Landmark Cases: Season Two Debuts at the National Constitution Center (HD)

[Applause] ladies and gentlemen welcome to the National Constitution Center I am Jeffrey Rosen the president of this wonderful institution which is the only institution in America chartered by Congress to disseminate information about the US Constitution on a nonpartisan basis beautiful that is so inspiring wonderful live c-span audience you can see that the great members of the National Constitution Center like people around the country are inspired by this nonpartisan mission of constitutional education and believe it is crucially important for citizens to educate themselves about the Constitution so American democracy can thrive and survive and in this educational mission we are so excited to be partners with c-span we had a wonderful collaboration a few years ago landmark cases which described the human stories behind some of the most important Supreme Court cases of all times that series was inspired by a comment that Justice Ruth Bader Ginsburg made at a National Constitution Center event a few years ago where she said how inspiring it would be to hear those human stories so people can relate to the cases and understand the constitutional principles behind them and that series was such a success that literally by popular demand we are launching tonight landmark hasten season 2 and we have pray and we have a series of new cases and we are going to talk about the human stories and to describe them we have a dream team of respondents and I'm going to introduce them in a second but first I have to put in a plug for upcoming Constitution Center events last week we had this wonderful event with Justice Ginsburg she came back and talked about gender equality in the future of the Constitution we have coming up the following events as part of our America's town-hall program of which this program is one coming up later this a month we have a Dean Heather gherkin from Yale Law School how the right and left can unite around federalism then on March 15th Joseph Ellis and Jon Meacham will come to discuss renewing the founders promise and then on March 20th I'm so excited this just arrived in the mail on Saturday the hard copies of this thrilling new book about an underappreciated constitutional hero William Howard Taft judge Doug Ginsberg will come to interview me about our most judicial president and presidential chief justice and a man who lost 75 pounds on a paleo diet after he law he left his unwanted presidency so those are the exciting events coming up and now it is my great pleasure to introduce my colleague friend collaborator the visionary head of c-span Susan Swain note to self never follow Jeff Rossen at the podium well happy Presidents Day we're gonna talk about the Supreme Court tonight on Presidents Day but really could be more fitting than one of the most important responsibilities that presidents have during their term in office to select judicial appointees to the Supreme Court so it's really very appropriate for this very special day I want to echo Jeff Rosen's comments about our great working relationship as long as there's been a National Constitution Center it's educational and nonpartisan mission so much mirrors c-span's nearly 40 year old an educational nonpartisan a public affairs charter and so it was a wonderful collaboration in fact during the 2016 conventions we set up our studio here and have that beautiful view of Independence Hall I'm a native Philadelphian by the way so it's so nice to be home as Jeff Rosen said they were kind enough to invite my colleagues and a few of us to the National Constitution Center Board dinner in Washington a few years ago and the story that Ruth Bader Ginsburg told was of Loving v Virginia and how compelling it was to think about Mildred Loving and her husband in their bedroom and the police breaking in because interracial marriage was outlawed in the state of Virginia that poignant human story just resonated with us and we came back to our office and said why don't we take on the cases that have dramatic human stories so working with the folks at the Constitution Center and their great scholarship here we collaborated with a really advised us on our first set of cases and it's hard to know when c-span road when we have a hit frankly because we don't have any ratings but we had a lot of good feedback as did NCC and the programs are interactive and so we had a lot of people phoning in and also sending us tweets and Facebook messages and we liked it that was the best part of it because it is what could be better when you have a job where you're learning something you work with great people and you're getting a lot of positive feedback and that hit on all of those buttons so when the election was over and we were looking around for another historical project to do this was just a natural for us so once again we have chosen 12 cases and we are starting all the way back in 1819 with McCulloch versus Maryland and we're going to end up with 1978 and the Bakke case and I know if you all remember that we're gonna learn a little bit more but that was when Allen baki challenged affirmative action in the state of California and we chose cases that are not just historically interesting but also relevant to our lives today so you're going to be looking at cases that deal with wireless warrant tapping and with civil rights and with free speech issues that we the right to privacy things that we are still all talking about in debating in our society today so you'll learn a bit of 200 years of American judicial history but you'll also think about how these cases continue to impact our society today just want to say a real quick note about my colleagues because this is a lot of work for us and we're busy covering this Congress who's been keeping us quite active over the past year and a few of us have taken this on as a bit of a labor of love pardon the glasses for a little bit here but my colleagues are here and could excuse me could you just wave your hands so people see who you are mark Farkas is our executive producer for special projects Ben O'Connell is going to be producing this series for us as a senior producer Nate Hirst is next to him and he's going to be working with us on a week-to-week basis to line up all the guests in the video we have two folks who are at home in Washington Randy Rohrabacher is one of our field crew people and we are sending him out and this goes to the people stories he's going on location to the personal stories the hometowns of where these cases took place and getting video for example visiting Chinatown for you quo and going to Des Moines for tinkerer versus Des Moines school districts so you'll see the places where these cases actually took place and then finally if that was Sara who's going to be our production assistant and we also have a big technical crew thanks to all of you I'm not going to name all of your names okay so the series starts next Monday night at 9 p.m. Eastern Time it will be live for 90 minutes and we will go for 12 weeks each case gets its own program so we're hoping so much to have you in our audience phone in with questions or send us a Facebook comment and make it interactive because just as tonight your questions really make the discussion so thanks for helping us kick it off tonight thank you for your enthusiasm in being here and I'm going to turn it over to Jeff Rossen thank you thank you so much Susan Susan is a masterful moderator and it's such a pleasure to learn with her about these incredible cases all right ladies and gentlemen you are in for a treat I hope this will be a concentrated constitutional feast an hour or so where we have two of America's leading experts on the Constitution from different perspectives to help take us through these cases to learn together and to spread the light Akhil amar is America's teacher of the Constitution he was my teacher of the Constitution he was my first teacher in law school and he has spread his wisdom and knowledge to me and to thousands and hundreds of thousands of others versus by means of wonderful technologies he's the author of many books including the Constitution today timeless lessons for the issues of our era he is sterling professor of law and political science at Yale and he is the America's leading exponent of constitutional methodology that some have called the new textualism or originalism for liberals that argues that the text and history of the Constitution honestly interpreted should lead to results of different political valances and joining him in this incredible discussion is Michael Stokes Paulson he's a distinguished University chair and professor of law at the University of st. Thomas author of numerous books including the constitution and introduction which I have here which Justice Samuel Alito called solid reliable interesting informative and a lively tour of the Constitution and he approaches things according to Justice Alito from a more Hamiltonian an originalist perspective from a more conservative point of view and I just learned in the green room that Akhil and Mike were Law School roommates and what do you imagine that these two brilliant scholars of the Constitution did in law school well I not wasn't surprised to learn they debated the Constitution so heatedly that they would follow each other into the communal restrooms when they were brushing their teeth and Mike would argue that Akhil was a wild-eyed living constitutionalist and Akhil called Mike a rigid originalist and I don't I hope your teeth got brushed but I'm sure that debate was absolutely fascinating and we are gonna continue it tonight okay let us jump right in because we have no we have to use every moment of this precious time to learn together and we're going to begin with McCulloch and Maryland 1819 I need my constitutional reading glasses and I think we need the text of article 1 if someone there mint there may be a clicker oh here it is and I haven't tried it but let's see if it works okay wonderful the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States it's 1816 the second back of the u.s. is created here in Philadelphia there are branches and a bunches of cities including Baltimore in 1818 the Maryland legislature passes a bill taxing out-of-state banks and the question is does Congress have the authority to establish the bank did Maryland law unconstitutionally interfere with congressional powers Chief Justice Marshalls totemic Lee important opinion for the court has many memorable lines including that the power to tax involves the power to destroy and he also says that unlike the Articles of Confederation the Tenth Amendment to the Constitution doesn't include the word expressly and this is evidence that the Constitution doesn't limit Congress to doing only those things specifically listed in article 1 Akhil you called McCullough the most central case in our constitutional Canon and use have said I teach my students McCulloch and Maryland before Marbury vs. Madison precisely because I think McCullough is a better exemplar of legal craft why is McCullough so important and what do you want our audience to know about it so constitutional law isn't just about what the rules are what Congress can do what Congress can't do what the president can and can't do the what questions are important but even more important probably is to how question how do you do constitutional law how do you make a constitutional argument what counts only judicial precedent what about text what about the history the original intent of the Constitution what about the structure of the Constitution as a whole and McCulloch is a beautiful example of all the different tools and techniques of proper constitutional analysis holistic constitutional analysis being brought to bear so if I want to teach my students more than anything else how to do Constitution law how to make arguments McCulloch is a great place to start Wow Mike you also have had high praise for McCullough and in this book the Constitution in introduction you say that it has relevance for the court's decision to uphold the Affordable Care Act tell us about how its come to stand for a broad interpretation of national power which has prevailed although Jackson's veto stands for the proposition that the separate branches have the power to interpret the Constitution on their own well you wouldn't think that a case about a taxing of a bank would be such exciting more but it really is this is a controversy that goes to the root of how broad the national governments powers are to legislate for the country and it goes back to Hamilton versus Jefferson I think I've seen this debate between Hamilton and Jefferson recreated in the musical Hamilton right I won't do any rap here do it but john marshall in upholding the constitutionality of the bank of the united states basically plagiarizes arguments at Alexander Hamilton made to George Washington to convince him that the powers granted to Congress should be construed basically for all they're worth right that the idea of the Necessary and Proper Clause means not that there are powers beyond the Constitution but that the Constitution grants Congress a broad sphere of sphere of powers the power to create a National Bank isn't one of the specifically enumerated powers but their powers to regulate commerce to regulate commercial affairs to regulate banking bankruptcy and so the creation of a Bank of the United States was necessary and proper for carrying into execution the other broad grants of powers and that really keels right that really is foundational to nearly everything that Congress has done now many people think Congress has gone too far but all of today's controversies in terms of help grow on Congress's powers are really go back to the precedent of McCulloch versus Maryland there's another aspect of the case to which is the one where you hear this line the power to tax is the power to destroy the state was taxing the operations of the Bank of the United States if the bank a federal instrumentality is constitutional then a state can't interfere with it under the national under the Supremacy Clause of the Constitution national law beats inconsistent state law and I think McCulloch is a wonderful case it's foundational for not only the how broad Congress's powers are but the relationship between the states and national government in fact you can see the roots of lincoln's argument against secession in the argument why it is unconstitutional for the states to interfere with the operations of the nation well I'm so tempted to take another round on this I just want to make sure we get through all twelve cases but luck with that yeah I'm gonna resist I'm gonna resist temptation and we'll leave time for questions or whether we can come back if we need to okay it's time for another amendment and a really important case and this is a big one ladies and gentlemen the 14th amendment to the Constitution turns 150 this July it is the cornerstone of the constitutional achievement of the Civil War after Lincoln promised a new birth of freedom at Gettysburg it says let's read it and think about each of these clauses no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States that's the privileges or immunities Clause nor shall any state deprive any person of life liberty or property without due process of law that's the Due Process Clause nor deny any person within its jurisdiction the equal protection of the laws that's the equal protection clause and the case we're talking about now is the civil rights cases 1883 the Civil War is over it's time for reconstruction and the centerpiece of the achievement of reconstruction is the Civil Rights Act of 1875 Charles Sumner the author of the bill is so committed to this bill which would forbid discrimination in places of public accommodation that on his deathbed he says my bill my bill don't let that forget my bill and then he expires and bill passes and yet just a few years later in 1883 the Supreme Court strikes it down and holds it unconstitutionally exceeds Congress's authority under the 14th amendment there's an amazing human story in this case that I'm sure will tell in the series but Justice John Marshall Harlan who writes the famous dissent has writer's block he doesn't know what to say although he's so upset by this evisceration of the 14th amendment his wife finds at the Supreme Court the silver inkwell where Chief Justice Roger Thani wrote the Dred Scott decision infamously saying that African Americans had no rights which white people were bound to respect the very case that the amendment in part was designed to repudiate she puts the inkwell on Harlan's desk they come home from church he finds the inkwell realizes that it's Tawny's and suddenly as if overcome by spirit he writes this spectacular dissent predicts that someday the decision will be viewed in infamy that's the civil rights case Akhil there's so much to say about this but I want the audience to understand the legal stakes on what grounds did the majority hold that Congress lacked the power to pass the Civil Rights Act of 1875 and what was the grounds for Harlan's dissent so start with Harlan's dissent what a name John Marshall Harlan back to John Marshall and I think the dissent better challenge that channeled John Marshall because what did John Marshall say in McCulloch well as Mike told you Congress should have broad power the Constitution doesn't say bank doesn't say airforce doesn't say individual mandate but Congress should have broad power when actually implementing the great purposes for which the Constitution was established at the founding what's that purpose national security above all and a bank is useful for national security to a banks are very helpful to win wars and Marshall mentions that in McCulloch now after the Civil War the federal government is basically given a new competence and a new focus civil rights the Thirteenth Amendment and slavery and the second Clause says Congress Lab power and the language uses two Petipa Congress all power to pass appropriate legislation the word appropriate is actually taken from McCulloch versus Maryland so the framers of the Thirteenth Amendment ending slavery want Congress have broad power to end slavery the framers of the Fourteenth Amendment have this language but they also have language at the end of the 14th amendment saying Congress how broad McCulloch power so John Marshall Harlan says what was the basic problem that generated the Reconstruction Amendments it was racism in America and Congress has broad power to try to end racism um this sentence that you we have up on screen says no state shall but right before that sentence is one more that's actually pretty important all persons born or naturalized in the United States it's subject to the jurisdiction thereof our citizens of the United States and of the state were and they reside anyone born in the United States is born a citizen born an equal citizen or all born equal were all created equal that's linked to this idea at Gettysburg channeling Jefferson and if we're all born equal and Congress has power to enforce this Harlan says Congress should be able to prohibit race discrimination in public accommodations hotels theaters all the rest so Harlan says let's read congressional power broadly in the spirit of John Marshall and McCulloch reading an amendment that actually borrowed language from McCulloch the word appropriate what is the majority say in response G public accommodations these are owned by private persons hotels theaters in railroads they're not the government it says no state shall and and you Congress doesn't have broad power to regulate and non-state actors but remember Harlan says oh the fourteenth amendment doesn't just say no state shell says everyone's born a citizen that sentence doesn't say no State shall John Marshall told us to construe federal power broadly but the court eight-to-one rejects that and that's why in my lifetime in the lifetime of some of you Congress in effect needed to repass Sumner's bill the Civil Rights Act of 1875 basically becomes the Civil Rights Act of 1964 that Lyndon Johnson helps push through in honor of Martin King and John the martyr John martyr John Kennedy and this time the Supreme Court upholds it in the 1960s Mike Akhil just described so well how the citizenship Clause of the Fourteenth Amendment doesn't have a state action requirement but Harlan also said that theaters and public accommodations are essentially have the nature of quasi public entities even though they're privately owned so do conservatives believe that the majority was right or Harlan right in the civil rights cases well I don't know that I can speak for all conservatives here because I actually think that the civil rights cases were wrongly decided I'm actually with a kilo on that result I have a more Hamiltonian view of the scope of enumerated powers here's the argument that is it usually raised and Nikhil captured this I think pretty well is that the Fourteenth Amendment is a restriction what state governments can do ok the Thirteenth Amendment prohibited slavery and could reach private conduct and one of the arguments for sustaining the civil rights case of the youth and discrimination laws was that it was enforcing the prohibition on slavery and I think the Supreme Court rightly said well that is going beyond prohibiting slip that prohibiting the discrimination is something different from slavery and the power to outlaw slavery and to enforce the ban and slavery doesn't get you all the way I think the argument that ends motels railroads were public accommodations and therefore part of the government is wrong you know and I think that most the the civil rights cases is actually correctly the origin of the idea that the Fourteenth Amendment is a restriction and what state governments can do and there has to be something that really is attributable to the actions of the state here's where I end up just disagreeing with the result of the Supreme Court Congress has the power to to pass laws enforcing the prohibition on States denying equal protection there's a sense in which the state's failure to protect equal rights is an affirmative ground on which Congress could prohibit the failure Congress could step in and remedy it could pick up where the states have dropped off and I think that's the most persuasive reason for thinking the majority opinion in the civil rights cases is actually wrong I like a keels point that basically the Civil Rights Act of 1964 is a Civil Rights Act of 1875 revisited or reloaded as it were and it's interesting that the power on which the Civil Rights Act of 1964 was sustained was the commerce power that it was necessary and proper to carry into effect the commerce power which is an argument they rejected it works and could not have been plausible in 1883 it's interesting that the enforcement of civil rights ultimately real it rests on the power of Congress to regulate private commercial conduct and not the power to enforce equal protection of the laws quite an irony it is indeed an irony and thank you for relating the Commerce Clause of article 1 which we read to the 14th amendment all right our next case is a equal and Hopkins 1886 this is a mere three years after the civil rights cases generally this is not a period in which the cause of racial equality has many victories before the Supreme Court but yo is an exception it strikes down laws aimed at closing opera laundries that are owned by Chinese Americans and Chinese immigrants in San Francisco it was the first case to use the Equal Protection Clause of the 14th amendment it's a unanimous decision and it's a case where there's lots of migration by Chinese people to the US during the gold rush the city of San Francisco wants to close down laundries and passes this law which gives a board total discretion over who gets a permit to issue laundries and although workers of Chinese descent have 89 percent of the laundries they don't get a single permit and the Supreme Court says that this is an unequal enforcement of the law which violates the Equal Protection Clause despite the laws impartial wording and the famous words from you Kuo are if the law is applied and administered by public authorities with an evil eye and an unequal hand so it's practically to make unjust and illegal discriminations between people persons and similar circumstances the denial of equal justice is still within the probe of the Constitution that killed the significance of yick wall and how on earth did the people at the side of equality win during this period when it had so few victories one thing I'd like everyone to notice was this we have this language up on the screen is privileges and immunities are protections for citizens what our basic privileges amuse things that are really fundamental and important I would say free speech free press free exercise of religion stuff in the Bill of Rights but if it's stuff in the Bill of Rights you might say professor wouldn't that include due process well yeah would well then why do they say due process well here's why because if you look carefully due process protects not just citizens but persons that would be aliens President Trump I mean just you know the center is supposed to be nonpartisan I don't know if I have to do you know that's why we have rather Paul so again but but this was an amendment not just about protecting citizens rights but protecting aliens rights that's why the word person appears there and and in San Francisco some of the folks who were affected were actually not US citizens they happen to be immigrants from China and this and we today think what a violation of equal protection is is where the law itself says whites are treated differently from from blacks or men from women we read it as if it says you know you're entitled to the protection of equal laws and and that's key but actually when you read it karen says the equal protection of the laws and in part it's about whatever laws do exist have to be enforced in an even-handed way and this law wasn't on its face it didn't say anything about race but in the application the government was treating people with yellow skin different than people with white skin people of Chinese ancestry different from other types and that's this language of evil eye and unequal hand they were being denied we the equal protection of law because it was an even-handed law on its face but it was being applied in a completely uneven unequal way like any dispute about the correctness of you quo which was unanimous and what is the significance today of this holding that even a formally neutral law may be unconstitutional if it's infected by a discriminatory intent no disagreement at all this is a case oddly about architecture the San Francisco ordinance prohibited or required a special license if you operated like a laundry in a wooden building right in a wooden building the problem was in San Francisco at the time before the turn of the century almost all the buildings were wooden and the overwhelming number of Chinese operated laundries were in wooden buildings and then the law itself as a keel pointed out in Jeff pointed out was neutral on its face but the problem was that it was enforced in a blatantly discriminatory manner that basically only one Chinese Laundry out of hundreds was granted permission to continue to operate and yet defied the law was fine $10 refused to pay the fine and then had to he was actually I believe imprisoned and he brought a writ of habeas corpus which is how it got up to the Supreme Court I love the principle that a law can be neutral on its face but if it's discriminatorily enforced that can render an otherwise seemingly valid law unconstitutional it's now time ladies and gentlemen for Plessy versus Ferguson 1896 who has heard of Plessy vs. Ferguson right so we know this infamous decision which upheld a law which required separate but equal supposedly railroad cars and if the civil rights cases were marked represented the end of the high point of reconstruction Plessy versus Ferguson issues in the Jim Crow era when southern states and others really begin to mandate a kind of American apartheid and the case is so important because it was overturned in Brown versus Board of Education where Thurgood Marshall read Justice John Marshall Harlan dissenting opinion and Plessy for inspiration before he argued Plessy versus Ferguson and John Marshall harland's dissenting opinion has come to be celebrated as one of the greatest pression prophetic statements of Liberty in and equality in constitutional history I'm going to read from it because it is jarring at the beginning Harlan begins by making what would strike us as nativist comments about chinese-american suggesting that he shared some of the anti-immigrant bias and then he goes on to say something about white people he says the white race deems itself to be the dominant race in this country so it is in terms of prestige and achievements in education and wealth and power so I doubt not it will continue to be for all time if it remains true to its great heritage and holds fast to its principles of constitutional Liberty a rather jarring beginning but then he goes on to say but in view of the Constitution in the eye of the law there is in this country no superior dominant ruling class of citizens there is no caste here ca ste and here are the famous words our Constitution is colorblind and neither knows nor tolerates classes among citizens in respect of civil rights all citizens are equal before the law Wow okay Akhil help us unpacked this jarring combination of nativism and white pride with a declaration of equal equality when it comes to civil rights but not apparently political and social rights let's connect dots all citizens are equal before the law what language is he channeling actually not equal protection which is about persons but the missing sentence here that everyone born in America is born a citizen and therefore an equal citizen so that first sentence which overruled Dred Scott is what he's channeling what's his name John Marshall Harlan he's channeling in a way of course John Marshall because remember he thought that the civil rights cases of 1883 were wrongly decided he was the great dissenter he thought Congress could prohibit race discrimination in railroads if the Supreme Court had upheld that law Plessy would be a simple preemption case just as Mike told you before when the federal government says one thing states can't do the other thing if the federal revenue AIT's a bank states can't destroy it well if the federal government says no race discrimination in railroads this was a state law that was undermining that so if Harley had simply been followed in the civil rights cases of 1883 the Congressional law would have been in place this is nice and easy Congress as in effect said already said no race discrimination in a railroad but you see he lost in the civil rights cases of 1883 so but he was channeling John Marshall saying Congress should be allowed to prohibit this and who is he anticipating Thurgood Marshall as she said who who reads Plessy versus Ferguson and his great dissent which in effect becomes the law in Brown versus Board of Education and and I think it's maybe even in this case where he is does use the inkwell that that Roger thar need used in turistica here's what he says and it's amazing it's like the equivalent of Babe Ruth's called shot remembers eight one he's alone in dissent and he says I predict that this case will come to be seen as another Dred Scott think about the audacity of someone alone in dissent to say it and to have been proved right by history because we do think I think today that his dissent is is really the right approach but if you with him in Plessy and I hope you all are and I think we should be with him as Mike and I are in the civil rights cases of 1883 and today's Supreme Court cites the civil rights cases with 1883 with strong approval and I think shame on them Mike I want our audience to understand what justice Browns majority opinion that was his name just a friend justice if the resonances are deep and justice Brown said if anyone objects to separate but equal that's just the fault of african-americans it's nothing inherent in the segregation itself and what was the power of justice Harlan's response that everyone knows what the real purpose of segregation was namely to degrade and humiliate African Americans I'm not I'm just going to ask you was Harlan clearly right are there still some conservatives or originalist who think that on originalist grounds the majority was right no Harlan was clearly right and Plessy is one of the most clearly wrong cases ever decided by the Supreme Court and it is instructive that it's 8 to 1 and that it's possible for a Supreme Court decision to have enormous public support an enormous majority support of the justices and still be a flagrantly miss bacon understanding of the Constitution I think one of the lessons of Plessy versus Ferguson this is 1896 right civil war ends in 1865 and during the Reconstruction period the early interpretations of the 14th amendment are that the law must be the same for the black and for the white I think that line comes from a case called strauder versus West Virginia that there can be no separation distinction discrimination between the races as a matter of law what's instructive is that by the 1890s that idea is lost to the Supreme Court and here I might provoke and an angry response from Akhil because the Supreme Court feels that the meaning of the words of the Constitution must change with the social mores at the time now that's a very appealing notion but look how the social mores changed and much of the reasoning of justice Browns opinion and Plessy vs. Ferguson is that we must read the Constitution to be socially reasonable and in tune with the times and the tune of the times had become segregationist it takes Brown versus Board of Education what 70 some years later to overrule that precedent on the basis of the fact that we know we all know that the law shouldn't be the same for everyone I think the lesson of Brown versus Board of Education the ultimate lesson is the same as the good line in justice Harlan's dissent which is that our Constitution is colorblind anytime that the government categorizes distinguishes or separates on the basis of race that should be regarded as presumptively unconstitutional I think that was the original meaning if you're a good original meaning conservative you want to adhere to what the Civil War era and Reconstruction Congress actually adopted and that was intended to be a flat prohibition on racial discrimination of any sort great well we will return to that important principle when we get to the Bakke case in just a bit but we now in our thrilling tour of the Constitution are gonna fast forward to 1965 and to Griswold versus Connecticut gosh this is just a greatest hits tour of the Constitution and it is so exciting to be able to introduce you ladies and gentlemen to this crucial case involving the right to privacy the case that became the foundation for Roe versus Wade so it's the late 1960s and Connecticut is the only state in the nation that still bans the use of contraceptives for married couples you can learn about the human stories behind this case in David Garrow superb book about the right to privacy where he describes interplays between PT Barnum and Katharine Hepburn's mother and Estelle Griswold who is the executive director of Planned Parenthood in Connecticut will learn all about those on the episode but the constitutional question is does the Constitution protect a right of marital privacy against state restrictions on a couple's ability to be counseled okay you can teach a whole constitutional law case about Griswold but there are at least three basic arguments for striking down the law Justice William O Douglas has a very freewheeling opinion for the majority that's famous for its invocation of penumbra's form by emanations from the various different parts of the Constitution which he says coalesce into a free-floating right to privacy I heard a little chuckle in the audience and there was a chuckle among the law clerks as well when they first read Douglass's draft because it seems so loosey goosey and justice Hugo black said the right of married couples to associate in bed is new to me basically he thought that Douglass was being too freewheeling and conflating various parts of privacy in the first sentence the second third and fourth all the various amendments the fifth amendments and creating a free-floating right of privacy Justice John Marshall Harlan the second we're hearing a lot of John Marshall Harlan here has a narrower opinion grandson of the first grandson of the first and a great Burkean conservative says that there's a right of spatial privacy in the home perhaps rooted in the Fourth Amendment and it might be really intrusive to enforce these marital privacy laws you'd have to break into the home in ways that might violate the spirit of the Fourth Amendment and then there's also suggestion and just as Harlan's opinion that this law is so unusual it's the only one of its kind in the country that the history and traditions of the country have evolved in a way that has recognized marital privacy as a right under the Due Process Clause of the Fourteenth Amendment so that's my quick summary Akhil you'll do much better unpack the various reasons and tell us which if any you find most persuasive or if you have a different approach to the case so you mentioned this word evolve and them's fightin words some folks insist that actually we that the Constitution doesn't quite evolve John Marshall some people say when he said we must never forget is as a constitution we are expounding some people say oh he's he's talking about how it evolved John Marshall didn't believe in evolution Darwin hasn't written the origin of the species or than the voyage of the Beagle in 1819 John Marshall believe that that animals entered the ark two by two so he's not an evolutionist and and Mike says we shouldn't be I'm halfway in between here's the thought if the Constitution prohibits something if there's a write in the Constitution then we have to we should stick by that it says equal we should always do equal even if social mores change by the time of Plessy it says equal and gosh darn it segregation isn't equal but the Constitution also says so I don't think we should ever evolve away from core rights but the Constitution in the ninth amendment when it comes to the federal government in the privileges or immunities Clause when it comes to the Fourteenth Amendment gestures toward on enumerated rights there may be more rights than are specifically mentioned never less but more and then the question is how do you find those extra ones there's additional ones equal means equal and ain't equal so the the segregation wasn't equal so it's invalidate but if there are more rights how do we find them and here John Marshall Harlan the younger the grandson did have an idea we could look at state practices I could look at state constitutions and in on the facts of Griswold no state other than my home state of Connecticut had made it a crime for married couples to use contraception in the home so that was an unenumerated right we could look to the Declaration of Independence and state practices and state constitutions to find more rights rather than less and the person by the way who first taught me that the key passage was John Marshall Harlan the youngers statement that no state of in Connecticut did this and that's why it was it is a clear right it was an article in The New Republic by one of my former students named Jeff Rosen you are it was you Akhil who inspired me to dig into the history of the ninth amendment and also come up with a principled means of identifying which rights are unenumerated is simply saying that there are some rights that are protected even though they're not written down doesn't tell you how to identify those rights and that's why it's so important ladies and gentlemen and c-span viewers that you learn about the methodologies of constitutional interpretation and decide which one you find most persuasive so Mike Griswold has been famously criticized by conservatives from Robert Bork who said that the 9th amendment should be treated as if it had an inkblot over it to Supreme Court nominees until Chief Justice John Roberts who said that it was correct and I think Justice Alito said it was correct so I really need you to tell our audience do you think Griswold is correct under any approach and if so which approach do you think is correct or was it just flatly wrong oh this one's gonna keep me from being confirmed to the Supreme Court somewhere I actually think where is Wald is wrongly decided now I actually agree with the political result but one of the things that I try to get my students to do is to not read the Constitution through the lens of their political beliefs right and I try to get them to come to the realization that the Constitution doesn't grant a right to everything you think would be a good idea and doesn't prohibit everything that's a bad idea that the text has an objective meaning in the VATS our bedrock and her foundation of Rights I think Griswold is a classic case of a result seeking a persuasive reason and not finding it in justice Douglas opinion he cites the First Amendment freedom of speech and Association as a prop for the right to contraception that's stretching things he finds the third Amendment right to not have soldiers quartered in your home well that sort of supports it too the Fourth Amendment prohibition against unreasonable searches and seizures and he keeps going the fifth amendment the ninth amendment which is really a simple rule that the existence of a Bill of Rights doesn't take away state law rights any sort of extrapolates to the idea that this would be a really good right okay you know one of the best one of one of the standard lawyer tricks that you're all taught is if the text doesn't support you you sort of abstract from the text a bigger principle and then you interpret the principle and you read it back into the text in order to produce the result you like it's hand waving it's lawyers like if the lawyer is doing that hold on to your wallet or your purse because they're trying to pick your pocket I think that as a descriptive matter nobody nominated to the Supreme Court today conservative liberal would ever say that Griswold is wrongly decided so I'm safe from that job at least it's okay I do I have a decent job as it is but it is interesting how the popularity of the result has driven and to some extent distorted our approach to constitutional reasoning now most people ninety-nine percent would actually support the result in Griswold versus Connecticut but I think Jeff is right that that becomes a critical prop for the creation of a broad-ranging right to privacy even to creating an abortion right and at that point people say not now wait a minute where did this right to abortion come from the Ninth Amendment the First Amendment how does privacy sustain a constitutional right to abortion and I think by the time you get to Roe vs. Wade in 1973 you look back at Griswold in 1965 and say this is probably where constitutional reasoning took a turn decisively toward a policy driven as opposed to a text driven approach to constitutional law what's more to say about Griswold oh thank you for your courage in embracing a result that as you say no nominee to the Supreme Court is willing to do today and ladies and gentlemen learn about those methodologies be able to distinguish between the Douglass approach the Harlan focus on the Fourth Amendment and the idea that certain outlier laws might be strike down that's an approach called desuetude it's a fancy SAT word but Guido Calabresi from Yale Law School has said that when some books some laws are on the books and their total outliers then the history and traditions have evolved in a way that means that they should be able to be strike struck down or entertain the possibility that mike is right and that Griswold was simply bad constitutional law from contraception we now turn to the death penalty and we are going to talk about a case called Greg versus Georgia from 1976 the story of the death penalty and its fate before the Supreme Court is such a dramatic one because the Supreme Court moves within the space of less than a decade from holding in the Furman and Georgia case in 1972 that the death penalty is categorically unconstitutional - just a few years later partly because of the backlash against that decision - holding in Greg that the Georgia death penalty statute is constitutional and is not cruel or unusual punishment under the Eighth Amendment Akhil you write about the Furman case and the Gregg case in America's unwritten Constitution and you say it's an illustrative case study in the late 1960s actual executions dropped to zero and the court seemed to hold the death penalty unconstitutional but Congress and 35 states pushed back and the court responded in Gregg by upholding the death penalty to tell us more about that and was it right for the court to be so apparently responsive to this to the whims of public opinion so let's again connect dots I think Griswold is right I think Roe is very problematic what are some differences here's one in Griswold there was one state a weird outlier state that made it a crime for married couples to use contraception and the court struck down an odd law that was really out of sync with basically national norms which um helped generate an idea what's fundamental in America that was what I learned from you Jeff in in a row the court struck down the extant loss of about 48 of the 50 states about 48 or so of the states were non grow compliant only New York of all the states actually Metro standards so one case striking down one law mmm another case all the laws are in costume and boy if you're doing that you better be able to show something pretty clearly in the Constitution now let's think about the death penalty the Constitution uses a word unusual cruel and unusual punishment well that might be an invitation to count at the time of the founding it's not unusual to put the pickpockets to death but over time actually a whole bunch of states say gee that seems a bit extreme and at a certain point putting pickpockets to death becomes unusual and therefore may be cruel and unusual and therefore may be unconstitutional well in 1972 there actually was a year in which no one was executed in America now people were convicted of of death penalty offenses there were lots of people on death row but no one was executed and the court thought ah we are civilized now it's become unusual we actually proclaim that it's unconstitutional that was 1917 during a County approach well one of the reasons no one was being executed is the courts in hate it very difficult to to impose these capital punishments and actually the American people weren't quite there and they pushed back tremendously after the firm in case in 1972 with a whole round of new capital punishment laws and the Court did backtrack in 1976 but I think actually plausibly because if the point is to look at actual state practices is a certain practice genuinely unusual once a whole bunch of states very recently not a long time ago but very recently have passed new death penalty statutes that's new information and evidence about kind of a national ideas about what's fundamental or not so counting is actually a way of sometimes thinking about two things one on enumerated rights if something's in the Constitution you enforce it whether it's popular and I'm with brother Paulson on that it's you know plus a it's not equal so it's unconstitutional but if it's not an enumerated right I believe there are unenumerated rights and we can look at state practice for that and sometimes the text of the Constitution itself may invite us to look at actual practice a word like unusual maybe a word like reasonable might invite recourse to social norms but but anyway that's the answer great Mike crucial question which goes back to your law school toothbrush debates with Akhil can the Constitution evolve when it comes to the Eighth Amendment the late Justice Scalia said that when deciding whether a practices kula or unusual under the Eighth Amendment it might be appropriate to look at state constitutions and to see whether states had come to recognize a practice as unconstitutional today that wasn't at the time of the framing in that sense is there any state vote counting that was appropriate for the court between Greg and Furman or does the meaning of the Eighth Amendment remain unchanged and should it be interpreted in light of the founding era that's a great question and actually a very hard question now if you're a good faithful original meaning constitutional interpreter you still recognize that there are some provisions of the Constitution that have a really relatively clear determinant meaning like what is the president tested me 35 years of age 35 means probably 35 there are other provisions of the Constitution that if you're faithful to the original meaning the original meaning has a range or might articulate a standard as opposed to a strict rule I think it's an interesting question and I'm not an expert on the Eighth Amendment I think it's an interesting question whether cruel and unusual punishment was a term of art that had a limited specific meaning I've read good arguments that is a prohibition on cruel innovations but that was the understand if you think that cruel and unusual means that it is an unusual penalty today then I think there is room consistent with the original meaning for a practice to have become unusual when it wasn't unusual before I recoil a little bit about the Supreme Court in 1972 counting heads one direction and then in 1976 counting a post social backlash and changing the interpretation of the Constitution there's something unsettling about a wet finger to the wind the constitutional you know the Supreme Court does follow the election returns right still that that wouldn't be a possibility I would exclude for a provision that explicitly a standard if the framers in adopting a constitutional provision actually intended or meant for that provision to create some Running Room and for different interpretations over time and I think it is actually conservative faithful to the Constitution to Accord that Running Room difference different results at different times thank you for that affirmative action did you pay attention ladies and gentleman come to ception the death penalty and now it's time for enough affirmative action this is why this is why constitutional law is so crucial and exciting and important to study and the case we're going to talk about is Regents of California versus Bakke it's 1978 and Alan baki sues the University of California after he's denied admission to the Medical School after discovering the school reserved seats for people of color he charged reverse discrimination and the question is is this a violation of the Fourteenth Amendments Equal Protection Clause and of the Civil Rights Act of 1964 which as Akhil said earlier vindicates the promise of the Civil Rights Act of 1875 and forbids discrimination on the basis of race there's no single majority opinion four of the justices say any racial quota system violates the Civil Rights Act of 1964 the dissenters say that the use of race is okay in higher education as long as it's used to help african-americans rather than to stigmatize or degrade them and the key vote is cast by justice Lewis Powell who says that rigid racial quotas are a violation of the Equal Protection Clause but using race as a plus factor may be permissible because intellectual diversity especially in the university arena is a permissible goal under the First Amendment and taking race into account as Harvard College did was permissible Akhil there was a muddled opinion who if anyone was right and if you were writing Bakke what grounds for upholding affirmative action would you give I used to when I was young and making fun of justice Powell you know pluses or okay quotas aren't but of course we know in the long run these pluses approximate quotas you know just like when I was in 20 years old I used to probably say it's a mouth off about my father or something you know as I've got older my dad's gotten a lot smarter and I feel the same way about justice Powell's I've gotten older he's gotten a lot smarter this was maybe the sweet spot in a very difficult culture to me what does it mean for a system to be equal against a backdrop that historically was unequal for so long slavery and it's its consequences it's an opinion that introduced really in a big way into the national lexicon this idea of diversity which can mean all sorts of things but but it's Powell's opinion that that really in injects that that said so and maybe using race to integrate is different than using race to segregate it's you know it may be using race to to make sure that our great national universities look like America maybe that's not quite the same thing as using race to keep people who historically have been an underclass down and that's that's the argument when you make if you were if you want to say affirmative action is okay the intent of the framers of the Reconstruction Amendments is a little unclear and what that means a hundred years later when we're dealing with people even if they thought it was okay to do affirmative action they were dealing with real slaves we'd just been released from bondage whether that's true a hundred years later so it's a very complicated set of issues today since you asked me what you know if I were writing opinion way back when I I wrote a little piece with an end student in the New Republic and you were editing they think the New Republic back then was not I was just called an editor but I have no other responsibilities but but the fellow I co-wrote it with is a fella named Neil catio a brilliant student of mine I later introduced him to Jeff and he's now Jeff's brother-in-law and if you you know want to read a little bit more about that Neil and I wrote a piece a little bit later called Bacchus fate in which we argued that maybe race-conscious affirmative action was okay at least for a while at least if very very limited that was twenty more than 20 years ago it's a toxic business this taking race into account and brother Paulson will maybe have some more things to say about that so stay tuned see that episode because that still is a really important issue in in current America okay Mike we're very eager for your response but I want to ask you this in there both majority and dissenting opinions in current affirmative action cases originalist justices like Justice Thomas and others cite the language from justice Harlan that you said earlier our Constitution is colorblind and neither knows nor tolerates classes among citizens and they extract from that the proposition that any classification on the basis of race especially in affirmative action programs is unconstitutional but their critics say there being not good originalist because Harlan didn't say that all racial classifications are unconstitutional only in regard to civil our Constitution is colorblind and they then note that the framers of the Constitution did not think that the right to go to public schools was a civil right they said so so therefore Brown versus Board of Education was wrong on originalist grounds and for that reason it is bad originalism these critics say to invoke this Harlan language in the affirmative action cases discuss well it's gonna start out by saying that Akhil was smarter in his 20s than he is he actually had it right at the time that we were Law School roommates um I actually think that the principle of the constitution of colorblindness that government may not regulate or classify or discriminate or distinguished on the basis of race ever is the correct understanding there are new instances in which that principle is applied but the principle is the same and I think that you fees stick with the principle of justice Harlan's dissent you reach the right result people disagree on affirmative action but what I think is fascinating about the Bakke case is how it created 30 to 40 years of legal confusion just to praise your short summary four justices say colorblind right you cannot set aside slots in a medical school admissions class on the basis of race these are for only one race they say that is a principle that is that sounds an awful lot like segregation in the strongest justice today who for that position is Justice Thomas the african-american justice on the Supreme Court so four justices are pure colorblind principle people four justices adopt a version of Akhil in his 50s view which says that you can you can adopt affirmative atma that reverse discrimination is categorically different from direct discrimination against minorities and that you can give quotas they explicitly embrace quotas the one justice in the middle Justice Powell says well no quotas are unconstitutional but a bonus or a diversity or a plus is okay I think aquiline his 20s was right that basically of bonus if it is meaningful is a small quota and is just a smaller infringement of the same principle but the really interesting thing is that eight justices agree that the one answer that can't be right is the answer in the middle because all it will do is produce confusion as to the principle and I think we've seen that for about forty years in the Supreme Court's opinions they still cannot agree as to whether or not the principle is race blind or that you can give preferences on the basis of race and they've come up with these decisions in the middle that say well this is too much this is too much this is too much this is this is okay this isn't and it's just total quagmire well without settling that quagmire we will now turn that will perform an intellectual arabesque and turn effortlessly to the First Amendment if I can find my clicker and even if I here it is let's read the First Amendment and inspire ourselves with it's beautiful words Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances and perhaps there's no modern case that better encapsulate our modern First Amendment tradition than our next case Brandenburg versus Ohio decided in 1969 this is an astonishing case which reminds us that America is a global outlier in insisting that speech can only be banned if it's intended to and likely to cause imminent violence I want you to remember that standard because that is the one that the Supreme Court embraced in Brandenburg the speech can only be bad if it's intended to and likely to cause imminent violence nothing short of an emergency can justify repression these are words that come from justice Louis Brandeis is inspiring opinion in Whitney versus California where he says that because the final end of the state is to make men free to develop their faculties the best response to evil counsels is good ones and as long as there's time enough to deliberate then every idea no matter how hateful has to be admitted into the public sphere there is a huge debate in this country today about whether the First Amendment should protect hate speech a recent Brookings poll found that a majority of undergraduates think that it does not but when you are asked you can tell people confidently that the Supreme Court in Brandenburg and in decisions ever since has said by overwhelming majorities the First Amendment does protect hate speech and can only allow speech to be banned if it's intended to unlikely to cause imminent violence the facts of Brandenburg are striking it involves a Ku Klux Klan rally and a guy actually gets up wearing a Klan uniform at a rally and says unless something happens to the race situation in this country white people are gonna have to take revengeance and he is prosecuted under an Ohio criminal syndicalism law which makes it illegal to advocate crime sabotage violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform and the court remarkably holds that this speech which is hateful and appalling and the guys in a Klan uniform at the rally is protected by the First Amendment because it is not directed or inciting or producing imminent lawless action and it's not likely to incite and produce the action it's a willing rally of Klan people they're not going to riot they're just hearing hate speech that they agree with and there's no danger of violence a remarkable principle Akhil it does come from Brandeis why did the court embrace it in 69 having you know come out on the other way for so long and is it correct do you believe that Brandenburg and bran Brandeis who is channeling Jefferson and the Virginia and Kentucky resolutions are right as an originalist matter and what else should the audience know about Brennan I'm a fierce believer in very very broad political speech and and I don't try to shelter my own students from hearing sharp critiques of their worldview why did it takes so and Yale is not governed by the Constitution it's a private institution but the free speech idea is even broader than the First Amendment it's about how we as a society we actually have to be willing to confront ideas that we might not like and figure out why we don't like them we will sharpen our own views when we hear the other side now why did it take so long it's not a unique story about the First Amendment so we've heard for example that the 14th amendment really did promise racial equality but that's not what we've got in Plessy versus Ferguson and that was only you know that only happened later in Brown versus Board of Education we heard that Congress is really authorized to pass sweeping civil rights laws but that actually the court initially in the 1883 cases didn't get it right finally did although not on Reconstruction power grounds but on Interstate Commerce grounds so I believe that these are the words that were up upon the screen before no State shall make or enforce any law which shall abridge the privileges or immunities of citizens united states the core idea there is no state can violate fundamental rights no state can violate things in the bill of rights like speech press petition and assembly oh but it took the Supreme Court of a very long time to actually catch up to that in general and Congress passes I'm sure that the yes actually Congress gives us that the first Congress the words of the First Amendment and then what happens within a decade Congress passes a law making it a crime to criticize you guessed it Congress with a Sedition Act of 1798 and courts willingly uphold that so there there's a lot that the Constitution actually says and then courts actually don't initially implement and then only later do they finally finally finally catch up to it and Mike might say that about affirmative action when he thinks that it's prohibited and courts aren't prohibiting it now but he's hopeful that that day will will come so what explains that because not unique to hate I would say that many of the ideas in the Constitution are truly radical ideas amazing a radical in a good sense and it takes sometimes America a long time to actually catch up to these commitments and promises that really are in the text and because they really are in the text in the end they prevail in the long run because people take seriously what's in the text the Constitution in the very long run in part because there are great institutions like the National Constitution Center and c-span that are designed to actually reintroduce you to these amazing words and principles so thanks for the plug Akhil and Mike how n books like brother Paulson's that looks like production and this is probably a good time for me to plug this wonderful book by tony morrow landmark cases vol 2 which will review all of these wonderful cases and which you can get online and here at the National Constitution Center and Mike I guess two questions about Brandenburg first is Akhil descriptively right that the reason that the Court recognized this free speech principle in the 60s was the Vietnam War and suddenly protest is much more popular and the justices are sensitive to it whereas at the time the Sedition Act of 1798 or of 1917 were passed during World War one and at the time of the framing those prosecutions were much less popular and then I just want to ask you was Brandenburg and is Brandeis correct as an originalist matter the Constitution Center is gonna have such a cool debate at in next month in Boston Justice Breyer will speak it's the Edward Kennedy Library but judge Campbell as a brilliant scholar who's just written a piece for the Yale Law Journal saying as an originalist matter really the First Amendment was supposed to protect core political speech but maybe some restrictions on hate speech or okay so I really want to know is Brandenburg correct as an originalist well okay that's a big complicated question I'll try to give us a synced answer I think Brandenburg is right I think that hate speech tests our commitment to the principle of freedom of speech if we truly believe in the freedom of speech we have to believe in the freedom of people to express views matter how unpopular and how unreasonable they seem to the overwhelming majority of people short of and this is Brandenburg's line immediate incitement to imminent lawlessness in the world after Charlotte's fell it's hard to know exactly where that line is but the line that is drawn in the Brandenburg case is it you can't punish speech based upon its offensiveness that means we have to protect the broadest sphere so Akhil and I are actually both free speech liberals I reach that result as a matter of not of policy not because I like speech I do like speech I don't like all speech right but I think that it is correct as a matter of the original meaning of the Constitution it is true that the purpose of the framers the core purpose of the First Amendment was to protect core political speech but I think that the words that they wrote the freedom of speech are broader than the principle they were over broad in protecting speech they go beyond what European societies do and I think it is something true and distinctive to America whether it took the Supreme Court too long to get there I think could be fairly debated the Supreme Court has not always been a vigorous protector of free speech and some of the most awful decisions of the Supreme Court came in affirming convictions for sedition for for outrageous speech in fact one of the cases mentioned in the book I wrote with my son Luke is a case called Devdas versus United States Eugene vers Eugene Debs was a socialist president presidential candidates in the variety of elections in the early 1900's he was basically prosecuted and convicted and incarcerated for a harsh anti World War one policy speech can you imagine that incarcerated a presidential candidate for a political speech the Supreme Court upheld that whether it took the Vietnam War to break the barrier national give us free speech I think it's a fascinating question of a sociological matter but I'm just a dumb lawyer I don't know that I can answer that descriptive way the devas precedent is amazing in Deb's runs for president in 1920 from a jail cell that can get some more easements and again gets a million votes absolutely astonishing story and an inspiring story of constitutional I won't say evolution I'll say of justices of different perspectives coming to recognize the insight of Jefferson and Madison that speech is a natural right that comes from God or nature and not from government and can't be our freedom of opinion can't be alienated or surrendered to government under any circumstance because our opinions are the product of our reason and as creatures of the Enlightenment we can't alienate our reason to this state because it defines who we are as human beings that's what he wrote in a student note in the alone that is what Madison ya know both both are true well I think Madison all right we have another First Amendment speech and it involves student protests it's called tinker versus Des Moines 1969 still the height of the Vietnam era and here some students are deciding to protest what's going on in the public sphere we're about to have a march on Washington of students who are not happy with our current gun control policy and in 1969 it was the Vietnam War and students come to school wearing black armbands to punish and protest the war and the question is can they be suspended by the Des Moines school district for their armbands they say that this violates their freedom of speech and in a seven to two majority opinion by Justice Fortas the court says students can't be punished for their passive expression of opinion the ban on armbands is an urgent wish to avoid controversy it can hardly be argued that students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate a memorable phrase even students do have First Amendment rights that notion is being challenged today by the Internet where is this schoolhouse gate if you're texting at home and texts that are received in school and what to make of recent Supreme Court decisions including those upholding bans on us banner saying bong hits for Jesus on the grounds that they might disrupt school disciplines so kill doctrinally how important was tinker what's that was it correct and what and and is the court right or wrong to be cutting back on it in more recent cases well this one's personal for me I think I do what I do in part because my parents brought me to Philadelphia when I was 11 years old and I went to Independence Hall and that made a tremendous impact on me but then three years later four years later I'm in high school and I write an op-ed for the school newspaper that the principal censors and my teachers stood by me and they told me to read this case called tinker versus Des Moines which is all about the free speech rights of students and I read it and it really inspired me and I think it changed my life and and I tell that story in a in a chapter that I wrote and a book on the law of the land about tinker versus Des Moines so so this is a case about students about you know the next generation all I can tell you is for me when I was a student it really inspired me to take the Constitution seriously to take rights seriously it's what the National Constitution Center is all about it's great to see at least one youngster right here in the third row so thanks for for coming this space is all about I think two thirds of the people who come here on just a daily basis actually are youngsters learning about the Constitution and for me that's what tinker versus Des Moines was that's a beautiful story this was a spectacular President's Day with thousands of young people so inspiring but Mike you know Akhil has given us this powerful personal story but these more recent cases do suggest that students fewer First Amendment rights than adults and Justice Thomas suggested in a very provocative opinion that as an original matter students had no First Amendment rights and all so was Tinker correct or was Justice Thomas correct tinker is a great case I love the Tinker case even though it protected a keel I would have liked to have seen him suspended by high school but but I don't have a story like that but one of my first jobs out of law school was working in defense of religious freedom for high school students who wanted to form prayer groups or Bible studies after school in the same terms as the Chess Club or the underwater basket-weaving Club or whatever it was and the case that we cited more than anything else was tinker versus Des Moines Independent School District even though it was a religious freedom case we weren't relying on the religious freedom provisions but saying look this is just the expression of views and you can't discriminate on the basis of the fact that it's religious speech and so we use tinker as the main case it's true that the Supreme Court has been chipping back on a couple of decisions the their greater restrictions that have been upheld on the decorum of student speech and whether it's offensive if something occurs within a curricular context the speech kind of becomes more the school speech and it's easier to regulate I actually disagree with that too I disagree with the long hits for Jesus case now you say what is this okay a snotty-nosed high school senior a man after my own heart and a keels apparently shows up for it I think it's the a parade in Alaska as the Olympic torch is going through town and they're actually dismissed from school that day he actually doesn't show up for school to go straight to the parade and unfurls this banner that says bong hits for Jesus he's just a kid right he's just he's just being a wiseacre there's no message in it but they actually uphold the expulsion or suspension of him for school on the basis of what he does at a parade now I know more than like his speech then then I would like some other other speech I disagree with but I think that the basic principle that kids our persons and are possessed with free speech rights it is a vital and correct principle the First Amendment is not limited to adults so kids out there go press your freedom of speech and the legitimate at the legitimate bounds of it is it can't be disruptive to the school environment and it can't interfere with the rights of other students to be secured to have a good education but short of that you get to express your views and the bats ear constitutionally protected right so go out and use it buta former New York Times versus United States the Pentagon Papers case who's seen the post movie it's great go see it and this case is crucial to the movie where President Nixon is using his executive authority to try to prevent the New York Times from publishing these top-secret documents related to the Vietnam War and as we know from the movie they've been leaked by Daniel Ellsberg who worked for the Department of Defense and in the movie it's Katharine Graham the publisher of the post who makes the brave decision to publish despite the recommendations of her all-male lawyers and she at the same time is trying to figure out what the New York Times will do lower court judges actually stopped the presses for the first time in American history the presses have been stopped by someone who fears that the exposure of the information might be dangerous to national security another judge refuses to stop the presses and is very proud of that and it's all up to the Supreme Court and as we learn from the movie the First Amendment protected the right of the New York Times to publish the papers and justice black wrote one of his most memorable decisions saying that the word security should not be used to abrogate the fundamental law embodied in the First Amendment Akhil what the legal principle that justified justice blacks holding was it correct as an originalist matter and was there a decent case on the other side First Amendment talks about freedom left the freedom of speech and the freedom of the press and those were two slightly different things at the time of the framing and of course the Fourteenth Amendment makes these things Apple applicable these rights against state and local governments like Des Moines Iowa for example but freedom of speech comes from freedom of speech and debate in Parliament Parliament is a place where people speak from French pathway to speak in this about very broad political discourse and then England Parliament gets to do that in America everyone gets to do that because we're sovereign we're the Parliament all of us the citizens so that's a very broad political expression which is what Mike and I defend and that's the Brandenburg case now freedom of the press the press there didn't mean the media it actually meant a machine like the printing presses stopped the presses and the idea was in England they see a printing press used to be a pretty expensive pricey piece of equipment not everyone had one today you all do is called your laptop you know or your iPhone but back then if that meant that in the in the century before the Constitution was a very big heavy piece of equipment and the government of England thought that it could license it it could decide who could get a printing press and who couldn't and freedom of the press was this idea that actually government shouldn't be allowed to licence you could print what you want oh but if the government didn't like what you print maybe you could be punished after the fact this came to be in America and the First Amendment it came to be associated with this idea of no prior restraint okay the government can't license a printing press can't have censorship rules in advance printers get to publish now if they publish stuff that compromises legitimate government interest there's a possibility of punishment after the fact but we can't stop the presses by government VI now in that after the fact punishment one other thing you need to understand is who's going to decide whether these words were really I'm not just a judge on his own her own but a jury is gonna have to decide the jury of your peers were actually going to see what it is that you published and whether that actually was contributed to to put a national debate or not but but the Pentagon Papers case it's an air or one it's a great I haven't seen the movie but it's you know it's a great story but it only stands for the proposition that the government can't stop the presses in advance but the court actually acknowledges there's a possibility that once the New York Times and The Washington Post published this oh there could be prosecutions afterwards so they were very gutsy to not actually hold back and to actually publish because they were at risk of after the fact punishment under the Free Press clause which is again only a rule of no prior restraint not the free speech clause it is much broader so that's a important wrinkle in the movie Katharine Graham is worried about being put in jail for conspiracy because both she and The Times relied on the same source Mike is that the correct originalist principle you can't be stopped from publishing before the fact you can be punished after the fact if so why didn't the Nixon administration try to punish after the fact or do you believe that that the natural rights vision of the First Amendment would prohibit publication even after the fact that's a really tough question of whether the First Amendment would permit a criminal prosecution of someone for publishing the disclosure of national security secrets that's not something that's decided by the Pentagon Papers case it's interesting to see this case came up on a super fast track I think it was two weeks from the beginning of the location of the pentagon papers to the time it's decided by the Supreme Court the Supreme Court does it in rapid-fire fashion the movie captures this wonderfully I can't believe a law professor has it gone and seen a movie about a Supreme Court kids at home but there's a range of opinions from the First Amendment absolutists that say government cannot restrict whatever this the press publishes to Brennan's opinion Justice William Brennan that says you know they might be able to restrict publication of national security secrets of the sort analogous to letting Hitler know where the d-day invasion is going to be right that there are compelling interest overrides to a middle block of justices who say we're not we don't need to decide that because one principle that's that's firm is that the government may not shut down the press in advance and here Congress hadn't passed a law authorizing Nixon to seek the injunction that he did that getting a court order stopping the presses is not only a First Amendment violation but a separation of powers violation the president is asking the court to write us a law that Congress didn't write they said give us the case where Congress has passed a law and we might come out differently now there have been cases like that I think there is an instance some time in the early 2000s might have been 2006 or 2007 where the New York Times disclosed our signals intelligence operations something about the NSA wiretapping program now say what you will about the validity of the wiretapping program the disclosure of the intelligence gathering information public did violate the specific criminal statute and it is an open question not decided by the supreme court whether you can criminally prosecute the press for disclosing a vital national security secret I think the gravitational force of the New York Times case has created a political atmosphere we're within hugely broad bounds we do not go after the press for publishing things even where the statute seemed to say that we couldn't wonderful all right we have two more cases and the next one involves the Sixth Amendment in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and to have the assistance of counsel for his defense our cases Gideon versus Wainwright which held that criminal defendants have the right to an attorney even if they can't afford one on their own if you want to learn the human stories behind Gideon and Wainwright read Anthony Louis's beautiful good book Gideon's trumpet which inspired a generation to go to law school to defend the defenseless and it's an astonishing story I won't ruin it except to say that Gideon who hand writes his own petition to the Supreme Court saying that he had a right to a lawyer ends up getting one and being retried and being found innocent and I wish I could take out Louis's book but I'm gonna take out the Kindle because I love to read the last paragraph of the book when I teach Criminal Procedure because it's so moving and you just have a sense of the incredible journey that Gideon traveled to be made free after asserting his constitutional rights after nearly two years in the State Penitentiary Gideon was a free man there were tears in his eyes and he trembled even more than usual as he stood in a circle of well-wishers and discussed his plans his half-brother the Air Force sergeant was coming home from Japan and would adopt Gideon's children that night he would pay a last triumphant visit to the Bay Harbor pool room could someone let him have a few dollars someone did this is Anthony Lewis do you feel like you're you accomplished something a newspaper reporter asked well I did I killed what was the doctrinal principle that says that you have a right to have the state pay for you to have a lawyer how does that square with the history of the sixth amendment why did it take the court so long and was Gideon correct so it says the right of counsel in the Constitution and after the Fourteenth Amendment that fundamental right as with all the others comes to apply against the states the counter is Oh council only if you can pay for it it's not government appointed counsel well it's not so clear at the founding actually it is true that in capital cases in America the government paid for private counsel but in non-capital cases it didn't on the other hand the fiction was in a non-capital case you did have the benefit of legal counsel that was called the judge and the judge actually if you couldn't afford counsel would look after your interest in the judge is paid for by the government in the last time I checked so that actually was a form of government sponsored a government subsidized Council over time it came to be clear that they judge can't be both the umpire and the coach for for the defenders team you can't wear both hats at once so one idea is Gideon the case is just actually changing the precise way in which the government provides your counsel not through a judge but through a public defender publicly subsidized that's one argument here's a different argument whatever else it says the Constitution provides for due process which is about fair procedures and there's just an intolerable risk of unfairness that an innocent person could actually be found guilty not because he's guilty but because he's just not particularly learned in the law and hey he can't defend himself well in the jury trial with the rules of evidence and all the rest so there's an intolerable risk that someone's going to be convicted not because they're guilty but just because they're poor and that's not fair procedure not due process of law and as society becomes wealthier over time maybe weak is more fair to insist that we provide more government resources especially because government is pouring more money into prosecution than it used to before so that's a second argument and one that does depend in part on overtime how the prosecution function is changing how government is become how societies becoming wealthier now here's one final point it's a counting point at the time of Gideon forty five of the fifty states as a matter of state law were already giving all felony defendants appointed counsel and justice black's landmark opinion for the court in Gideon mentions that prominently that's a counting idea and even the five that weren't all of which were in the former Confederacy always gave counsels for capital defendants and actually in big cities and and even they gave counsel to a lot of people just not not every felony defendant twenty-five states filed an amicus briefs in the case 22 of them on behalf of Clarence Earl Gideon so actually most of the states were very much on board with this principle and you see the John Marshall Harlan count of a second the younger counting principle at issue in this one as well okay Mike I heard a lot of evolution in there I heard counting I heard the function of government changing I heard a lot of nice little so as an original matter at the time of the framing some states banned defendants from having counsel because of the vestiges of an old system where there was no counsel and you weren't sworn under oath and people weren't allowed to testify in their own words but the at the very least the sixth amendment was trying to allow you to have counsel if you could afford it was the court correct to hold in the 60s that even if you couldn't afford it the state had to provide one or was Gideon wrong as an overdose matter Gideon was right and I think the principle is is actually a pretty simple one if it's still arguable and debatable I think that the right to counsel the right to have assistance of counsel for defense is an affirmative right it's not merely a right that would govern not to have government forbid you from having a lawyer but it is a right to have a lawyer and I think it's an entirely plausible reading of that that in situations for some can't afford one that the government would have provided a pointed counsel so I I'm a fan of Gideon our last case cats versus us and it's time for the Fourth Amendment I'm gonna put on the screen but I think I can be the beginning of the Fourth Amendment by heart as a party trick see if I'm getting it right the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and the central idea of the Fourth Amendment is to repudiate the hated general warrants and writs of assistance that sparked the American Revolution at the time of the framing you had to break into someone's house and violate their private property rights to violate the Fourth Amendment and as late as the 1920s at the dawn of the age of the wires the Supreme Court in a five-to-four decision written by that underappreciated constitutional hero William Howard Taft that without physical people's past there was no Fourth Amendment violation in that case the Olmstead case the wiretaps were put under a public sidewalk leading up to the suspected bootleggers office and Taft said no trespass no Fourth Amendment problem in his visionary dissenting opinion Justice Brandeis disagreed he predicted that ways may someday be developed by which it's possible without physically intruding into the home to extract secret papers and introduce them in court he anticipated fMRI mind-reading technologies which would allow the expression of unexpressed thoughts sensations and emotions and said that the Fourth Amendment should apply even without physical trespass the Katz case is significant because it recognized brand ices insight and said the Fourth Amendment protects people not places Katz involved an ancient technology from long ago called a phone booth who remembers his fungus Wow that was less than a quarter of the audience that was about 20% of the audience remembers the phone booth I do used to have to go inside them and you could close the glass door behind you and talk on the phone and the court in this case said because the suspected gambler Katz closed the door he manifested a subjective expectation of privacy that society was prepared to accept as reasonable those were justice Harlan again his words and his the younger Harlan's in his concurring opinion is there a subjective expectation of privacy that society prepared to accept as reasonable there's so much to say about that test including the fact that it seems really circular if the government says citizens we're gonna track your GPS devices door-to-door then our expectations of privacy are diminished and so our constitutional protections and this term in the carpenter case the court may determine the future of electronic privacy by deciding whether or not Katz applies to the tracking of our movements in public based on seizing our cellphone records for five months Akhil you have written so powerfully about the Fourth Amendment and the general warrants was it correct as an originalist matter who had the better opinion Justice Stewart in his majority or justice Harlan or if you were writing Katz from a textualist an originalist point of view would you decide it on other grounds well I have a broad understanding of what counts as a search or a seizure triggering the Fourth Amendment we don't quite live in the same physical universe people can be intruded upon without a physical trespass using electronic surveillance techniques so I like the idea of a broad reading of search and seizure I would say that when you read the words the Fourth Amendment all that it means when there's a search or seizure is that it has to be reasonable the court sometimes says oh if there's a search or seizure past it there has to be a warrant which I don't think is true and it isn't true actually for all sorts of searches and seizures metal detectors and airports or searches and seizures they don't have warrants if you're stopped and frisked on a street that's a search or seizure it doesn't have a warrant so so I would have a broad understanding of what counts as a Fourth Amendment episode but I think that all that that requires is governmental reasonableness rather than a warrant the warrants that were that we're generated after the Katz case wiretap warrants are issued by courts in secret that's going to lead to FISA warrants which are also issued in secret I don't love the idea of courts acting in secret they tend not to act so well when they they they act secretly rather than an open course oh I don't love that and now here's where I'm really kooky the framers of the fourth amendment did not believe in an exclusionary rule so even if the Fourth Amendment was violated if actual evidence of guilt was found that was actually admissible here's a quote from a famous case it matters not how you get it if you steal it even it would be admissible so and that's not Brandeis as view you're a real Brandeis enthusiastic that that it obviously followed that if the government violated the Fourth Amendment that evidence would need to be excluded only promise no founder said that no founder actually ever thought that no court in America state or federal in a member states have state constitutions with a little 4th amendments that apply against state government no court in America ever excluded evidence in the kind of exclusionary rule like way in the entire century after the Declaration of Independence so you know an eclectic set of views broad understanding of first Fourth Amendment what triggers it but only reasonableness is required and I'm not sure that judges issuing secret warrants are always the best way to go and and I don't love the exclusionary which by the way doesn't help you at all if you're innocent because if you're innocent they don't find anything and they still intruded upon you so I prefer a regime which is the founders regime when you're intruded on sue them for damages have a jury decide a jury of your peers sock it to them and the more innocent you are the more you recover and good for you Mike the recent Electronic Privacy cases have often been unanimous the court has held by nine to zero votes that putting a GPS device on the bottom of someone's car or seizing their cell phone on arrest without a warrant violates the Fourth Amendment but the more conservative originalist justices focus on private property violations that was the problem in the GPS case where they walked on the guy's driveway and stuck the GPS device on the bottom of his car in cats was there a property violation to peg on or was cats walk from an originalist no well I think cat says write it from an originalist perspective but but I think with all respect Jeff I think you're wrong about the conservative justices some of them have found a Fourth Amendment violation where there's a specific intrusion on a property right or a physical intrusion but one of my favorite Fourth Amendment cases to teach is one that it believes called Kyllo mm-hmm which is written by Justice Scalia and there's never a more pure original meaning textualist than Justice Scalia he was just relentless on this and served wonderfully for 30 years in the Supreme Court this was a case about the use of infrared technology to look into people's houses and the question presented was whether that was a search and he said the fact that it was not a technology known at the time does not alter the fact that it is intruding into the areas of the home where people you know it is a search of the home it actually matches the literal read words of the first of the Fourth Amendment I think similarly to to seize somebody's phone conversations to wiretap is a seizure sure it was not a technology known at the time but it's just an illustration that the Constitution's terms sometimes embrace new instances that fit into traditional categories so I I think that actually from an originalist point of view Katz is clearly right that wiretapping somebody's conversations is a search it is a seizure of the conversation so I actually agree with an astonishing amount of what Akhil said about the Fourth Amendment it's a prohibition on unreasonable searches not a prohibition on searches per se not all searches require warrants and Akhil has adopted the wonderfully conservative view that the Fourth Amendment itself does not provide an exclusionary rule the Fourth Amendment is traditionally about damages remedies suing police officers for intrusions upon your rights not about excluding evidence there really is no clear textual reason in the Constitution why the police's error or mistake or even willful mistake should result in the exclusion of evidence at a trial they should be sued for damages but I think that that's not a reason why the guilty should go free just because the constable blundered well this is a wonderful place to end first it shows that two old friends with very different approaches may converge on constitutional results and as you remind us justices like Justice Alito and Justice Scalia who often agree on the result may diverge on the methodology in Fourth Amendment cases because they have different views about how the Constitution should be translated in light of new technologies ladies and gentlemen here is your homework as you get ready to enjoy this incredible series of twelve landmark cases first I want you to dig into the text of the Constitution and I do want you to download if you haven't already the National Constitution Center is amazing interactive Constitution which you can find in the app store you can click on each of these amendments and see the leading liberal and conservative scholars in America such as Akhil and Mike with a thousand words on what they agree that provision means and then separate statements about what they disagree it is an inspiring Civic and educational feast and it'll get you ready to think about the cases then I want you to read the opinions you don't have to read all of it you can skim every law student learns this we read the majority opinion read the dissents then listen to the human stories hear the amazing inspiring brave lawyers on both sides who made their arguments and then at the end make up your own mind and be open to the possibility of separating your political from your constitutional conclusions be open to the possibility that you might think that searches of the conversations are a bad idea but the Fourth Amendment prohibits it or they're a good idea but the Fourth Amendment allows it that's what it means to think like a constitutional lawyer that's what I learned from Akhil so many years ago in that wonderful class that's what the two of you learn when you were students debating each other caring so much about the meaning of the Constitution recognizing that it is made for people of fundamentally differing points of view as Justice Holmes said and that's what the constitutional center is about that's what c-span is about that's why we're so excited about this series and so thrilled to share it with you thanks to our friends at c-span and see you next week thank you so much [Applause]

Channel: National Constitution Center

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Id: XMc7iHzZ2C0

Length: 108min 45sec (6525 seconds)

Published: Tue Feb 20 2018