a sud I thought let's just begin with that I mean it was really kind of it was a bold it was a really radical idea and what was it I mean was it an accident of history that had happened here or what was it about these men that both inspired them and gave them the ability to actually create a document that endures to this to this day well I there are no simple explanations I I suppose uh you can start I at least in my mind I I start with the fact that during the colonial period uh in most of the colonies certainly around here uh the colonial Administration uh was not necessarily sporadic but not necessar but but not particularly tight uh and suddenly uh there there were these people uh led by a fairly well-educated Elite and they got into the habit of governing themselves uh there was no one to say no uh the day came when when the colonial Colonial Administration tightened up uh to begin with when they were trying to pay off the debt of the French and Indian Wars uh and the these these people who had been so often left alone uh uh suddenly reacted to the tightening of of legal control as as tyranny uh and it was frustration and disgust at the Tyranny that ultimately led to to the revolution uh That Was Then followed in in effect by by another period of disillusionment uh because uh finally uh the Articles of Confederation which was in effect a compact uh between the uh the new States uh uh was was was ratified by enough of them to go into effect uh but it didn't work uh the the problem with the Articles of Confederation was uh there was there was no central government for things that had to be done centrally uh if the United States was going to be a state within the community of Nations uh it had to be able to speak with with one clear voice uh if it was going to develop the commercial uh basis for strength uh it had to have a way of of regulating and stimulating commas uh Beyond each individual state which many of whom were were were acting as uh as as traditional foreign individual states it was perfectly clear that the United States uh was was simply not going to survive unless something was done to improve on the Articles of Confederation uh and as I suppose everybody knows uh when the Convention of 1787 was called it was not called to come up with a new constitution uh the uh sort of the the job it was given uh was to amend and reform and improve on the Articles of Confederation uh and and what happened probably should be a lesson to us all because they got there and they just ran away with the thing uh and uh is why few States want to have Constitutional Convention say that's that's why we haven't had another one uh but when they when they came to that point and and they they did run away with it um they they essentially had uh in addition to their frustration they they had they had two sources of inspiration uh there there really was an extraordinarily well educated philosophically educated uh Elite at that time that was running uh the the convention uh they understood Moncure they understood lock they understood the concept of separating powers so that we would not have uh what they regarded as a as a British kind of Royal tyranny uh they also had the notion uh of uh of a written document to constitute themselves uh and they they had they had gotten this idea in their head simply because the colonial Charters uh and the charters uh the the the commissions to the Colonial Governors were written documents uh and they purported to set out what the governor could do what the governor could not do what the provincial legislature could do could not do and so on so they had a model uh for a written Constitution um and that in itself did not not guarantee what we got uh there was there was there was one other serious problem uh that they simply had to work out when they got there uh and that was in in James Madison's view uh the most serious problem they had to get out of the way or they were going to get nowhere was the problem of how the uh how the individual states were going to be represented uh in in a newly formed National National Congress so you're saying they had to compromise they they did because they had they had big big States versus little States the little states of which we have some familiarity with one uh were were afraid of being inundated uh if if the representation was on a pure population basis uh you had the southern states with slavery uh who were scared to death that they would be inundated uh if the population count was was simply that of free individuals uh given given the uh the composition of of of their their states and the only way any Constitution and for that matter any Improvement on the Articles uh was really going to take place was by a compromise uh on on principles uh didn't mean selling out but it meant a compromise on a reasonable basis and so we ended up with uh with a a lower house represented by uh by on a population basis we ended up with a senate uh in which each state equally had two votes that was the big and the small uh we ended up with the the compromise that looks Infamous to us when we look back on it now uh of of counting uh slaves is a slave is 3- fifth of a person in order to uh in order to bring the southern states uh the slave states along so the basic lesson was a lesson of compromise that brought the the Constitution to the point of uh of signature and ultimately the nation uh into being as we know it and then of course one of the three branches of government being the Supreme Court to in interpret this constitution through the decades and and and the centuries so when thinking about this discussion and the topic we're here to discuss which is how the Constitution evolves I did at your suggestion I think go back and find this article with the help of the state librarian of of New Hampshire and I'm already sorry I yes I I didn't have a copy or I couldn't find mine and here's here's what you said to me yikes 30 36 years ago I I first wrote that your approach to the law I said finds its roots in the strict limits he imposes on interpreting and applying the law and that you were critical of what you call broad interpretations of the written law which you thought threatened sort of social acceptance public acceptance here was the quote from you the more we allow language to be debased the more free swinging we are in our interpretation of legal language the greater the risk we run of having the public perceive our actions as arbitrary and personal not grounded in the Constitutional process now a Layman reading this might think this was Antonin Scalia talking and I I'm just wondering if he would he wouldn't he wouldn't no this is [Applause] [Music] true so did I have it wrong then or has your thinking evolved since you were a 36-year-old newly mitted State Attorney General well the the I I I think the quotation was probably absolutely accurate U but it was it was more historic than than you [Laughter] realized because so far as I know that is the only time in my life up to then and for that matter since then that I have said less than I should have uh [Music] I uh I haven't I haven't changed my mind about that so far as so far as it went um the uh the the the fact is the the meaning of the Constitutional language and and by the way we were we were talking I I think we were talking both about statutes and constitutions then but let's just stick to the Constitution for now the meaning of the Constitutional language uh has not changed with with time uh but what I what I said or what I was quoted as saying and I and I'm sure that was a complete quote uh in effect uh left out something very important uh and it's it's really what was left out that I've spent as much time as in in the in the last 30 uh 36 years uh on as as on anything at all uh to to explain what I'm getting at um Let me let me step back and and just set a little scene uh we we have in a way a a a kind of two constitutions we we we have two elements in that Constitution one uh is is structural it constitutes the government it says what it shall consist of uh the president two legislative houses uh an independent Judiciary and so on and there are all kinds of specifications in there the president's got to be 35 years old um under the president amendments the inauguration day is January 20th and so on um we've also got a call it the Liberty Constitution um not only the bill Liberty Constitution not only the bill of rights which I think everybody understands but Those portions of the original Constitution that also had the effect of guaranteeing Liberty so there's there's one sort of dichotomy uh uh structural uh uh versus or as distinguished from rights the other sort of big division that you can make in in the constitution is in the language as opposed to the subject matter uh the Constitution has a great range of breadth of language uh some of it is as specific as as I mentioned a moment ago 35 years old means 35 years old if the president is 34 um he's going to be president uh some of it however is of extraordinary breath uh in the structural Constitution uh it it speaks of uh Commerce among the the states doesn't Define it any more precisely than that you get into the Bill of Rights uh you you get terms like unreasonable searches and seizures uh which which are are prohibited references to uh the freedom of of speech without any further definition Security in people's houses and so on uh these general terms I think are are best understood as kind of a a a listing or or a menu of approved values uh the application of which has got to be worked out over time uh they couldn't be worked out at the time uh the whole point of it was that it was a constitution and a Bill of Rights for the indefinite future it was like it was not like a statute uh which deals with a spefic specific problem and can be amended relatively easily the Constitution cannot be amended relatively easily so the application of these values the the the the the problem of trying to make them work in practice uh was an assignment that was left to the Future to all the branches of government for that matter to all of the people who elect the people in those branches and uh ultimately uh when push comes to shove uh to to the judicial branch to the Supreme Court of the United States um does it give but does it give the then are you saying that the Supreme Court once presented with a case can can find rights that aren't enumerated in the Constitution let's say the right to privacy which is never mentioned and yet has been the basis of uh decisions from whether a couple can a married couple can use contraceptives to roie way dealing with abortion to the recent fairly recent I mean 10 years ago or so uh case involving the Texas anti-sodomy laws uh you you got to be you got to be careful of your language and be careful of what you what you mean by the word rights because we use it in two different ways uh let's just take speech for a minute no question there is a right to freedom of speech it is an enumerated right if you look however uh at how that right was enforced you will find uh that the Supreme Court has held that it includes or it implies uh a right to freedom of Association because Free Speech doesn't mean much to people who do not have positions of power or or large amounts of money to purchase broadcast time and so on uh with without the without the power to come together and have someone speak for them their right to speak really isn't worth much uh it makes perfect sense to say yes there is a right to freedom of Association but remember that what it is it's a right that is recognized in order to make practical sense in order to give practical value to the general right of speech uh a great deal of what the Supreme Court does uh and and and cannot avoid doing is trying to figure out how to make these things work and the Constitution does not tell you that uh so that when you then get to the you know the list that that that you came up with including you know right rights to uh limits on on uh prohibitions on abortion and so on yeah it makes perfect sense to say that they are rights but they are rights which are is if if if you will the working out of applications of the rights that are specifically mentioned in the constitution in the abortion case due process of law for example uh so so there so there are unenumerated rights unenumerated and uh the Ninth Amendment of the Constitution speaks of them uh they said you know the enumeration of some does not exclude uh others that are not enumerated but the uh the the fact is that I don't want to say there are two tiers of Rights but there there are two concepts of Rights involved here one of the of the rights that are enumerated from which the court has to work the other are the are the rights that are recognized in order to make practical sense of what the Constitution says are the values that we are there to protect and going back to that that remark that you quoted from me that the the the the point of care with language uh when when that will give you an answer uh is is faithfulness to the people who use the language and uh if you will faithfulness to the people who are subject to the law so that they will not think that we're just coming up with great ideas of our own uh and sort of pouring them into to some vague language which we think we can twist to to to mean what we want uh the the the obligation when the when the Supreme Court or any court is working out this how do you make it work uh kind of problem is to explain why the court makes it work that way uh so that it becomes apparent we hope uh that we're not just putting our own ideas of what might be nice uh into into constitutional language but you do not think as some believe just a skilia being one that you can stick to what he calls the fair reading of the text which he says basically what a reasonable reader would understand the text meant at the time of its adoption no you you you cannot stick to that uh for example um give us yeah do give us an example well actually i' I've already given one nobody nobody in his right mind uh in 1791 when the when the Bill of Rights was adopted ever thought uh that the that freedom of speech and freedom of Association and so on the First Amendment rights would carry with it uh a a right to join organizations it never crossed their minds uh like political parties or what kind of organizations uh things like the NAACP uh and uh so that you know if if if you would said to somebody in 1791 after after the Bill of Rights was ratified you know uh does this speech Clause cover anything but speech they they would have looked at you and said you know no speaker to English uh it's it says speech but we know that in fact uh if you if you limit it that arily uh it's not going to mean very much uh and uh I I I I gave speaking of speeches I gave a speech a couple of years ago in which I gave uh another example of why simply reading doesn't do it uh and and that is uh if you if you look at the the the text of the the First Amendment um Congress shall make no law a Bridging the freedom of speech and so on uh no law sounds pretty tough uh but in fact everybody recognizes conservatives liberals it's not an issue but there are some laws that congress can make that in a practical sense do limit the freedom of speech uh no one doubts for example uh that uh if an individual uh was poised with a microphone in his mouth uh to divulge uh America's nuclear secrets uh that he could be stopped uh without violating uh the First Amendment uh J as Holmes used the the great phrase nobody has a right to shout fire in a crowded theater uh which is worth remembering this evening uh uh so that you know no law doesn't mean no law uh and a a third reason why U why simply reading is not going to give you answers let alone infallible answers is that uh as as that last example I suppose shows um there are legally constitutionally recognized values that can be in conflict with each other they both can't win all the way all the time uh and I mean the the Paradigm examples are are the guarantees of of uh of of of Liberty and equality uh if I exercise my Liber Liberty to the greatest possible extent uh I can suppress um uh any you know the the rights of a lot of people uh so you mean just as an example you could if you were a restaurant owner you you would have the Liberty to not serve people you didn't want to yeah but um but then there's it a um an exam maybe a a an example that that that probably a lot of us have in our minds a lot uh is is the Supreme Court's uh decision the the year after I Ste down uh on political campaign contributions by corporations the so-called citizens united uh decision um should corporations uh in effect be subject to the limitations on political expenditures that they were and in fact had been subject to for a century uh there was there was a play of constitutional values going on there uh if the Supreme Court uh took a a Liberty model uh the Liberty model uh of free expression uh was yeah corporations can spend all the money they want to in the world if they took uh anyal quality model they would say there's got to be the possibility of a limitation on corporations so that they do not drown out other speech uh the Supreme Court and citizens united uh went went with the Liberty model uh but these these kinds of conflicts in values are simply part of the Constitution and you can't say that you can solve them by simply by reading fairly the text because if you read fairly the text you'd have to conclude you can have it both ways all the time and you can't and and the the writers of the Bill of Rights knew that just as just as well as we do so there there there are tensions that have simply got to be resolved and the Constitution does not have a provision in there that tells you how you're going to resolve them so what's the public supposed to think though take the citizens united case when for as you said decades Congress could impose restrictions on corporations and their political speech and then undust those uh I'm going to take a partial pass on that and I'll tell you I I'll tell you why it isn't because my views are supposed to be secret because I left the court I mean there's no question anybody who reads the opinions that I wrote when I was on the court on campaign Finance uh will know perfectly well that I would have gone the other way in in citizens united uh the the reason uh I'm I'm not going to go as far as as as I might do in answering that question uh is that you can't get into that subject and explore it fully without getting into politics uh and I am I am a federal judge I'm still a federal judge uh and there's a point Beyond which uh we do not comment uh on on the on the behavior of the political branches in their politics uh that only is is not none of our business under the under the uh separation of powers uh but uh it's it's a line that has to be hued to or the court itself is going to start looking pretty pretty political so with that as a preface I think the most I can say but I hope enough in answer to your question what is the public to make of this and the only answer I can give is the public uh has got to go read the opinions the the question and this goes back to something I said a minute ago the question when when you read the opinions is do they make out a convincing argument for going this way rather than that way and that is that is the the basic question whenever the court is either either Recon iling tensions within the Constitution or drawing lines when the language that the constitution uses is very broad like commerce power and so on uh do they make a convincing case that the reasons that they are giving are the real reasons and that's that's why to to just throw in a kind of a footnote to that you know we we all here and for that matter probably all of us say with with some frequency that judicial decisions ought to be principled decisions uh that doesn't go far enough if all you want to do is follow one of those principles or one of those statements of values that occurs in the Constitution anybody can can write a principal decision if speech always wins even though it's Atomic secrets that are going to be broadcast um uh to to uh to our enemies it's easy to write the decision speech always wins but it doesn't most of the time it does because it has very high value but it doesn't always Liberty doesn't always Trump equality or equality always Trump Liberty and so on uh and a principal decision therefore is not merely one that is rested on the principle that is chosen to Prevail in a given case on a given day a principal decision is one in which the court candidly and convincingly explains why this principle prevailed over that principle it is the choice of principles that the tough that's the tough part and that's a choice that is made among other things simply on the basis of fact we have to know how it would work out one way how it would work out another way and make a choice based on those predictions and on what experience teaches us from the past uh but in summary the public judgment has got to be a judgment uh on on whether they believe what the court says whether they believe what the court says is convincing in making that choice between principles well I will leave it there at your request on citizens united but let me ask you about and this is something you talked about in your Harvard commencement speech which caused some I mean the speech caused some waves and that was it dealt with racial segregation and the two very different decisions plusy versus Ferguson in 1896 which essentially said that despite the equal protection Clause of of the the 14th amendment that um separate railroad cars for blacks and whites was constitutional as long as they were physically similar I'm just giving a Layman's view of this and then what 60 years later you have the Brown versus Board of Education decision in which a court the court unanimously holds that in fact separate schools for blacks and black and white children's children violate the 14th Amendment now explain H how that happened again sort of what is the public to make of that is one wrongly decided and then you had the court correcting it um here here's what I make of it um you know it's very fashion I mean it's it's it's it's natural I've done it myself to go around saying you know py was wrong the day it was decided uh but that in fact is unrealistic uh and and and I I I think it's unfair uh uh the the issue in py was really just like the issue in in brown the fact that one was on railroad cars and one was about school buildings and so on uh doesn't make any difference um and the issue that sort of never got stated exactly because nobody really had it expressly in mind was what are the facts that we ought to consider consider in deciding whether there is equality or not what pie said was we're going to consider the the kind of objective physical measurable facts are the railroad cars really the same do the same upholstery on the seats Etc things like that they took kind of a a a formalistic physical view of it when Brown came along uh the court said this was this was the great summary line in Bren the court said uh separate schools are inherently unequal even if they're exactly the same in you know per square foot building costs and textbooks used and so on there is an inherent equality uh in the in the enforced segregation under law the big difference was uh that what what the Brown case saw as the facts were not simply you know the the measurable things like uh nice buildings and and clean textbooks they looked beyond the the measurable facts to what the facts meant and they knew that those facts meant to anybody whether white or black that the people who made the law and enforced it were enforcing separation because they believed that the black group was not as good as the white group and that's why they said the very fact of separ of mandated separation was inherent inequality uh was the court in py dishonest or stupid or demonstrably wrong when it didn't look to meaning uh and this is where I I think one has to have some political perspective because what we can see changes over time depending on our experience and I I said in in the speech that you referred to Margaret I I I I I reminded everybody that the court that decided ping Ferguson in 1890 uh consisted of Judges who remembered uh slavery and if you remembered slavery the idea that there was a constitutional guarantee that the forly enslaved population and their children and grandchildren were entitled to exactly equal facilities on a railroad with the for formerly dominant white population that looked like real progress you won't find that statement in py but with a little perspective it's it's not hard to see that and therefore what the Brown Court said was inherent inequality did not leap out at them uh and in fact the um the the the famous denter in py the first just J uh justice har uh he he based his descent on on a a strictly literal reading of of the word uh word equal he said uh it means color blind which has never been the law uh but the the court in in brown V Board of Education as you said it had 60 years since py and it had 90 years since the end of slavery and it no longer had the background of Slavery to look at equal at at at at physically equal facilities and say hey this is great we're making real progress what in fact uh it had was a a a a a concept of slavery is something that happened long before we were here and it was obvious to them that the only reason for continuing the segregation was to enforce a a a judgment of inequality um what changed uh was the way they looked at the facts the concept of equality uh I I suppose did not change although the application of that concept certainly changed because they could see something that their predecessors simply didn't see and that's why when when when when we say you know if you want to know what the what the provision uh means in practice you've got to see how the court implements it you've got to see how it how it works in a given fact situation what we learned from Brown is that the facts can include the meaning of facts as people experience them as long as we have the eyes to see that and our capacity to see that changes over time and it Chang over the time between py and brown does our capacity to see it change or do also the meaning of this does it change for people living in that time in other words to what degree is it should justices be sensitive or reflect the social realities of the time uh you know the word the wood should is is is is is tough to deal with here uh or is it just that they do no but I I was going to that's basically what you get to um we can only see what our experience has opened our eyes to and one reason you have nine people in the Supreme Court rather than one uh is is not mely once again to divide power but because among nine people there are going to be those who can see things that others don't and if they can convince the others of what they see they may very well affect the result in a case uh but that's that's that's why you want a lot of eyes and a lot of Minds uh because we don't all see the same things because we have not all had the same experience I I'll give you an example from from my personal life um one of the one of the problems that the Supreme Court dealt with in sort of the last decade let me interrupt you for one second while um you're finishing your answer we are going to go to questions from the audience and so the time is running away from us so we have two mics here and here and would anyone like to ask a question they could just come and get ready to ask it I think the first three positions here have been reserved for some students so no pressure on anyone but feel free to come forward and and uh anyway go ahead now you know what I meant when I said that was the only time I said less than I could have uh where were we you were talking about I I had asked whether justices just either necessarily do or should reflect the social real but tell story from I was getting into my story yes um one of the issues that the court dealt with uh at Great length in the last 10 years that I was on the court uh was uh the the the right of jury trial uh and what can be done to affect the conduct of Trials uh that either is consistent or inconsistent with it uh we got into that problem because uh in the in the War on Drugs Congress was increasingly leaving it to the judges rather than to juries to make the findings of fact on which there would be enormous differences in potential uh prison sentences and the question was uh does does that in effect inhibit the right or or limit uh the legitimate right of jury trial uh I came down on on the side of saying uh ultimately yes it does and the rule that finally was evolved was uh and it's it's another how to do it rule you won't find it written in the Constitution anywhere but the rule it came out with is that any finding of fact that increases the possible range of sentences is a fact that must be found by a jury rather than by a judge I have no doubt whatsoever that I could see the problem easier because I had been a trial judge in the state of New Hampshire for 5 years and I had conducted a lot of jury trials and after every single one of those jury trials I always sat down and I always talked with the jurors uh and I came away from that experience uh with a respect for the for the Integrity of jurors in the jury system which I could never have had any other way I came to realize that any cynical talk about you know juries will do uh they'll convict whether it's Reasonable Doubt or not those those cynical thoughts are totally off base uh and uh I also had experiences here with a grand jury in which there were points in which the grand jury thought it could sniff politics into a request for an indictment and it would dig in its heels um so I came away from my experience as a trial judge with an enormous respect for the jurors and for the crucial importance of the jury system in effect I was saying we're not going to take any chances in eliminating too much of the jury right that is an example of how a judge's experience determines what a judge can see and hence how a judge answers the question how do we make this right jury in this case practically significant to real people interesting U just right here you want to start um and if you just please just give us your name and where you're from or where you go to school and I'm Joe Fahy I'm from Bedford and I attend Trinity High School um if you were still a member on the Supreme Court how would you have voted on the um National Healthcare reform law [Music] going to take a pass on that one too no wait a minute don't go away don't go away I'm I'm I'm I'm GNA say more uh uh I I don't I don't think it's uh appropriate for for retired justices to go around second guessing what their colleagues uh ultimately did uh but I want to use your question uh nonetheless to to kind of illustrate again something uh something that that that that I had said earlier I had said earlier that the way we give effect to these values which are left to be worked out later and the way sometimes uh we we have to resolve tension between competing values uh determines is is is determined by our analysis of the facts uh and what might happen one way what might happen another way the healthcare decision uh presents a a good example of that because there was a majority as as I'm I'm sure you know there was a majority of five people who felt that mandating Health Care was not regulating Commerce it really was forcing people into Commerce who were not already there that was a fact issue uh the fact that the majority of five emphasized was uh these people are not in Commerce because they're they're not now buying Insurance they're not now covered by insurance and and our notion of Commerce in fact in this area uh is is is Commerce in in the actual provision of insurance for Health Care the argument on the other side was of course these presently uninsured people are in Commerce they're in Commerce because whether they are insured or not sooner or later they're going to need a doctor and I I forget whether anyone specifically mentioned this but we all know that if if if you don't have a doctor and you don't have insurance and your trouble you're going to go to the emergency room of the nearest hospital and it's going to take you in and and it's it's going to treat you uh the the Commerce of Health Care therefore included the uninsured on this view just as much as the insured but what it was was an argument about facts and an argument about how to characterize how to see these facts facts it was the same kind of argument uh that if if you will went on between the the the the the view of equality and plusy and Ferguson which says look we just looked to the uh to the the railroad cars out of the bricks and mortar uh and and and the view of approaching the facts in brown we look to the to the meaning of it but it was an argument about fact and so the the healthc care decision on that particular issue of Commerce is a good illustration of why you cannot decide these issues no matter what the language is you cannot decide them uh without deciding how you're going to view the facts thank you so that isn't what you asked for but I hope take thank [Music] you I'm uh Alex r from ex high school and so my question is when and if the marriage equality law becomes um available before The Supreme Court how do you think they will Rule and why I wish I'd started with you all [Laughter] sooner I I'll tell you a story about two friends of mine two of my closest friends in in college have maintained a close friendship they were roommates one of them uh was an investment banker who actually died last year and the other one uh was uh was an episc or is an Episcopal priest and their families would get together every summer and spend a long weekend together and the son of the investment banker uh told me that uh the way they started off their conversation every year was the same way uh the priest would say to his investment Bank a roommate he'd say uh he said what's the market going to do and the investment banker would say I have no idea and he would then turn to the priest and he would say what's God going to do and the priest would say I have no idea you got your answer [Music] [Applause] in the discussion of the rights enumerated in the Bill of Rights um it often comes up and the best example I can give is um the recent decision of DC v heler um whether the which decision the District of Colombia versus heler um the the Second Amendment Second Amendment yes um it often comes up whether these rights are purely um for the individual or if they are a more communal um Collective right um what would your opinion be on that well I gave my opinion on that uh because I I was on the court when uh when when the uh when the case was decided why don't you briefly tell people to have case I'm sorry the the the the issue uh under under that and a subsequent Second Amendment case was whether the uh the the the Second Amendment guarantee excuse me of a right to be be arms uh was the right of any individual no matter what his position or business in life uh to uh to carry firearms uh or whether in fact uh it was right that uh the guarantee was limited to the the use of firearms uh in what used to be called the the militia uh we would we would refer to it today as the you know the National Guard or the or the Armed Forces and uh as I as I said I and and the the case came up to the court because the District of Colombia had Fairly strict uh regulations of the of the right to carry firearms and an individual who believed that his right to have a firearm in his house ready to go uh had been infringed and it certainly had been limited uh raised the question uh of of whether it was an individual right uh or whether it was a right that only pertained to people when they were carrying arms uh as as part of the in effect the the National Defense and the the court went five to four on that uh and it held that it was an individual right I I was in The Descent on that uh The Descent was written by Justice Stevens and I of course think that Justice Stevens had they had the better part of of of the argument uh the the the reason that I guess I I haven't changed my mind uh on it uh is really the reasons that Justice Stevens gave I didn't write a separate opinion on it uh but just to Simply to to indicate why I thought frankly that it was so obvious that the Stevens View was the better view uh was that the the Second Amendment is is written uh with a first Clause uh that refers to the uh to the need to have uh the value of having a well-regulated militia therefore the right to beam shall not be infringed I'll be honest with you I don't see today any more than I saw then how you can read that language and not say they wouldn't have put the militia Clause at the beginning of the sentence if they were trying to provide a right that had no relation to the militia and to carrying ums for that reason uh and as as I guess you probably know uh because I'm I'm guessing you've probably read the opinions uh the the opinions on each side Justice Stevens's opinion for The Descent which I joined Justice scalas for the for the majority were very heavy on History to try to figure out try to make a case for what the original understanding of the Clause was uh but I've got to say I'm I'm am certainly unrepentant thank you yes I'm Alec medine from gilmington and I go to Guilford High School and what where do you stand on States in their ability to nullify federal law I I guess that's kind of a softball question U uh we fought a Civil War about that uh and and the Nullification side lost and the Nullification argument is no better today uh than it was uh in 1860 uh when the Congress of the United States is acting within its powers it is acting it is it is providing law that prevails over any law of the states we have an Express supremacy clause in the Constitution that the that the acts of Congress treaties Etc shall shall be the supreme law of the land along with the Constitution itself uh if there is an argument as to whether Congress is acting within its powers that's what constitutional cases are made of in cases like that if there is a serious question can ultimately get to the Supreme Court and if the Supreme Court thinks Congress went too far went beyond the powers that are reasonably understood to have been given to it in article one it will say so uh and the statute will go down the drain if it doesn't say so it is the supreme law of the land and under the Constitution of the United States no no state has a right to nullify it were you thinking of a particular case no no just in general does anyone else have a question oh good great hi I'm Debbie skiri and I'm from Windham and my question tonight is really around where we started this conversation which was really around the schools uh around the what schools oh and we've I've heard a lot this evening about Democratic principles um Civic engagement and I guess I'm wondering uh justice sud if you could share with us your thoughts about what the appropriate role and probably responsibility as well of our schools to produce civically engaged students well I I'll I'll have to be careful of that one because I I could talk even longer on that than on some of the other things that I I I've talked on but um I'll I'll start with the bottom line line I don't believe there is there is any problem of of of American politics in American public life uh which is more significant today uh than the pervasive Civic ignorance of the Constitution of the United States and the structure uh of government uh I hope every one of you runs the legislature uh [Music] the I I I won't spend a lot of time on statistics we we know with pretty reliable evidence that two-thirds of the people in the United States do not know that we have three separate branches of government uh I remember and I I I I could I don't know the name of it but can remember hearing about a survey back four or five years ago in which a substantial percentage of Americans believed that the Supreme Court of the United States was a committee of the Congress um it didn't used to be this bad uh when I was in school we we had actually in the course of high school there were two required Civics courses uh when we got out of high school we may not have known a lot uh but we we at least had a basic understanding of of the structure uh of American government the structure of state government for that matter and what that gave us was not only a kind of a a a framework to to hang the other thing hang on the the the things that we learn later it gave us a a basic sense of where responsibility lies for given problems within the government and a corollary of that was we we certainly understood where responsibility lay uh in matters that were the business of the legislative branch of the of the Congress of the United States uh and we knew that we could influence that by voting uh today that I I I don't believe they would have been any 2third ignorance rule uh back at that time starting about about 1970 uh the teaching of civics uh went into decline from which it has never significantly covered recovered the good news I know simply from from what I've learned in New Hampshire is there are a lot of terrific Civics teachers uh in New Hampshire uh who are trying to turn that around uh one of their problems is that they don't necessarily have the the material support to do it very well and the demands on teaching and this includes the demands that are imposed by the No Child Left Behind rule makes it very difficult to find the time for more Civics but the reason I I I said that I think it is the most significant problem that we've got uh is that I think some of the aspects of current American government that that people on both sides find frustrating are in part a uh a a function uh of the inability of people people to understand how government can and should function uh it is it is a product uh of Civic ignorance what I worry about uh is uh is is a remark that Benjamin Franklin made and uh Susan Susan Ley quoted Jefferson at the beginning about how uh an an ignorant people can never remain a free people democracy cannot survive too much ignorance Franklin uh in effect had uh had a comment to which the Jefferson comment is a kind of an answer or a response and I you probably have heard this but it Bears repeating uh Franklin was asked by someone I think on the Streets of Philadelphia shortly after the 1787 Convention of jur and what kind of government the Constitution would give us if it was adopted and Franklin's famous answer was uh a republic if you can keep it you can't keep it in ignorance I don't worry about our losing Republican government in the United States because I'm afraid of a foreign Invasion I don't worry about it because I think there is going to be a coup by the military as has happened in some other places what I worry about is that when problems are not addressed people will not know who is responsible and when the problems get bad enough as they might do for example with another serious terrorist attack as they might do with another Financial meltdown someone person will come forward and say give me total power and I will solve this problem that is how the Roman Republic fell Augustus became emperor not because he arrested the Roman senate he became emperor because he promised that he would solve problems that were not being solved if we know who is responsible I have enough faith in the American people uh to demand performance from those responsible if we don't know we will stay away from the PO gos we will not demand it and the day will come when somebody will come forward and we and the government will in effect say take the ball and run with it do what you have to do uh that is the way democracy dies and if something is not done to improve the level of Civic knowledge that is what you should worry about at night so to end where I began uh the the support of civic education in the United States including in this state uh is is a public problem and a public responsibility which is second to none thank you um we by by the way that was not a planted question but I am sure glad she asked it we are so close to having to end that I'm going to suggest that two of you come to the mic and maybe just both ask your questions just because I there's some there are people waiting to ask and we are almost out of time so sir would you like to come and maybe could you both is that all right just a Suitor you're the boss well okay we'll get to we'll have two questions my name is Carl Woodberry I'm from uh conquet High SCH School although not recently uh I know what it's like first of all let me uh say that I personally want to thank you for your contribution to this country and you've always made me proud that I'm from New [Applause] Hampshire although although I have to although I have to ad than you but I will remind you that I was also the luest guy in the world although I have to admit I really did come to see Margaret um uh you want to be on the Supreme Court uh my question is uh somewhat vague uh hopefully uh my vague description of this case will trigger your memory there was an eminent domain case that you ruled on I think when in the majority uh where a city was allowed to take uh private property to then resell to uh uh private developer could you comment on a case and the reasons for your ruling um I uh I my house got picketed as a result of that case and I didn't write the opinion just as Stevens wrote it and I I mean I joined it uh but Justice Stevens wrote the opinion I called Justice Stevens up and I said they ought to be picketing you not me uh but that case is is fascinating not for what it held but for the way it was perceived uh the issue in that case uh revolved around the the doctrine that when the state uses an imminent domain power to take property from someone which it must pay fair value for but when it uses its eminent domain power to take that property the power is limited to takings which are for public uses and the question was basically uh if the if the property ultimately after it is taken by the government is either then resold or or devoted to uses that allow for private profit making does that take the government's Act of of imminent domain and taking that property outside the sphere of public use or public purpose and the majority of the court and it was not unanimous by the way but the majority of the Court held no it doesn't do that uh a good example U are are all the um the the high tension lines in the State uh all the railroad lines in the T State throughout the country most of them were not taken by voluntary uh sales huge amounts of that property were taken by imminent domain and then uh given to utility companies and railroads and so on so that they could string the Alli the the the ultimate public purpose was to provide electricity and transportation and so on to the public uh in general uh but there was a a a private um uh component ultimately to the ownership in order to get there well that's all that's all uh the the the case held what what is fascinating to me is that people did not understand that that's what the law had always been there was nothing new about the majority holding uh in by the Supreme Court what was new was the kind of challenge that was made uh it was a property right challenge that had not been around before but the the opinion uh apparently did not succeed in making it clear that what the court was doing the court majority was doing was sticking to the Old Law of the Constitution as it had always always been and the moral of the story is if if the case gets reported generally uh with that kind of misunderstanding in it uh you never get the misunderstanding uh corrected and there was there was a there was a lesson in that uh uh for for all of us um I I I know I I have I have a few bright spots despite the the reaction to the thing um I I was talking to one of my neighbors about I don't know a month or six weeks after it happened and and by the way the the opinion came down at the end of the term and so I was back in New Hampshire pretty soon and and literally there were some people picketing my house um and um my neighbor knew it and of course some press showed up to televise the people who were picketing and uh some members I think some from the Boston press happened to to talk to one of my neighbors and I was talking with her afterwards and she said you know I I don't think they all bother you like that but she said after all of that she said I went on to the internet and I read the opinion that you join and she said you guys didn't say what they're saying you said uh and I said yeah that's right uh I I I said I said you're one in a million uh and uh but that that shows you what can happen if if you don't make your your your explanation clear we got one more to so we yes but but then but you had a couple closing thoughts you wanted to leave us with so it's sort of your choice but we have this young man here dying to ask a question if it helps I Rec graduate from UNH law so if you will ask a if you will ask a short question I'll be able to squeeze in an answer and a couple of thoughts of my own to close how about that make it a quick one I think a lot of my professors behind me just groaned at the thought of me asking a a short question uh well she's groaning at the idea of M giving a short a fabulous job so I did wonder if you could speak briefly about the importance of diversity on the bench uh for this Supreme Court in the fact that in the past 10 years 20 years there's been more diversity on the Supreme Court than there ever has been before and if you could speak briefly about the benefits of diversity to the judicial system there are there are a couple of benefits uh let me start off with with one that I think is not a clear benefit uh and I believe me I I have the uh the agreement of of uh some of the women on the court for this uh or I wouldn't dare say it but I don't know that in the time for example that I sat on the court with Justice ok' Conor or with Justice Ginsburg that there was a a kind of feminine approach to the law that was different from the approach of the rest of us uh the value of the diversity however uh I I guess is twofold um one is something that I've already touched on uh and that is uh the more diverse the background uh or the backgrounds plural the more likely we are to have somebody on the court who can see things that some ofs people don't see and say hey wait a minute you're missing something when we sit down to discuss the cases uh and in effect any form of diversity contributes to that the other great benefit uh is that sort of the the old notion of of of place at the table uh the people of the United States now realize uh that there is a place for all sorts of people in the population uh the court is no longer a masculine Institution for example when thir Good Marshall went on the court suddenly it was apparent uh that it was the it was a court for black judges as well as white ones when Sonia sodomi went on the court uh it was a court for people with Hispanic background as well as Anglo-Saxons and so on um the the realization that the Supreme Court comes from the people and ultimately will go back to the people uh is is part of its legitimacy uh it is it is part of the basis for trust uh so U God bless the University on the Supreme Court I love I'll be fast so so just in closing do you from what you said to the answer of the civic education question do you think we're losing our ability which has always animated you know our our belief in our Constitution and our country that we are always perfecting our democracy uh I don't think we have lost it I think it is in Jeopardy I am not a pessimist but I am not an optimist about the future of American democracy we have got to get a hold on some of the problem and and they are they are political uh uh more than constitutional problems but if they are not dealt with eg civic education the political problems are going to turn into constitutional problems uh so I uh my belief is uh you know we're we're we're still in the game uh but we have serious work to do and it is serious work that is is being neglected right now or has been neglected do you think that we still have the capacity to do what the what the f the framers did which was to to compromise in in furtherance of solving some of these huge problems I would like to think that enough example of non-c compromise uh is is going to start people thinking that there must be there must be a better way to to try to govern the [Applause] country well just a suor thank you for a really fascinating conversation and one that I'm sure will everyone out here is going to run out and read their constitution and maybe read some of those rulings and for for a final uh word from Susan Ley thank you Susan let me say a tremendous thank you to both of you for a most engaging and spirited yet civil dialogue about the Constitution this was really fun uh and time flew I also would like to thank those of you who participated in the Q&A it really enlivened the evening I think and finally we do have uh some support uh that has helped make this possible and I want to thank both the John Hoffman Family Foundation and the New Hampshire chable foundation for their support tonight and I want to note that the chable foundation support is to promote Civic engagement and is from the L felstein public issues fund let me also End by saying constitutionally speaking is is a yearlong project this is the pilot year there's going to be a symposium at the University of New Hampshire school of law on November 17th to further explore the Constitutional subjects discussed this evening and to prepare Educators and Community leaders to bring conversations like this to their schools and to local communities um and there's going to be a finale on May 17th of 2013 and that's going to be a public conversation with David boy and Ted olssen these preeminent constitutional litigators argued opposing sides of bush versus Gore before the United States Supreme Court in 2001 and more recently argued California's gay marriage case before the 9th Circuit Court of Appeals now it is my pleasure to invite our wonderful audience to continue tonight's conversation in Governor's Hall at the back of the theater um back in Governor's Hall we have the Supreme Court society's new exhibit entitled New Hampshire and the United States Supreme Court one of the panels features the 1977 United States Supreme Court case woolly versus Maynard David H Suter was on brief as New Hampshire attorney general for the uh police chief Woolly and Margaret Warner reported the case for the conquered [Laughter] monitor thank you all for coming please continue the conversation in Governor's Hall thank you [Music]

Channel: UNH Franklin Pierce School of Law

Views: 11,527

Keywords: unh, law, souter, justice, constitution, day, constitutionally, speaking, new, hampshire, margaret, warner, pbs, newshour, supreme, court

Id: D5aM2WnpCQ8

Length: 85min 51sec (5151 seconds)

Published: Mon Sep 17 2012