Justice Clarence Thomas and CAC's Akhil Amar debate past, present, and future of our Constitution

good evening I'm David fario the archist of the United States and it's a pleasure to welcome you to the national archives in the William G mcgaan theater this evening special Welcome to our friends at C-SPAN and the other media Outlets who are with us tonight we have a lot of special guests in the audience today but I want to single out for a special welcome senator Mike Lee who's a good friend of the National Archives Senator Lee from Utah who himself clerked for a future Supreme Court Justice judge Alo when he was at the US court of appeals for the third circuit welcome on Monday the Constitution of the United States turns 225 tonight's program is one of several that the National Archives is presenting this month in celebration of this founding document signed in Philadelphia on September 17th 1787 tonight we're honored to welcome two distinguished guests to explore the past present and future of the United States Constitution our partners for tonight's program in honor of the of of the Constitution are the Federalist society and the Constitutional accountability Center and thanks for the opportunity to collaborate with you this evening while the Declaration of Independence was long heralded as the icon of our independence and nationhood the Constitution did not get as much attention its pros is not as stirring as the Declarations and its four parchment pages to the Declaration single sheet deter most casual readers that lack of Celebration however worked to its advantage over the years the Declaration was exposed to sunlight dust and smoke but the con Constitution was never exhibited when you view both original documents upstairs in the Rotunda you immediately see the difference the Declaration is faded to the point of illegibility while the Constitution looks nearly as fresh as it did when the Scribe Jacob chalice presented it to the Continental Convention Constitutional Convention celebrating Constitution Day on September 17th has been a longstanding tradition here at the National Archives it was the one day of the year when all four pages of the document were displayed to the public since 2003 we've been able to display all four pages year round in the new cases in the Rotunda but this year we've added something special for the 225th Anniversary for the first time in the history of the National Archives we will display the resolution of transmitt to the Continental Congress sometimes referred to as the fifth page of the Constitution this momentous document described how the Constitution would be ratified and put into action you'll be able to see it starting on Friday September 14th and it will remain out through Monday Constitution Day September 17th on the morning of Constitution Day the Highlight event of our celebration takes place a naturalization ceremony for 225 new citizens of the United States though the National Archives has hosted the ceremony for decades it never ceases to impress as the prospective citizens vow to support and defend the constitution in front of the actual document we encourage you to return over the next several days for more discussions films and special events for the Constitution's birthday on Monday September 17th at noon from noon until 2 we do happy birthday US Constitution here in the theater it's a special program in celebration of the signing of the Constitution and the first 225 five guests will join the founding fathers for cake after their performance in the mwan theater on Wednesday September September 19th at 7 p.m. the Constitution and the War of 1812 again here in the theater this is the 2012 Claude Moore lecture journalist Roger mud moderates a panel discussion on what what so proudly we hailed messages and lessons from the War of [Music] 1812 tonight we're privileged to hear two distinguished guests discuss the past present and future of the United States Constitution akille Reed Amar is Sterling professor of Law and political science at Yale University where he teaches constitutional law at both the college and the law school he received both his ba and JD from Yale and served as an editor of the Yale Law Journal after clerking for Steven Brier when he was judge of the US court of appeals for the first circuit Professor Omar joined the faculty of Yale in 1985 Professor Omar is a co-editor of a leading constitutional law case book processes of constitutional decisionmaking and is the author of several other books including the Constitution and criminal procedure the Bill of Rights creation and reconstruction America's Constitution a biography and most recently America's Unwritten Constitution the precedents and principles we live by The Honorable Clarence Thomas has served as an associate Justice of the Supreme Court of the United States for nearly 21 years he attended conception Seminary and received an AB from the College of the of the Holy Cross and a JD from y Law School he served as an Assistant Attorney General of Missouri from 1974 to 1977 an attorney with the Monsanto company from 77 to 79 and Legislative Assistant to Senator John Danforth from 1979 to 881 from 1981 to 82 he served as assistant secretary for civil rights in the US Department of Education and as chairman of the US equal opportunity commission from 1982 to 1990 he became a judge of the US court of appeals for the District of Columbia circuit in 1990 and President Bush nominated him as an associate Justice of the Supreme Court and he took his seat on October 23rd 1991 ladies and Gentlemen please welcome Justice Thomas and Professor Omar to the stage thank you ladies and gentlemen for that extraordinarly gracious warm welcome thank you uh uh uh to the National Archives and to the staff for for making um this event possible thanks also special thanks to the Federalist society and to the Constitution accountability Center and and thank you justice Thomas for for being with us today as we Mark the 225th birthday 225th Anniversary of our constitution um and I guess I'd like to start our conversation which seems fitting with those the with the words that the constitution starts with We the People um and how that what that phrase means to you how that phrase maybe has changed over time thanks to amendments and and other developments what do you mean who who we you know who is this we when did when did folks like you and me become part of this this this we well you know the um well obviously it didn't it wasn't perfect uh that's an understatement but you grow up in an environment at least I was fortunate enough to where we believe that it was perfect uh you know it's very I think uh pretty much it's it's acceptable or maybe in Vogue somewhat today to be so critical or almost invariably critical of what of the country and pointing out what's wrong uh there are obviously things wrong uh there were obviously things wrong when I grew up in Georgia and that was pointed out but there was always this underlying belief that we were entitled to be a full participant in We the People um that's the way we grew up it was the way the nuns who were all immigrants uh would explain it to us that we were entitled as citizens of this country to be full participants uh there was never any doubt that we were inherently equal it said so in the Declaration of Independence um of course there were times uh later on that I too became quite cynical and would make glib remarks and reciting the uh not so pleasant remarks in reciting the Pledge of Allegiance or say things that I think were glad they were not these cellphones people can YouTube you and it's around forever but I was just upset about things but I grew up in an environment with people around me who believed that this country could be better that the framework for it was there in we the people we used to to memorize the preamble to the Constitution I I always think it's so fascinating to think of these black kids in the segregated School in Savannah reciting the preamble to the Constitution of the United States or standing out in the Schoo yard uh saying the Pledge of Allegiance every day before school what do we believe I mean everything so obviously in front of you is wrong you can't go to the public library you can't live in certain neighborhoods you can't go to certain schools but despite all of that you lived in an environment of people who said it was still our Birthright to be included and continue to push not only to change the laws but to maintain that belief in our hearts I think today we sort of think that all of the work is done with the laws I think the heavy lifting for us was done in here uh because the people who raised us believed it in here and the nuns who taught us believed it in here um you know today I was um just down at um Louisiana State University and if you go to the Southeast Conference there's this tremendous enthusiasm about football I'm a diard Nebraska fan myself so I understand that enthusiasm but can you imagine when I grew up that's the enthusiasm we had for a country that did not allow us to fully participate and one of the birth rights that's been passed on I still have it I still believe that it's perfect and I think I resist the kind of attitude that it's all lost it's it's the same attitude I had then it's a it's ours it's it's ours to make the best of to disagree about to work with to realize its imperfections but to keep working with it so when I think of We the People there's a lot I think of the exclusion but the possibility and then the eventuality of the inclusion of you and me I mean look at no one cares that what 40 years ago you and I would not be sitting here talking about the constitution in the United States states accept to say we're excluded so and now it's hardly noticed you know well except you're a sterling professor of law so they probably noticed that you've done okay for yourself my friend I doubt you know it's that's nice of you to say but I you know I I really look back and I have to to say it's the same people you know I've tried to say it over the years and I think in this city people that's dismissed as well you're being you know a poana or something like that but I still say it's all the people who never gave up and had every reason to and you know first in that line would be people like my grandparents not the cynical people who know it all but these unlettered people who never ever quit who got up every day and believed and believed that even if they didn't make it those who came after them would it's almost as though they self-sacrificed they were self-sacrificing offerings for these two boys and for the generations to come afterward so you know I I don't think I you know people say you haven't I haven't done I've done this or that and you know I think you and I both have people who gave the last full measure for us in many many ways and and so I can't really take too many bows for that so there's so much there and over the course of our conversation I hope you mentioned the Declaration of Independence and the fullness of time you alluded to Mr Lincoln the last full measure that the the Gettysburg um address um you mentioned who was in and who wasn't in this we and how that's changed over time me I just want to say a little bit about because I agree with you that it is a little easy to be cynical there were exclusions and we can't forget that that we didn't mean everyone at the founding but just to pick up on that and then we'll segue towards some of the other things that you've talked about looking back just so the rest of us so we can all begin to appreciate how extraordinary this birthday is that we we celebrate so 225 years ago um uh let's say August 1787 self-government exists almost nowhere in the planet outside of the New World um you have um uh a few sheep and goat herders in Switzerland um you this is before there were Swiss banks um and Holland the Netherlands is in the process of losing self-government England yes it has a a House of Commons but also has a House of Lords and a hereditary King and um and uh and uh uh so uh and you look back for so the vast multitude of the planet no self-government in Russia in China in India in Africa most of Europe uh absolutist Tyrant sort of sits on the throne in France you look back for the previous millennial you have democracy self-govern existing in a very few tiny little city states Athens and they flicker out they because they can't defend themselves militarily and even where democracy did exist people who speak the same language worship the same Gods um same climate and and culture over very small little areas and then as I said they blinked out that's all of world history very little democracy and you look today and democracy is exist across half the planet I like our chances in The Next Century and if you ask me what changed what's the hinge of all of that I think I would say those words we the people 225 years ago is the hinge of world history because for all its exclusions at the time it was way better more perfect than went before because For the First time ever in the history of the planet an entire continent got to vote on how they and their posterity would be governed and there were lot of exclusions you know from our perspective but we wouldn't exist you know as a democratic country as a democratic world but for that that I think I would say it's the hinge of all modern history to be the before democracy almost nowhere and then a project is begun it's launched it's not perfect it's it's better than what we had before but not at all you know as good as what we have now because I think we we have gotten better I I want to talk a little bit about how that process of of getting better but I'm with you I'm not a cynic I think that we the people do ordained and establish was pretty stunning what we actually did um let me actually pick up on another thing just actually since we're on this and then we'll move forward in time you wrote a it's not just that we voted and it was a pretty fair vote and it was a vote that could be lost in a whole bunch of states and in fact it was it was voted down in Rhode Island and voted down in North Carolina was wasn't rigged but you wrote a very interesting concurrence I think quite had a brilliant concurrence frankly in a case called Ohio versus McIntyre where you also talked about the breath of free speech in in this event people could be for the Constitution or against it no one was shut down no one was put in prison if they liked George Washington or they didn't like George Washington or amazing amount even of anonymous speech just just this proliferation robust wide open uninhibited um discourse up and down a continent for a year that's the year who that we Mark today this this month the beginning of that so some thoughts on on free speech and vote at that moment and as you look back and then we'll work our way forward in time well you know I I'm probably I don't have a lot of company with my views on McIntyre and Anonymous speech but I you think about it 225 years ago you had a you had the Articles of Confederation you you had a Congress that didn't work it was not functioning oh that was inadvertent but you had um was very interesting convention that arguably wasn't quite what they were authorized to do um you had uh the resolution that's they're going to be on exhibit it's kind of interestingly worded uh it certainly throws the word unanimous in and use it interesting way um but you know I mean you think of the going to washingon and trying to get him to leave Mount Vernon and he doesn't want to leave because he's finally back home he'd been away over four years and he does want to leave and he goes to Philadelphia and they do it they come up with this document what four months M and now you have it it's going to the Congress and it's going to be sent to the People Too to the people to the people to ratify amazing I think that you know I when I read about it I I have to admit I'm one of those I'm totally a sucker you know I I get chills about it because that's the beginning of the development of a place that allows you and me to be here yes with all its warts you know it's sort of the way I feel about my hometown of Savannah it's got a lot of problems but it's my home and that's the way I feel about the Constitution it's got a lot of problems I don't know if I could do any better um but it's ours and we get a chance through this wonderful uh opportunity that we have in different roles to make it all work to try to understand it to try to make the country work you know I maybe a part of the thing that we could do with celebrating the birthday I mean would you have a constitution if everybody there was a cynic would you have the amendments to the Constitution if Mason was more cynical than adamant would you have uh the Declaration of Independence if Jefferson was a cynic rather than someone who actually believed in something would you have a constitution of Madison didn't care I mean if we just all the negative stuff you know I have come to the point and I tell my law clerks this that I've been in the city doing these jobs now for half of my natural life the only reasons to do them are the ideals now it's all it's just these are things you believe in this constitution this country I know that's not what you say in Washington DC anymore you're supposed to say there's some angle there's some methodology you're pushing there's originalism there's textualism there are all these useless peripheral debates other than just doing our jobs the best we can and trying to live up to our respect oath oath our respective Oaths to make it all work just what you're talking about you know your book that's what you're saying you're saying you got the text but you also have over here this Unwritten part was all these things that are happening over here to make it all work I know that's not me so two thoughts on on on that since you mentioned both the Declaration and the Bill of Rights again just to sort of set the stage about why the Constitution is this I think thing really worthy of our celebration acknowledging the who wasn't part of the Wii none of the ancient democracies that ever existed in the world even if they had Democratic constitutions ever had a democratic Constitution making process none of them were put to votes by the people themselves in Athens or Florence OR pre-imperial Rome in 1776 as great as the Declaration of Independence was not put to a vote not a lot of free speech either you're for us or you're against us and it's the middle of a war and we can't have this philosophical debate um and the Constitution is put to a vote in which in eight of the 13 states property qualifications are lowered or eliminated compared to what they were before and then a year-long conversation in which people say you know there's some problems here in effect it's crowd sourced and and and we the people actually say where are the rights and we get this Bill of Rights because of that conversation and even before there's the text of freedom of speech there's the practice of freedom of speech five times the Bill of Rights uses the same phrase the people in the first in the second in the fourth in the ninth in the 10th am and I think it's because it's coming from the people so this process of correction that you are talking about that's more perfect I think is connected to the Democratic idea when you get people together and they are in the proc and you have to make sure that they're not synical have to beat the Anti-Federalist because then there's no Constitution if you don't Prevail but you've got to get them keep them on board to keep them believing you know keep them part of the game maybe you'll win next time and they do we call that the Bill of Rights to to keep that conversation going so that you can actually perfect it make it at least or at least make it better than it was the day before with the Bill of Rights you know I don't know whether they're Anti-Federalists I mean maybe they didn't quite believe that that the national government should be given so given unfettered Authority maybe they were the people who were saying we got to have a Bill of Rights you got to temper this Authority with protection for the individual so I don't know whether I would just call them ant anti Anti-Federalists I think that they were people who um certainly saw that they had these god-given rights or believed it and they thought that this would be an intrusion upon it if you didn't have some limits so think about it would you have had the Bill of Rights if you didn't have those you that we would call Anti-Federalist I doubt it okay and and and that and you a fierce believer in Independence of thought in dissent in you know not even George Washington and Ben Franklin might have had a complete Monopoly on all wisdom so it was useful that you had a George Mason critiquing it they had George Mason I I think George Mason seemed like a pretty stubborn guy and the other thing was that he you know I think that he made it clear he did not undermine the process if you go back and you look at the last days of the convention George Mason did not throw a monkey wrench into the works right what he did is he made it clear he didn't filibuster he made it absolutely clear he had his list of objections he thought you needed a Bill of Rights he'd been down this road before he was not a politician he had no IDE he he he was not into making a lot of friends and and allies he was going to argue his point and then he was going to return to Gunston home the I happen to think that that was pretty effective he wasn't against remember he was very helpful in developing the Constitution with a strong national government but he wanted to build this wall that to make it clear that that did not exist in in in sort of uh uh contradiction or an opposition to these individual rights so I think he was you know again he wasn't cynical he wasn't an obstructionist but he was I think rightly adamant that these protections exist and here's one way of putting that and then maybe we'll start to move forward in time with with your permission um the people who oppose the Declaration of Independence you never hear from them again they're basically cast politically into the um into the void um the people who oppose the constitution who think it could be better still we call them Anti-Federalist they become they're not cast out they become presidents of the United States James Monroe vice presidents of the United States Elbridge Gary George Clinton justices on the Supreme Court Samuel Chase so so it's it's extraordinary how they're kept in the process but think about it it continues to play out it's the same debate what are the limits what are the limits you know I hear people today make it seem as though that when you talk about limits on the national government that that's antithetical to the Constitution the existence of a national government it has been it's embedded in the original argument the argument was was always about limits it wasn't about there you know you hear this kind of glib comment oh these people are trying to push us back to the Articles of Confederation that's ludicrous and that's that really doesn't that's unhelpful the very man who pushed for these limits actually helped develop the Constitution so the debate when you move it forward whether you look at um you look at um mullik versus Maryland you look at it's always arguing about you know whether there should be National Bank you're arguing about the same limitations you can fast forward to De today those that debate is embedded in the very formation of the country from the beginning from the time we adopted the Constitution that debate existed and that debate has continued there was a Civil War fought not just over slavery which you know obviously I think I'm on the right side winning you know there I have a personal interest in that and there are lots of these things but at the same time you understand that there were some people still fighting that debate or fighting that you know engaged in that debate and subsequent to that even with the adoption of 13th and 14th and 15th amendments you still have it so we're still talking about what are the limits of the national government what is the role of the national government how do we protect individual rights and individual liberties Etc so let's actually move forward in time and start talking about the the events that that uh pressage the 13th 14th and 15th amendments um and I'd want our audience you and I of course know this but I want everyone out there um C-SPAN to recognize that this month isn't just it's a very special anniversary it's not just the 225th Anniversary of birthday of I think the year that changes everything the hinge of human history this We the People moment is also the 1050th anniversary to to the month of the first emanci initial Emancipation Proclamation um which is issued on uh uh right immediately after the battle of antium um which is fought September 17th 1862 ex 75 years to the to the day um uh after the Constitution has gone public so we Mark today not just the 220 this month not just the 225th Anniversary of constitution but the the Susa Centennial is I think what they they call it of of the Emancipation Proclamation a document you'll also find um here in this building I'll have a little bit more to say about that at the end so we've been talking about some of our forebears our you know founding fathers I guess some thoughts about our refounding about of Father Abraham about we mentioned Washington maybe bringing Lincoln into the picture too and and your thoughts about this new birth of Freedom that begins with uh the Emancipation you have a family story um your you know your grandfather you write this book my my grandfather son and you mention that his grandmother was a freed slave and so some thoughts about that well you know for us in the South uh Abe Lincoln was a great emancipator uh I know there's revisionism today I'm a big AB Lincoln fan I have a bust of Lincoln I have photos of Lincoln um I am not I you know I have a problem of clothing everything in the sort of cynical revisionism um Abe Lincoln meant quite a bit to us you know you go and you I read his house divided speech and you begin to see what the what the country is it's like the beginning once again it's ripped a suer you've got the the the South uh is one way of life and that again with uh the The Peculiar institution that in my opinion is a great single greatest immorality in the country how can you have a free country with slaves we understood that it's a contradiction it contradicts the very founding premise of the country but at any rate Lincoln for us um and when I grew up was the he was the author of real Liberty uh you had the Emancipation Proclamation you had field order number 15 tell us tell us what that is have to remind me of it issued it that was the actual order that freed the slaves um in the eastern part of Coastal Georgia I think down as far as Florida and of course my family was on an island oaba island and plantations along the coast of Georgia uh for over a hundred years the the our we're from an island again it's just south of Hilton and defus in Carolinas and we are those gilas and geei and the family would remain on that island even after the Civil War uh it was a storm actually a hurricane in the 1890s that drove them uh over toward pinpoint and some of the the the more in uh Mainland um uh areas but the the fascinating thing is the people who came from that not only Main maintain their culture but there was always this desire to be a part of this country and Lincoln was a person the promise of 40 acres and a me Etc and that promise went on for years again it was unfulfilled but there was that promise and it was a promise of Freedom it's a promise of the 40 acres in the mule and so you would hear people talk about the lack of freedom in the same way that they talk about the unfulfilled promise of the 40 acres in a mule but it was field order number 15 that directly affected my four bears and so it has a very special place in my heart and certainly I keep in my office a copy of field order number 15 uh and a copy of the Emancipation Proclamation because I of course have a very particular I keep actually it's mounted on my wall um because of my particular interest and what in it and what it has done for those who came before me we are from a plantation or part of my family is from a plantation south of Savannah my grandfather was raised and that's where we Farm just across from the plantation where his grandmother had land and his great-grandfather bought land uh in the 1870s right after he was freed and we all as my grandfather said we all were going to be raised and in the ways of slavery time and that's the way we were raised on that farm uh very hard life but it is a life uh in a way of life of which I am enormously proud uh the there's not been a moment in my life when I've had nothing but the greatest pride in the people who grew up under the most difficult circumstances with a dignity that's unmatched in this city and any of the great cities in this country it's almost as though it is a nobility of humanity simply because of the dignity with which they bore the the the the negatives that were put in their way and the harshness of life and as I say in my book and I mean it my grandfather still Reigns as the greatest person I know of or I know about and you tell me a person who could have accepted and and uh not have a father uh and lose a mother is as he said handed from Pillar To Post for relatives his grandmother and uncle and bore no education and yet segregation Jim croww and bore no bitterness Who Rose above it and insisted that his grandsons Rise Above It fight it um participate eliminate the wrongs but not be consumed by it or destroyed by it and I don't think you could get much greater than that now you and I are huge Lincoln men do you think at all in the culture that Lincoln still gets his due because we you know in so many ways there's so much talk about the founding fathers and yet you said the house divid speech that house fell in a way because of the contradiction because of slav and and Lincoln's generation rebuilds it Frederick Douglas and others do we give that may be you know that that has a claim to be the greatest Generation too do we today in our law in our culture give enough credit to that um uh refounding you know you think of the Great Moments in our history we talk about of course the revolution the certainly the Constitution what we celebrate now 225 years but it was all coming a Sunday it was coming apart and the country as we know it today is reshaped after the Civil War the Civil War amendments and you teach in the area of uh constitutional law you're an expert what would it look like if there were no 14th Amendment now what would be its application the Bill of Rights to states exactly um so there's a whole there is so much that goes beyond the war you know and I tell my law clerks that's why we have to go to Gettysburg this isn't just about you know we pull these little threads out of what we do every day we talk about textualism and originalism and we argue over that it is much bigger than that you know I see some people here who argue before the court I not once thought that the people who came there did not understand that what we we did was larger than who we are that we were engaged in an Enterprise to preserve something that is truly great do we agree no more than the framers agree no more than Mason and Hamilton agreed but do we say they did not want it to work no no that's the beauty of we the people we the people agree that we should have have a country exactly what it should be we disagree not so to the point that we destroy it but certainly to the point that we think that we're perfecting it and we're still here so no I think that Lincoln saw what was happening with the Civil War he saw that slavery we could not exist half slave and half free that you couldn't do it it was not going to happen he he understood that that you had to have a union and he knew ultimately it could not be a slave country that from allowed slavery now I know you have your revisionist and people quibble and you know I just I don't have time to pick all those lints out that lint out of everything I Lincoln uh uh preserved the union um Frederick Douglas you mentioned I also have a portrait of him behind my desk he's been there I've had that portra since I've went on the court two decades ago a little more than two decades ago I'm a big fan of Frederick Douglas I want you to think of what courage it took for him a freed slave to stand as he stood to cite the Declaration of Independence not something that's foreign to this nation but the founding document of this nation he cited that as exhibit a and what was wrong with slavery exhibit a you didn't need to go to another other any other Shores or any other ideology it was our founding ideology how could you be inherently equal and have slaves how can you be free and enslave another race he understood that so we fought a great War you go to Gettysburg and what does he say it's up to us the living to make it all worthwhile we're the living we're the living we have an opportunity of find out amount of time to make it work so I hear people they just you know the that you disagree with someone well that person's motives must be bad well that's not the case I don't think that that Mason's motives were bad he was not necessarily a cheery fellow you know you could probably say that you know he's a dow man who's always upset about something you know he's too billi for me or something but he contributed Washington Washington did not want to go you know Hamilton you know he was young you know those guys maybe he wanted to make money I don't know but he contributed and so I think that we should sort of look at this more the way that not Waring factions like the Civil War but rather as people who are engaged in this great project as Lincoln as Lincoln sort of left us at Gettysburg we the living MH and we we may be disagreeing as the living but we the living that's one of the things I do like about the court I've been there now through a number of members of the court and in the years I've been there I honestly Come Away thinking that every member really wants to make it work they really every single member and you don't they don't agree with each each other but somehow they agree that this is more important than we are and we've got to make this thing work so yes I'm a Lincoln person I am a Frederick Douglas person I am a Booker T Washington person I grew up loving these people and I will go to my grave I think that I want you to one last point I want you to think of a little black kid in Savannah Georgia and the car Library M and you see pictures of whom the great emancipator Booker T Washington Frederick Douglas web de Boyce George Washington you see what I'm saying you grow up with this as a part of your life this is a part of your fabric this is the underpin and what do you think you bring to the court if that's the way you're raised you bring bring this sense that it's not some ambition it's just obligation to fulfill something that they started it's this calling you have to do what you're supposed to do is it hard sometimes is it disagreeable well sometimes but is it the right thing yes all the time and I'm willing to bet you if we could get Lincoln to come back and we could ask him how hard the Civil War was and how hard being president was whether or not he would say to you it was worth it and I'm willing to bet you he would if you were to ask Washington to come back and ask him whether it was worth leaving family to fight at Valley Forge and the revolution he would say it was worth it to leave Mount Vernon to go to the Constitutional Convention he would say it was worth it to leave to become president he would say it was worth it all the the absentees all the days I think they would say it and I think any of us should be able to say that so no I'm a Lincoln person I am a uh bookert Washington Frederick Douglas um and I keep those around me to remind of what our obligations are yours and mine now the first time I think I heard you you were talking about the Declaration of Independence um which of course Mr Lincoln alludes to right out of the gate uh in the Gettysburg Address four score and seven well that's 1863 minus 87 that's 1776 when you do the math now our fathers again this imagery you know uh and then he quotes from The Declaration um uh uh our fathers brought forth in a new nation conceived in liberty and dedicated to the proposition that all men are created equal that's the language from the Declaration you have often you have thoughts about the Declaration it's it's up there um in the Renda alongside the Gettysburg address and the Emancipation and and the parchment Constitution itself so I just wanted to invite you to as you have talked about Lincoln to to tell us a little bit about how you think about the Declaration and its part in the American story you know you you think it the beginning is that we have these rights we're endowed with certain unalienable rights and we give up some of those rights to be governed by consent that's critical for me when I started though it wasn't so much about the government it was about what was the best argument against slavery it was as simple as that when you grow up under segregation you take the founding document and you use it as the point to make to others who think that segregation is right this is our founding document and we are inherently equals the nuns ingrained in us the declaration and our faith in God we were created equal and they didn't have to go to the the Bible or religious document they went to the founding document that we are created equal that was always this thing you carried that with you when you were treated badly when people Tred to ingra ingrain it and you know I hear people say it affected your self-esteem to be segre it never affected mine and absolutely at no point in my life because from day one we knew we were equal it said so the nun said so my grandfather said so and by Godly the Declaration of Independence said so and it may have taken a war and it may take black codes and slave codes and Jim Crow laws but still no matter how contradictory that was here was this document that said we were equal so it starts there then you look that's what got me started again at EEOC to read this great document to reread it to talk about to talk about the founding I wasn't going to be a judge who knows how I became a judge you know I was at EEOC I was only interested in the best about this country with all its problems the things that made it worth having and the lo and behold you come to the understanding that this founding document and this great experiment is a wonderful thing and that was in the mid 1980s I was chairman of the EOC woring more about budgets and getting in all sorts of trouble over the age discrimination and Employment Act and this hearing and that hearing none of which was of great consequence as far as the the the structure of the country but spending hour after hour learning about the things that you write about so and teach so eloquently um I think that um the for me that Central document is the greatest I think that that one the Declaration of Independence and to then go to Gettysburg and to think about pickets charge to think about the Carnage there the lives loss the the great battles before at Fredericksburg and at the will Wilderness in Chancellor Ville you talk about antium you talk about uh Shiloh and Manasses all these battles for people defending or either what they think a way of life or slavery what have all of it all that Bloodshed to settle this this contradiction and we won we have our country and I like to go to Gettysburg to say to my clerks are we do we deserve this do we deserve this sacrifice for a country that we have and are we living up to that are we doing our part you know just go any place think of the people at Battle of the Bulge or you think of them at um you know during during um any war and just ask yourself you know they've let's assume without debating whether you should have had this battle or this war or that they've done their part have we done ours and the thing that I was told I was going to be a priest that's the only real sort of goal that I had and what's a priest you're called to do something every every ex seminarian is always looking for that next vocation suppose your call now is to do your part to see to to to be able to to earn the right to be here you mention in your book very promptly on the first page and the last page you just mention again god um the Declaration of Independence has a very prominent um several Pro from the very beginning nature and nature is God you know endowed by our creator um at the very end in the most military language U um uh appealing to um uh the Supreme judge of the world um for the rectitude of our intentions and they're not talking about Robert CJ they're they're they're they're um great as he is um um uh U now um thoughts and then you look at the Constitution and the references aren't so prominent um uh Janie Randall um has talked about one of um um my students wrote an interesting paper about the words Sunday is accepted in the Constitution but it's it's not very prominent in in the Preamble or um um in other articles we've just this week heard debates or conversations about God on the coins um whether there were suff efficient references to to God um on 9911 so so thoughts about um the uh the role of of references to God in um our national discourse in our our public culture I think we're kidding ourselves if we don't think it's been prominent and a central part of our formation I me you can argue neoism or atheism now but you I mean we know it's there um so I mean your first amendment is what Congress shall make no war no law respecting the establishment of religion or the free exercise thereof in other words stay out of it and leave people alone when it comes to their religion obviously it assumes there's there's a religion okay and there's God I mean we knew what the religions were the Baptist convention they weren't like U worshiping a Pulpit or something they're God they believe in God so I you I'm not going to revise history to pretend that I grew up in a religious environment and I'm proud of it I was going to be a priest I'm proud of it and I thank God I believed in God or I would probably be enormously angry right now okay so the the I am grateful for my faith and uh Unapologetic about it so now here's one interesting sort of um uh I mean it is pretty remarkable we started talking a little bit about how the we has changed over time we could have also added the 19th Amendment and women becoming part of this ever grating greater Arc of of of democratic inclusion Amendment prohibition which got you know uh Dr to that but but you know when that was repeal but but in general most of the Amendments really have made this is what you said before made the thing I think more perfect um well that made it less perfect I gu but then it got we got rid of it so I don't drink but I understand you know but on religion it is pretty extraordinary um the Constitution frees every um American to be eligible for public office um there's no religious test oath um and that wasn't a prominent feature of the state constitutions a lot of them actually had religious tests well you had actually in New England in particular I mean you had establishment religions so I understand that but I'm just simply saying that the country moved on I grew up at a time when people were respectful of religion and and religious people I grew up when the church was open all the time and nobody broke in and and and that nobody uh uh uh engaged in sacriligious conduct in the church it was just our church it was in the inner city I walked at six o'cl Mass to be the alter boy there and I was a little guy with my us uh government surplus back book bag and I'm scared of dogs more than anything else but the you know I I really like when I grew up I can't transpose that or superimpose it or transpose it to or superimpose it on the current day but I think our country is what it is and there's some of us who but for Faith would not be here there was nothing in front of me to tell me it was okay to keep trying there was nothing nothing in front of me that explained all the wrong the the hurt the pain the the the the things that happened even in this city to me there was nothing that could deal with it and to make you a better person to force you to be a good person when everything around you says you could be like mean and cynical and react and punch back you know so yeah I mean I I know all the smart Alex they know better than I do but they weren't there they weren't in the tenaments they weren't in the heat they weren't they didn't walk in those steps and I thank God for the environment I was in of people who had strong faith the house I was in of people of strong faith uh the schools I went to did we impose it on anyone else no it was ours and uh I certainly in my own daily life I respect other people people I don't abuse them I don't do things to them you respect them and that all comes from the way I was raised and that includes a strong faith and this thought that that I had about um which is I I think we've As Americans today grown into a pretty remarkably respectful um of a faith culture in the following sense We Begin by saying the the system is open to people of many different faiths we're not going to require a belief in the Trinity or you know in any particular so here's what what actually just strikes me at this moment as we sort of Look Back 225 years later just at the at the process that's developed ours remains a kind theirs was a project um uh where most Americans at the founding were mainstream Protestants um mainstream protestantism today sort of remains a huge part of our culture and yet here's what interesting none of the justices I think on the court is a mainstream Protestant neither um you have to ask them I don't speak for him but but neither um John Boehner nor Harry Reed no idea none of the of the of the four presidential candidates um um only spend a lot of time following only but only Barack Obama whose father was a it's know what I'm saying is it's it's an extraordinary openness actually 225 years later I think we talk about it a lot I you know I liked it when I was a kid you didn't talk about it a whole lot you just lived your life that to me we talk a lot about you know this person is that that person's this and then we all pretend that we're all tolerant you know I liked it when people didn't care like that just a you you I was Catholic I mean you you talk about a minority within a minority within a minority I was a black Catholic in Savannah Georgia now that is a what is an insular what is it discreet and ins minority that's us a discreet and insular minority so the I but nobody bothered us I was the only black kid in my Seminary 1965 64 there was another young man he left and so at the next two years I was there by myself in Savannah I nobody bothered me so I hear people say these things about their tolerant but they're really pointing they're really identifying who's what a lot more the um I kind of like the idea that when you started here you and I are here neither one of us is Caucasian and nobody seems to care nobody's pointing it out well we noticed it said oh you look like you're Indian descent oh you look like you're well I don't know what they say people say horrible things about me they said well I'm not black so I'm just uh a little doubtful I should say I'm black you know but the I mean here we are no one really is bringing the point up I think what you should be more concerned about particularly at the court is look where we are we're all from the Ivy Leagues that that seems to be more relevant than what faith people are but even with that even with we can nitpick all that these are good people these are people who I go back to what I said they are continuing what was started 200 years ago with that debate about the great document they're good people I mean I sit next to uh justice Ginsburg now how often do we agree a lot actually we do yeah I mean most I mean no most of many cases are unanimous you you the unanimous cases yes that's given me a lot and a I agree with her in all the unanimous cases you know I like that that's really a screw move well there's one category of cases we agree what are they the unanimous cases but she is a good person she is a fabulous judge I like sitting next to her you know we're friends so but the I think that's what you want you want people who still believe who work together and try to get it right but don't change their mind just because they're there just because it's sort of The Fad you want them to think the same way you had it at the convention in the We the People the ratification debates I I think I would love to I'm going to spend time going back to read them simply because that was a time you talk about people actually saying what they believe M people actually fighting about it people actually caring about it people writing articles about it the Federalist Papers people traveling people having meetings at homes and in their churches oh you can't do that I guess but you having people meeting in their um uh uh in in in town halls all over the country debating this people actually and this is a fascinating thing people who actually read the Constitution I mean that's something that's new people claim to love it today do they actually read it they read it back then and they were not as universally available there was no Internet to read it on but they they somehow printed them and read them and talked about them absolutely and the people who couldn't read had it read to them and formed opinion so I think yes it was a I think it was um a debate about this country its formation how it would develop in what direction the protections and I think it continues it's the same debate so you can talk about the Commerce Clause you could talk about equal protection or due process substantive due process the First Amendment it's all the same debate and it is an appropriate debate and it's one that I would wish wish would sort of try to reach the same high level that we saw in Philadelphia and that we're going to see at other points in the ratification process who writes like the the sort of defenses and arguments that you see in the Federalists today who writes them who sits at home and drafts arguments that you see letters like you see Mason you have a staff drafting these things these are people who were engaged who knew the Constitution and also want you to know these were not Scholars these were not people who had appropriated to themselves license the so license to interpret or to talk about this great document these were farmers these were business people some of them who had formal education some who did not but they cared about this country and it's I think you still have it today today and you know I I think that uh again I go back to your book you talk about the written and the unwritten Constitution well the unwritten Constitution is really what we do it's that sort of trying to bring to apply it to current events and problems and cases and develop it and that debate continues on each one of those and that's why you see the court take different points of view that's why the arguments are so important that's why your scholarship is so important and you know one thing I like about the tone of your book is the it's so positive it's refreshing you know it's not I have all the answers but here are some answers let's talk about it it isn't up here you know I tell my clerks when we work on opinions you got to explain this take your parents they're immigrants they're they're bright people but I don't think they're doctors not lawyers exactly they it's their constitution too right and we should explain it and get in a way and interpret it in a way to make it accessible to them right and that's what I think you're trying to do with your book to make it accessible to open it up so here's maybe one concluding um note um uh when you be talking a lot about the past last 225 years this sort of Arc of ever great inclusion didn't talk as much as we might have about woman suffrage but that of course is a a huge I mean revolutionary um um um uh moment of of additional inclusion these these amendments that prohibition uh aside generally tend to expand Liberty and equality which is pretty striking that that in general the Amendments do that and they don't take us back um uh now here's the the the the thought experiment because one understanding of an Unwritten Constitution might be the Constitution still to be written The Unfinished Constitution what we're not done history isn't over um what amendments are imaginable over the next 225 years if we look back I hope you don't expect me to hang around well just thinking about you know if if we cuz you and I spent a lot of our time thinking about 225 years ago 150 years ago 75 years ago um if we turn that camera around and try to think forward 75 years from now 150 years from now 225 years from any thoughts at all these issues aren't going to come up before the court immediately but just on so you know just thoughts on the Democratic project in America or the world you know going forward you know I I'm not that creative or that preed um you know I do think I I wonder when people look back as we're looking back now will they say we added something um will they look at what we've written and understand that um we actually thought about things or we were just trying to score a point here or there I would hope that we can say that we've made uh or at least they can say we've made a positive contribution as positive as you and I think of the those who were at the convention those who participated in the debate um they added something um you know when we do opinions I I don't like to get into this back back and forth with my colleagues and quibble with them um I like at the end of it to say this is what I think we should be looking at or the approach that we should be taking and that doesn't mean everybody should agree with me or they should uh change their minds I just think that what you're trying to do is think it through and tell them exactly what you think without rankor without um personal attacks at HMS there's enough of that um but just to try to add something so I think that we are obligated you and me yes if we talk about this great document we're obligated to try to improve it yes we're obligated to disagree but in a way that's constructive in a way that adds something in a way that is worthy of the Constitution we think it's a document up here and I think we are obligated you have kids you teach them that they talk about things in a certain way and to each other in a certain way to their parents in a certain way to your parents in a respectful way this is a great document and and you know I don't I don't deny the flaws I really don't I've lived the flaws I've lived the contradictions I say it in spite of that that it is to us to do the posit it's you and I the living it's up that's what Lincoln is you and I we're talking about it I have a job I start again uh this month to go back to that job to that we're called to do you and I have an obligation to do it in a positive way that add something and what I don't want is someone to say well you know he was there but he was cynical or negative and didn't think it through uh I remember notice I didn't say I want them to say I agree with you I couldn't care less that's not my point the point is do you think it through and communicate it in a way that adds to this development that you're talking about think about Harland think about harlon and Pie the first Justice John Marshall Harland Harlen the great denter in Pie versus Ferguson do we quote from the majority opinion or the descent exactly it's The Descent that won the day 60 years later it was The Descent so you write it in a way that contributes did you think when he was the Lone descent alone in descent that do you think soul denter and as I understand as I if my recollection serves me the sole Southerner on the court from Kentucky yeah which is kind of interesting but these are little tidbits that as as I think sometimes as my wife says that I get too caught up in all these little things because you read these cases over and over and over and just the eloquence of it that you know that to think of what he said that you know we have all our biases and people and and and but this document this is what he says this document knows no Cass and knows no color this document it's color blind well he didn't quite say say that he said it knows no cover yes knows and I truly believe that he added something and at that time he was alone that people thought that they could deal with us in a constitutional way based on our skin color I've lived that that's a contradiction what do you think we held on to the majority opinion or those words from Justice Harley it is my understanding that that descent was what uh justice Thurgood Marshall read when he was despondent and thought that he was having great difficulties in doing the right thing across this country he would read that to sin but we both read it at different points he a great man and me a little kid an aspirant a giant and a kid merely trying to get out of there and you now sit in the seat the third Good Marshall I sit in a chair I think he occupied his own seat um the thing that you know I had spent time with him and I'd like to just say a word people do a lot of talking on behalf of other people I sat with him in a meeting when I first got to the court Marsh a courtesy visit that was supposed to last 10 minutes and lasted 2 and a half hours and he reged me with stories um and I said to him I wish that if ID had the courage in the age that I could have traveled with him across the South but I doubt I would have had the courage that he had to do that and he looked at me very quietly said I had to do in my time what I had to do you have to do in your time what you have to do that was all the guidance and perhaps when we talk about this great document it sums up the founders it sums up those at the convention they had to do in their time what they had to do and they did it and we have to do in our time what we have to do will we do it so um with that let me add one additional thought and and then maybe bring our proceedings to a close um this conversation um I think has been in in the spirit that your calling for um our um sponsoring institutions the Federalist society and the Constitution accountability Center they don't always agree on everything but I think they both do agree on the idea of of serious conversation um centered on on this document um uh since I mentioned amendments I and I'm not going to make too many predictions but I will say that most of the Amendments um as a as a practical matter had to have the support of both parties because it's hard to get two3 2/3 three quarters without both parties being on board the great amendments of the 1960s for example the great iconic statutes of the 1960s the Civil Rights Act of 64 the Voting Rights Act of 65 the um Fair Housing Act of of 68 Republicans and Democrats in this spirit that you calling for and and I have one other thought since we're talking about our um our sponsoring institutions for this really extraordinary conversation um and that's the the National Archives I I think that the framers of the Constitution who were amending their regime studied what had gone before they studied the state constitution See Saw which ones worked and didn't they Massachusetts put its Constitution to a vote so let's put our constitution to a vote um most of the Constitutions have three branches of government let's go with that most of them have bicameralism let's go with that um an independent executive works well for Massachusetts and New York let build on on that and so on the abolition of slavery and and the Amendments many of the Bill of Rights George Mason you mentioned he first gives us Virginia's Bill of Rights and that's a model for the federal Bill of Rights abolition of slavery occurred in various States and then at a federal level so so um we have to study you know and making amends what has gone before us we have this duty to the future but I think we discharge it best when we actually are understanding of respectful of the past and that's part of what this National Archives is about and if I could just um uh on a personal note tell you the story of why I'm here are you see I mean Justice Thomas's uh presence needs no um explanation he's he's Justice Thomas but what the heck am I doing here well um uh when I was 11 years old I came to the National Archives um and I got this document it's a big big version of the Emancipation Proclamation um and um it was uh an an addition of the Emancipation Proclamation you can take a look on the the 100th anniversary of the Emancipation 50 years ago was uh September 1962 and and uh and the archives um uh released that um uh um special edition for for kids like me and I got my picture of Abe Lincoln because I'm a I'm a Lincoln man too you don't throw anything out I don't I me so um and um and I came and that's what made me not cynical coming at a very young age to a place like this being exposed to Mr Lincoln and what he did um for the union being exposed to the Declaration of Independence the Constitution um and I think I'm here today honestly because of that and and so I would like to give special thanks for this National Treasure the National Archives I I want to thank all of you for coming to this um extraordinary conversation I want to encourage those in the on the television audience to come to this place if you can bring your kids bring your grandkids and your grand nephew bring the Next Generation here and and if you can't come here physically experience the National Archives online you mentioned the internet um because I think and if it is up to us the living we we can't just think about the future without thinking very deeply about the past and I think this is a place that will help us do that thinking and and so I I ask all of you to join me in thanking Justice Thomas and thanking the archives thank you thank you ladies ladies and gentlemen ladies and [Applause] gentlemen ladies and gentlemen we ask that you please remain in the theater until we've gotten word that Justice Thomas has left the building thank you what okay

Channel: ConstitutionChannel

Views: 38,834

Keywords: Constitution, progressive, Clarence Thomas, Akhil Amar, Doug Kendall, CAC, Founding Fathers, liberal, conservative, Republican, Democrat, constitutional conservative, constitutional progressive, tea party, amendments, voting rights, progress, Supreme Court, justice, courts, judicial activism, new textualism, originalism, John Roberts, Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Constitution Day, Federalist Society

Id: QL2TfB1hTrk

Length: 80min 44sec (4844 seconds)

Published: Tue Sep 18 2012