Constitutionally Speaking with Justice David Souter and Margaret Warner

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 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 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 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 Souter 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 Hamel scholars from the University of New Hampshire are here they're chosen they are chosen for their community service to be Hamel 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 of 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 Souter and Margaret Warner justice Souter justice souter as most of you know is a lifelong New Hampshire resident he's a graduate of Concord 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 at admit admitted women at Yale her early career included a stint at Foster's daily Democrat and several years at the Concord Monitor she is now a celebrated senior correspondent for the PBS Newshour Margaret Warner and justice Souter have been friends for years in 1976 she interviewed David Souter who had just been appointed New Hampshire's Attorney General her front-page article in the Concord Monitor on January 7 1976 appeared under the headline new Attorney General is said to be a lawyer's lawyer the article reported that David Souter 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 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 sold out in two and a half hours about who is the bigger draw for success it's just a Souter but 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 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 topic of tonight which is how does it keep pace with the times that we reflect just a little bit of on its creation last night I had the incredible thrill of being invited to a small event at the National Archives 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 said especially thinking of tonight I said you know as close as I am to you closer to these cases and I it was really humbling to think of the courage that it took for the men and they were all men who had produced these these documents so you know today 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 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 inherently talked about the rights of citizens that had to be protected and so justice Souter 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 it wasn't 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 endorsed to this to this day well I there are no simple explanations I I suppose you can start I at least in my mind I I start with the fact that during the colonial period in most of the colonies certainly around here the colonial administration was not necessarily sporadic but not necessary but but not particularly tight and suddenly there there were these people led by a fairly well-educated elite and they got into the habit of governing themselves there was no one to say no the day came when when the colonial colonial administration tightened up to begin with when they were trying to pay off the French and Indian Wars and the these these people who had been so often left alone suddenly reacted to the tightening of legal control as as tyranny and it was frustration and disgust at the tyranny that ultimately led to the revolution that was then followed in in effect by by another period of disillusionment because finally the Articles of Confederation which was in effect a compact between the the new states was was was ratified by enough of them to go into effect but he didn't work the the problem with the Articles of Confederation was there was there was no central government for things that had to be done centrally if the United States was going to be a state within the community of nations it had to be able to speak with with one clear voice if it was going to develop the commercial basis for strength it had to have a way of of regulating and stimulating commerce beyond each individual state which many of whom were were acting as as as traditional foreign individual states it was perfectly clear that the United States was was simply not going to survive unless something was done to improve on the Articles of Confederation and as I posed everybody knows when the Convention of 1787 was called it was not called to come up with a new constitution the sort of the the job it was given was to amend and reform and improve on the Articles of Confederation and and what happened probably should be a lesson to us all because they got there and they just ran away with the thing why few states want to have any constitutional say that's that's why we haven't had another one but when they when they came to that point and they they didn't run away with it they they essentially had in addition to their frustration they they had they had two sources of inspiration there there really was an extraordinarily well-educated philosophically educated elite at that time that was running the the convention they understood Montesquieu they understood Locke they understood the concept of separating powers so that we would not have what they regarded as a British kind of royal tyranny they also had the notion of of a written document to constitute themselves and they they had they had gotten this idea in their head simply because the colonial charters and the charters the the the Commission's to the colonial governors were written documents 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 for a written constitution and that in itself did not guarantee what we got there was there was there was one other serious problem that they simply had to work out when they got there and that was in in James Madison's view 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 how the individual states were going to be represented in a newly formed National National Congress so you're saying they had to compromise they they did because they had they had BIG's big States versus little States the little states of which we have some familiarity with one where we're afraid of being inundated if if the representation was on a pure population basis you had the southern states with slavery who were scared to death that they would be inundated if the population count was was simply that of free individuals given given the the composition of of their their states and the only way any Constitution and for that matter any improvement on the articles was really going to take place was by a compromise on principles didn't mean selling out but it meant a compromise in a reasonable basis and so we ended up with with a lower house represented by by on a population basis we ended up with a Senate in which each state equally had two votes that was the big and the small we ended up with the the compromise that looks infamous to us when we look back on it now of counting slaves is a slave is 3/5 of a person in order to in order to bring the southern states the slave states along so the basic lesson was a lesson of compromise that brought the the Constitution to the point of of signature and ultimately the nation into being as we know it and then of course one of the three branches of government being the Supreme Court to interpret this constitution through the decades and and and the centuries so in thinking about this discussion and the topic we're here to discuss which is how the Constitution involves I did at your suggestion I think go back and find this article with the help of the state librarian of New Hampshire and I'm already sorry 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 wrote that your approach to the law I said finds its roots into 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 wouldn't so did I have it wrong then or has your thinking evolved since you were a 36 year old newly minted State Attorney General well the the III think the quotation was probably absolutely accurate um but it was it was more historic than than you 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 I haven't I haven't changed my mind about that so far as so far as it went the the the the fact is the the meaning of the constitutional language and and by the way we were talking 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 has not changed with with time but when I what I said or what I was quoted as saying and I I'm sure that was a complete quote in effect left out something very important 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 36 years on as as on on anything at all to to explain what I'm getting at let me let me step back and just set a little scene we we have in a way a kind of two constitutions we have two elements in that Constitution one is is structural it constitutes the government it says what it shall consist of the President to legislative houses an independent judiciary and so on and there are all kinds of specifications in there the president's got to be 35 years old under the president amendments the inauguration day is January 20th and so on we've also got a call it the Liberty Constitution not only the building 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 this one sort of dichotomy structural versus or as distinguishing rights the other is sort of big division that you can make in in the Constitution is in the language as opposed to the subject matter the Constitution has a great range of breadth of language some of it is as specific as I mentioned a moment ago 35 years old means 35 years old if the president is 34 given any president some of it however is of extraordinary breadth in the structural Constitution its it speaks of Commerce among the the states doesn't define it any more precisely than that you get into the Bill of Rights you you get terms like unreasonable searches and seizures which which are prohibited references to the freedom of speech without any further definition security in people's houses and so on these general terms I think are best understood as kind of a listing or a menu of approved values the application of which has got to be worked out over time they couldn't be worked out at the time the whole point of it was that it was a constitution and a bill of rights for the indefinite future it was Mike it was not like a statute which deals with a 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 problem of trying to make them work in practice 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 ultimately when push comes to shove to to the judicial branch to the Supreme Court of the United States does to be if it doesn't give thee then are you saying that the Supreme Court once presented with the 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 decisions from whether a couple can a married couple can use contraceptives to roe v wade dealing with abortion to the recent fair I mean ten years ago or so case involving the Texas anti sodomy laws you've 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 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 at how that right was enforced you will find that the Supreme Court has held that it includes or it implies a right to freedom of association because free speech doesn't mean much to people who do not have positions of power or large amounts of money to purchase broadcast time and so on with without the without the power to come together and have someone speak for them their right to speak really isn't worth much 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 a great deal of what the Supreme Court does 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 so that when you then get to the you know the list that that you came up with and including you know right rights to limits on 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 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 so so there so there are unenumerated rights on a Newman and the Ninth Amendment of the Constitution speaks of them they said you know the enumeration of some does not exclude others that are not enumerated but the 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 are the rights that are enumerated from which the court has to work the other are the other 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 point of care with language when when that will give you an answer is is faithfulness to the people who use the language and 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 and sort of pouring them into some vague language which we think we can twist to to mean what we want the the the obligation when we when the supreme court or any court is working out this how do you make it work a kind of problem is to explain why the court makes it work that way so that it becomes apparent we hope that we're not just putting our own ideas of what might be nice into into constitutional language but you do not think as some believe Justice Scalia 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 I you you you cannot stick to that for example give us yeah do give us an example well actually I've already given one nobody nobody in his right mind in 1791 when the when the Bill of Rights was adopted ever thought that the that freedom of speech and freedom of association and so on the first amendment rights would carry with it a right to join organizations it never crossed their minds at political parties or what kind of organizations things like the n-double-a-cp and so that you know if if you had said to somebody in 1791 after after the Bill of Rights was ratified you know does this speech Clause cover anything but speech they they would have looked at you and said you know no speaka de English it's it says speech but we know that in fact if you if you limited that narrowly it's not going to mean very much and I I gave speaking of speeches I gave a speech a couple of years ago in which I gave another example of why simply reading doesn't do it and and that is if you if you look at the the text of the the first amendment Congress will make no law abridging the freedom of speech and so on no law sounds pretty tough 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 no one doubts for example that if an individual was poised with a microphone in his mouth to divulge America's nucleus secrets that he could be stopped without violating the First Amendment Justice Holmes used the the great phrase nobody has a right to shout fire in a crowded theater which is worth remembering this evening so that you know no law doesn't mean no law and a a third reason why why simply reading is not going to give you answers let alone infallible answers is that as as that last example I suppose shows 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 and I mean the the paradigm examples are the guarantees of liberty and equality if I exercise my little liberty to the greatest possible extent I can suppress any you know the the rights of a lot of people just an example you could if you a restaurant owner you would have the Liberty to not serve people you didn't want to yeah but I think there's a an exam may be an example that that probably a lot of us have in our minds a lot is is the Supreme Court's decision the the year after I stepped down on political campaign contributions by corporations the so-called Citizens United decision should corporations in effect be subject to the limitations on political expenditures that they were and in fact had been subject to for a century there was there was a play of constitutional values going on if the Supreme Court took a liberté model the Liberty model of free expression was corporations can spend all the money they want to in the world if they took an equality 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 the Supreme Court and Citizens United went went with the Liberty model 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 they're 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 undoes those I'm gonna take a partial pass on that and I'll tell you 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 broke when I was on the court on campaign finance will know perfectly well that I would have gone the other way and in Citizens United the the reason I'm not going to go as far as as I might do in answering that question is that you can't get into that subject and explore it fully without getting into politics and I am I am federal judge I'm still a federal judge and there's a point beyond which we do not comment on the behavior of the political branches in their politics that only is is not none of our business under the under the separation of powers but it's it's a line that has to be hewed 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 supposed to make of this and the only answer I can give is the public 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 reconciling tensions within the Constitution or drawing lines when the language that the Constitution uses is very broad like commerce power and so on do they make a convincing case that the reasons that they are giving are the real reasons and that's that's why to just throw in a kind of a footnote to that you know we all here and for that matter probably all of us say with with some frequency that judicial decisions ought to be principled decisions 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 principled decision if speech always wins even though it's atomic secrets that are going to be broadcast - 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 and a principled 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 principled 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 but in summary the public judgement has got to be a judgment 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 Plessy versus Ferguson in 1896 which essentially said that despite the Equal Protection Clause of the the Fourteenth Amendment that 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 sixty 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 violated the Fourteenth Amendment now it explained how that happened again sort of what is the public to make of that this one wrongly decided and then you have the court correcting it here's what I make of it you know it's very fashion ameen it's it's it's it's natural I've done it myself to go around saying you know Plus he was wrong the day it was decided but that in fact is unrealistic and and III think it's unfair the the issue in Plessy 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 doesn't make any difference and the issue that sort of never got stated exactly because nobody really headed expressly in mind was what are the facts that we ought to consider in deciding whether there is equality or not what Plessy said was we're going to consider the the kind of objective physical miserable facts the railroad car is really the same - the same upholstery on the seats etc things like that they took kind of a a formalistic physical view of it when Brown came along the court said this was this was the great summary line in breath the court said 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 quality in the in the enforced segregation under law the big difference was that what what the brown case saw as the facts were not simply you know the the miserable things like 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 separation mandated separation was inherent in equality was the court in Plessy dishonest or stupid or demonstrably wrong when it didn't look to meaning and this is where 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 were referred to Margaret I minded everybody that the court that decided Plessy in Ferguson in 1890 consisted of judges who remember it's slavery and if you remembered slavery the idea that there was a constitutional guarantee that the formerly enslaved population and their children and grandchildren we're entitled to exactly equal facilities on a railroad with the foreman a formally dominant white population that looked like real progress you won't find that statement in Plessy but we 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 and in fact the the the the famous dissenter in Plessy the first Justice Justice Harlan he he based his dissent on on a on a strictly literal reading of the word were it equal he said means colorblind which has never been the law but the the court in in Brown v Board of Education as you said it had 60 years since Plessy and it had 90 years since the end of slavery and it no longer had the background of slavery to look at equal at physically equal facilities and say hey this is great we're making real progress what in fact it had was 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 enforced a a judgment of inequality what changed was the way they looked at the facts the concept of equality 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 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 learn from Brown is that the facts can include the meaning of facts as people experience in them as long as we have the eyes to see that in our capacity to see that changes over time and it changed over the time between Plessy and brown there's our capacity to see it change or do it's 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 you know the word the word should is is is is tough to deal with here or is it just do no but I was gonna that's basically what you get to we can only see what our experience has opened our eyes to and one reason you have nine people on the Supreme Court rather than one is it's not merely 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 but that's that's that's why you want a lot of eyes and a lot of minds because we don't all see the same things because we have not all had the same experience I'll give you an example from from my personal life 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 you're finishing your answer we are gonna 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 anyway go ahead now you know what I meant when I said that was the only time I said less we were you were talking about I had asked whether justices just either necessarily doers should reflect the story from I was getting into my story yes one of the issues that the court dealt with at great length in the last ten years that I was on the court was the the right of jury trial and what can be done to affect the conduct of trials that either is consistent or inconsistent with it we got into that problem because 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 prison sentences and the question was does does that in effect inhibit the right or limit the legitimate right of jury trial I came down on on the side of saying ultimately yes it does and the rule that finally was evolved was and it's another how to do it rule you won't find it written in the Constitution area but the rule that 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 five 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 and I came away from that experience with a respect for the for the integrity of jurors and 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 they'll convict whether it's reasonable doubt or not those those cynical thoughts are totally off-base and I also had experiences here with the grand jury in which there are points in which the grand jury thought it could sniff politics into a request for an indictment and it was big in its heels 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 judges 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 you want to start and if you just please just give us your name and I'm Joe Fahey I'm from Bedford and I attend Trinity High School if you were still a member on the Supreme Court how would you have voted on the national health care reform law gonna take a pass on that one now wait a minute don't go away I'm gonna say more I I don't I don't think it's appropriate for for retired justices to go around second-guessing what their colleagues ultimately did but I want to use your question nonetheless to to kind of illustrate again something something that that I had said earlier I'd said earlier that the way we give effect to these values which are left to be worked out later and the way sometimes we we have to resolve tension between competing values determines is is is determined by our analysis of the facts and what might happen one way what might happen another way the health care decision presents a good example of that because there was a majority as I'm sure you know there was a majority of five people who felt that mandating health care was not regulating Comus it really was forcing people into commerce who were not already there that was a fact issue the fact that the majority of five emphasized was 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 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 in shirred or not sooner or later they're gonna need a doctor and I forget whether anyone specifically mentioned this but we all know that if you don't have a doctor and you don't have insurance and you're in trouble you're gonna 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 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 it was the same kind of argument that if you will went on between the the the the the view of equality in Plessy and Ferguson which says look we just looked at the to the railroad cars or the bricks and mortar 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 health care decisions 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 without deciding how you're going to view the facts thank you so that isn't what you asked for but I thank you I'm Alex rose from Exxon high school and my question is when and if the marriage equality law becomes available for the Supreme Court how do you think they will rule and why I wish I'd started with you all sooner I'll tell you a story about two friends of mine two of my closest friends in college have maintained a close friendship they were roommates one of them was an investment banker who actually died last year and the other one was was an Episcopal priest and their families would get together every summer and spend a long weekend together and the son of the investment banker told me that the way they started off their conversation every year was the same way the priest would say to his investment bank of Rome made he'd say he said what's the market gonna do the investment banker would say I have no idea and he would then turn to the priest and he would say what's God gonna do and the priest would say I have no idea you got your answer in the discussion of the rights enumerated in the Bill of Rights it often comes up and the best example I can give is um the recent decision of DC V Heller whether the District of Columbia versus Heller yes it often comes up whether these rights are purely for the individual or if they are a more communal collective right what would your opinion be on that well I gave my opinion on that because I would I was on the court when when when the on the case was decided you briefly would tell people oh honey I'm sorry the the the the issue under under that in a subsequent Second Amendment case was whether the the the the Second Amendment guarantee excuse me of a right to bear arms was the right of any individual no matter what his position or business in life to to carry firearms or whether in fact it was the right that the guarantee was limited to the the use of firearms in what used to be called the militia we would we would refer to it today as the you know the National Guard or the Armed Forces and as I as I said I and and the the the case came up to the court because the District of Columbia had fairly strict regulations of the the right to carry firearms and an individual who believed that his right to have a fire on in his house ready to go had been infringed and it certainly had been limited raised the question of whether it was an individual right or whether it was a right that only pertained to people when they were carrying as as part of the in effect the the National Defense and the the court went five to four on that and it held that it was an individual right I was in the dissent on that the dissent was written by justice Stevens and I of course think that justice Stevens said they had the better part of of the argument the the the reason that I guess I haven't changed my mind on it is really the reasons that justice Stevens gave I didn't write a separate opinion on it but just to simply to indicate why I thought frankly that it was so obvious that the stevens view was the better view was that the the second amendment is is written with the first clause that refers to the to the need to have the value of having a well-regulated militia therefore the right to bear arms shall not be infringed I'll be honest we 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 who carrying arms for that reason and as I guess you probably know because I'm guessing you've probably read the opinions the the opinions on each side justice Stevens his opinion for the dissent which I joined justice scalia's for they 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 but I've got to say I'm I am certainly unrepentant I'm Alec Madine from Gilmanton and I go to Guildford High School and what where do you stand on States and their abilities to nullify federal law I guess that's kind of a softball question we fought a civil war about that and and the nullification side lost and the nullification argument is no better today than it was in 1860 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 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 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 just in general does anyone else have a question oh good great hi I'm Debby scary and I'm from Windham and my question tonight is really around where we started this conversation which was really around the school around the work schools and we've I've heard a lot this evening about democratic principles civic engagement and I guess I'm wondering justice souter 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'll have to be careful of that one because I I could talk even longer on that than on some of the other things I've talked on but I'll start with the bottom line I don't believe there is there is any problem of American politics in American public life which is more significant today than the pervasive civic ignorance of the Constitution of the United States and the structure of government I hope every one of you runs to the legislature I won't spend a lot of time on statistics we we know with pretty reliable evidence the two thirds of the people in the United States do not know that we have three separate branches of government I remember and I I could I don't know the name of it I can remember hearing about a survey back four or five years ago in which a substantial percentage of Americans believe that the Supreme Court of the United States was a committee of the Congress it didn't used to be this bad when I was in school we we had actually in the course of high school there were two required civics courses when we got out of high school we may not have known a lot but we at least had a basic understanding of the structure of American government the structure of state government for that matter and what that gave us was not only a kind of a framework to hang the other thing hang on the the things that we learned later it gave us a basic sense of where responsibility lies for given problems within the government and a corollary of that was we we certainly understood where responsibilities lay in matters that were the business of the legislative branch or the Congress of the United States and we knew that we could influence that by voting today that state I don't believe there would have been any two-thirds ignorance rule back at that time starting about 1970 the teaching of civics went into decline from which it is 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 in New Hampshire who are trying to turn that around 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 said that I think it is the most significant problem that we've got is that I think some of the aspects of current American government that that people on both sides find frustrating are in Part A a function of the inability of people to understand how government can and should function it is it is a product of civic ignorance what I worry about is is is a remark that Benjamin Franklin made and Susan Susan Leigh he quoted Jefferson at the beginning about how and and ignorant people can never remain a free people democracy cannot survive too much ignorance Franklin in effect had 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 Franklin was asked by someone I think on the streets of Philadelphia shortly after the 1787 convention adjure and what kind of government the Constitution would give us if it was adopted and Franklin's famous answer was 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 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 some one 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 to demand performance from those responsible if we don't know we will stay away from the polls 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 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 the the support of civic education in the United States including in this state is is a public problem and a public responsibility which is second to none but by the way that was not a planted question but I am sure glad she asked 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 something there people waiting to ask and we are almost out of time so sir would you like to come and maybe you could you both would said all right justice Souter the other boss okay we'll get to it I'll have two questions my name is Karl Woodberry I'm from Concord High School although not recently I know what it's like first of all let me say I person want to thank you for your contribution to this country and you've always made me proud that I'm from New Hampshire thank you but I remind you that I was also the luckiest guy in the world although I have to admit I really did come to see Margaret you want to be on the Supreme Court my question is a somewhat vague hopefully my vague description of this case will trigger your memory there was an eminent domain case that you ruled on I think when the majority where a city was allowed to take private property to then resell to a private developer could you comment on that case and the reasons for your ruling I my house got picketed as a result of that case and I didn't write the opinion justice Stevens wrote it and I mean I joined it but justice Stevens wrote the opinion I call justice Stevens up and I said they ought to be picketing you but that case is is fascinating not for what it held but for the way it was perceived the issue in that case revolved around the the doctrine that when the state uses an eminent domain power to take property from someone which it must pay for fair value for 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 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 eminent 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 but the majority of the court held no it doesn't do that a good example are all the the high tension lines in the state all the railroad lines in the tech state throughout the country most of them were not taken by voluntary sales huge amounts of that property were taken by eminent domain and then given to utility companies and railroads and so on so that they could string their lines the the ultimate public purpose was to provide electricity and transportation and so on to the public in general but there was a a private component ultimately to the ownership in order to get there well that's all that's all the the case held what is fascinating to me is that people did not understand that that's what the law had always been it was nothing new about the majority holding in by the Supreme Court what was new was the kind of challenge that was made it was a property right challenge that had not been around before but the the opinion 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 with that kind of misunderstanding in it you could never get the misunderstanding corrected and there was there was a there was a lesson in that for for all of us III know I I have I have a few bright spots despite the the reaction to the thing I I was talking to one of my neighbors about I don't know a month or six weeks after it happened 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 and my neighbor knew I don't of course some press showed up to televise the people who were picketing and some members I think some from the Boston press happened to talk to one of my neighbors and I was trying with her afterwards and she said you know I don't think they have other you like that but she said after all of that she said I went onto the internet and I read the opinion that you join and she said you guys didn't say what they're saying you said and I said yeah that's right I said I said you're one in a million and but that that shows you what can happen if you don't make your your explanation clear 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 from UNH law so if you will ask ace 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 short question ah well she's groaning at the idea I did wonder if you could speak briefly about the importance of diversity on the bench for the Supreme Court in the fact that in the past ten years twenty 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 let me start off with with one that I think is not a clear benefit and I believe me I I have the the agreement of some of the women on the court for this or I wouldn't dare say it but I don't know that in the time for example but i sat on the court with justice O'Connor 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 the value of the diversity however I guess it's twofold one is something that I've already touched on and that is the more diverse the background or the backgrounds plural the more likely we are to have somebody on the court who can see things that some of those people don't see and say hey wait a minute you're missing something when we sit down to discuss the cases and in effect any form of diversity contributes to that the other great benefit is that sort of the the old notion of a place at the table the people of the United States now realize that there is a place for all sorts of people in the population the court is no longer a masculine institution for example when Thurgood Marshall went on the court suddenly it was apparent that it was the it was a court for black judges as well as white ones when Sonia Sotomayor went on the court it was a court for people with Hispanic background as well as anglo-saxons and so on the realization that the Supreme Court comes from the people and ultimately will go back to the people is is part of its legitimacy it is it is part of the basis for trust so god bless the diversity on the Supreme Court I'll be back 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 is always animated you know our belief in our Constitution and our country that we are always perfecting our democracy 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 province and and they are they are political more than constitutional problems but if they are not dealt with eg civic education the political problems are going to turn into constitutional problems so I my belief is you know we're still in the game but we have serious work to do and it is serious work that is being neglected right now do you think that we still have the capacity to do with the but the fact the framers did which was to compromise in furtherance of solving some of these huge problems I would like to think that enough example of non compromise is is going to start people thinking that there must be there must be a better way to try to govern the country well justice souter 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 a final word from Susan Leahy 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 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 some support that has helped make this possible and I want to thank both the John Hoffman Family Foundation and the New Hampshire Charitable Foundation for their support tonight and I want to note that the Chairman Dacians support is to promote civic engagement and is from the Lu Feldstein public issues fund let me also end by saying constitutionally speaking is is a year-long 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 and there's going to be a finale on May 17th of 2013 and that's going to be a public conversation with David Boies and Ted Olson 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 Governors Hall at the back of the theater back in Governors Hall we have the Supreme Court Society's new exhibit entitled New Hampshire and the United States Supreme Court one of the panel's features the 1977 United States Supreme Court case Wooley vs. Maynard David H Souter was on brief as New Hampshire Attorney General for the police chief Willie and Margaret Warner reported the case for the Concord Monitor thank you all for coming please continue the conversation in Governors hall Thanks you you

Channel: New Hampshire Humanities

Views: 48,281

Keywords: david, souter, supreme, court, civics, education, constitution, constitutionall, Cops

Id: yVJhXQB1TAk

Length: 86min 10sec (5170 seconds)

Published: Mon Sep 17 2012