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tv   Judge Douglas Ginsburg - The Founders the U.S. Supreme Court  CSPAN  April 30, 2018 10:35pm-11:47pm EDT

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we have a conversation with george douglas of the u.s. court of appeals for the district of columbia circuit is talking about the history of the supreme court, including his time as a clerk. this was hosted by the society of the four arts in palm beach florida. it runs 40 minutes. i know you all agree that this series has had incredible speakers. [ applause ] this morning's speaker, is another brilliant communicator, gifted american, who has led an extraordinary life. you may already know that the united states is divided into federal, judicial regions. there are 12 regional circuit courts.
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we in florida are in number 11. that court has jurisdiction over florida, georgia, and alabama. judge ginsburg is a senior circuit judge of the united states court of appeals for the district of columbia circuit. the seat of our government! the dc circuit is often referred to as the seventh most powerful court. is second only to united states supreme court. it is the point of the court of 1986 by president ronald reagan. it is interesting, in the recent decades, more supreme court justices have been nominated from the dc circuit than any other single source. for example, the late justice scalia, justice bader, no relation to the speaker today. justice thomas, and chief
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justice roberts, to name a few. the first justice to be nominated by president trump was a student of doug ginsburg. he graduated from the latin school in chicago in 1963, and intended cornell university for he told me he was studying classics and english. he was heading in the direction of a phd with a career in education. he realized that he did not want to be a professor. he left cornell, and together with two friends from harvard, these three young men, way back then, founded the first computer dating service called operation match. [ laughter ] it was very successful. after a few years, he decided he wanted a career in law. he returned to cornell, and got
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his bachelor of science. he graduated in 1973. at only 29 years of age, having been hired right out of graduation to harvard, and 2 years of clerking in the court, he clerked for justice marshall. he was hired by harvard law school. judge ginsburg later served in the reagan administration, in several positions, before being named the assistant attorney general for the antitrust division -- attorney general ed knees. he taught at numerous prestigious university including nyu, columbia, and the university of chicago. he is now a professor at george mason university's law school. he is also a judge. recently, his career has taking
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the spec take into fascinating paths. laster, he traveled to dubai, europe, melbourne australia, and china. he has been teaching judges about the american model of competition, regulation, and sensible antitrust laws. in china, they have only had antitrust laws for the last 10 years. he told me that these countries do not have the same understanding of healthy competition as it works here in america. he said, american companies are taking a real beating around the world. china and the european union have each find google about $1 billion for conduct that are ftc examined found was not anti- competitive. the newest and most incredibly exciting project he is working on is the three-part series for
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public television on the u.s. constitution. it is called, freedom, if you can keep it. my heart is singing. in order to film the series, the judge has been traveling to do research in monticello, mount pelee, independence hall, gettysburg, and winter harvard maine, where he spoke to lobstermen about the articles of confederation. he also went to london to view the magna carta. 1939, the magna carta was on loan to the world's fair in new york. when the war broke out, we took the declaration, constitution, and the gutenberg bible to fort knox, kentucky for safekeeping. prime minister churchill suggested giving the magna carta to america, to encourage us to help with the war effort. he was reminded, it did not
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belong to the british government. that was that. the tv series is due to air in september 2019. how perfect for the legacy series. ladies and gentlemen, the man that president reagan called, unpretentious. the great american judge, who firmly believes in the rule of law. thank you. [ applause ] >> thank you. thank you all for being here. my task, as i was given, to talk about the legacy of the founders, and the judicial group. their influence still guides us. we may have gotten a bit misguidance in recent decades as well.
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before getting into the problems of the last several decades, i want to give some background on the earlier. for the judiciary. the key thing to start with here is the vesting clauses of the constitution. article 1, which says all legislative powers, and there's along with the follows this, in the congress of the united states. article 2 says this is the executive power to president. article 3, as you can see, is the judicial power. and one supreme court, and and superior courts, congress may from time to time ordain and establish this. every federal court, whether supreme court, is a creature of congressional action. over the years, congress has
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created courts and abolished courts, expanded and contracted them, to meet changing needs. i would like to get a little more light in here. thank you. i am not sure where it is. oh, thank you very much. hamilton, wrote a series of essays to encourage ratification by the various states. famously, they referred to the judiciary as the least dangerous branch. it's the least dangerous because , to the rights of the people, because the courts have neither force nor will. the court cannot enforce its own judgments. that requires the executor to do that. u.s. marshals, national guard,
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etc. it can decide only cases allowed to it. it cannot initiate a case or inquiry of any sort. to make there's the legislative branch, executive branch, and i don't know what the other one is called. >> [ laughter ] okay. it's the judiciary. >> [ laughter ] >> it's understandable that people would not be focused on that. most people are not familiar with the court system. the first chief justice was a john j. he was one of the authors of the federalist papers. he was chief justice from 1789 until 1795. there were six justices on the
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court then. the court did not do very much at that time. it decided seven cases in 6 years. j himself it took time off to negotiate the treaty with britain. he helped with the relationship and problems that came out of the war of independence. some people complain that since the justices are political. it's notable that j, twice, went for governor of new york. he won the second time and resigned from the court. the early court had no permanent home. the first meeting was in the royal exchange in manhattan in 1790. to say it was uneventful, would make it seem too exciting. [ laughter ] it was a complete failure. only three judges showed up, so there was no quorum. the next day, the fourth one showed up. they had a quorum,
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but they had no cases. [ laughter ] they just adjoined the spec adjourned. they got on a horse or coach, and went from one town to another. they heard cases that came up in that area. that was a burden that was imposed on justices of the supreme court for many decades. the next chief justice was the great chief justice, john marshall. he served from 1801 until 1836. he served 35 years as chief justice. he was not john adams's first choice. he wanted to reappoint jay. j declined. he said that the court lacked energy, wit, and dignity. that's probably a fair assessment.
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later on, john adams referred to justice marshall as the greatest act of my life. marshall enormously expanded the influence of the court, and the federal government. he was a federalist. he was appointed by a federalist president. he was of the view that we needed a strong national government. decisions concerning the powers of the government were invariably decided in favor of the national government. he did something that stays with us every day today. in 1803, the supreme court decided the case harvie versus madison. it was the most important case he ever decided. this is what the court said. >> an act of the legislature with regard to the constitution is void. should the be any doubt, it is emphatically the problem and [
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indiscernible ] to say what the law is. with these two lines, the court established the principles that any government action, in judgment inconsistent with the constitution is void. the courts will decide what is and is not consistent with the constitution. that is called a judicial review. that is what happens when other americans go to court to assert or protect their constitutional rights.>> this was not something that came with a heritage from burness law. there was only one incident that was recorded in british law were court declared an active government void. that was 200 years earlier. this was a practice under the articles of confederation and many of the states, that was regarded as logically implicit with having a written constitution. marshall went on to say, the powers of the legislature are defined, and limited.
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the limits may not be mistaken or forgotten. the constitution is written. this was not an unimportant office -- observation. having a written constitution was not unique. ours was the second, the first was a massachusetts. as you can see from the next slide, we will get this a peer. a number of the justices on the supreme court has varied with time. it was stabilized after the civil war, at nine. the court and the entire federal judiciary remained relatively small and unimportant in the life of the nation, throughout the period until the civil war. that was until the 1850s. one presently can, suspended habeas corpus during the civil war, chief justice tani, who had served from 1836 until 1864 , ruled that lincoln's actions
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were illegal. lincoln ignored him. after the civil war, the country grew greatly. appeals increased dramatically. in an effort to decrease the workload, congress created the regional circuit to which we refer to a moment ago.
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bottom carbon copy, and what wonders -- one wonders what he was asked to read and sign. congress asked to pass legislation giving the court full jurisdiction. previously, there were so many appeals that the state court had no choice as a matter of rights to be heard. that was a great burden on the court, because a lot of cases were not worthy of the attention of the supreme court. it takes the vote of four to agree to bring the case up. at present, the supreme court is receiving about 8000 requests for review each year.
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it's granting and hearing about 80 cases, 1%. it was hearing about 160 cases, and the number of cases heard has been going down. the supreme court and the federal judiciary as a whole -- there are more judges, there are more buildings, but the structure of the system remains the same. that wasn't foreordained. in 1937, president roosevelt, in respond -- in response to the perceived hostility, --
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that would have brought the court up to about 15 justices. that plan was immediately derided as court hacking, as a nakedly political attempt to secure favorable rulings from the court, and it was rejected in the senate. it was rejected by a vote of 70-22. one of the noteworthy changes in the court system came in 1978, what you see here is the core of the system, supreme court, regional courts, one through 11, as gabe explained, and then the 94 district courts around the country. for example, florida southern is where we are right now.
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the change in 1978 was the creation of the foreign intelligence surveillance court , and its appellate classes. this is the court that hears applications from the government , for our warrants to engage in surveillance. they each serve a seven-year term, they are chosen by the chief justice, but they sit one at a time. so there will be one judge of this court that comes from washington to around the country, to the same building where my court is. he hears cases from the government. proceeding, there is no opposition. you cannot effectively inform somebody that they want to
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serve alien you, so that they can prevent that. so it's done in secret. over the years, the sum -- the importance of the supreme court in american life has only increased. the court is looked upon as the primary arbiter of policy disputes. for example, the constitutionality of the affordable care act, which has survived two challenges now in the supreme court, and there is a third one now beginning. when he wrote his democracy in america, in 1835, he said --
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not only by the founders, but even by the state chief justice taft. there are now 179 federal circuit judges around the country and 675 district judges. that total is still under 900. by contrast, there are about 30,000 state court judges, and the state courts
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part of the talk and we will discuss the problems we are facing in a moment. the constitution was ratified by the states
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the court to view those words with a different meaning, one that would not be recognized by the framers? here is what some scholars and judges have said on the subject. >> we don't have a religion, we don't have an ethnicity, we have a constitution. >> our constitution is special because it's a written constitution. >> it's idiot proof, and we have tested that over and over again. what we do when we become american is not to swear an
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oath to the united states of america or to the existing government of america, we swear to the constitution that unites us and makes us a country. >> the purpose of a constitution is very simple: it's to make politics possible instead of civil war and anarchy. >> it's a set of rules that tell the government what it can and cannot do. >> i believe in the constitution of the united states, i think it's a really good document. >> i'm afraid too many people worship the constitution, it is not the bible. it's not the koran, it's not the torah, it is a document created by human beings. we are ruled by people who have been dead for 200 years.
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>> original -- original ism is simply the proposition that the meaning of the text of the united states constitution should remain the same until it is changed, and even then, only by amendment. >> it's often difficult to discover what the original meaning of the constitution was, because it doesn't give you that much guidance. >> i think we kid ourselves if we think that there is some kind of objective meaning or answer. >> i can't see the point of having a written constitution -- >> if you are a written constitution -- living constitutionalist, it can mean whatever you want it to mean. >> i believe that the
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constitution is ever evolving, it needs to be tweaked with the changing times. >> we aren't living on a blank slate, but we are filling in the blanks and figuring out what the constitution should be. >> we are just left with a situation in which the constitution means whatever the judges of the supreme court say it means. >> if we were interpreting a contract, would any judge ever say, i don't think the words have any meaning, but i'll tell you what i think we need to do. >> it's not some frankenstein creature that you can just add body parts to and make it as fierce or not fierce as you want. >> what the supreme court says it means is not actually the constitution. the constitution is the constitution. >> i cannot help but think he
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would agree, the court has led the nation astray when it departs from the meaning of the constitution. the new content of the courts own making. i think the original meaning is our only legitimate basis for making decisions, constitutional decisions, that what the words meant to those who wrote them and who ratified them are the only proper guide to we who interpret the constitution. no one would think otherwise with regard to a will or a contract or a statute, because the rule of law requires that. it protects us with written rule by the -- from the personal
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preferences of the judges. the original meaning of the constitution is perfectly clear, but recovering -- is admittedly difficult in many instances, but that is not a reason in my view for a court to shrink from it duty to do the best that it can. this is a contested point as we've seen, that when professor ellis is here, you'll probably see that he disagrees with me. i tell you as a lawyer, parsing the words and looking at documents that are ex- contemporaneous, it is difficult, but it's not impossible, and it is what our goal should be in my view. judges taken note -- an oath to
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uphold the constitution. the last play that shakespeare wrote is 105 years old -- 405 years old. no scholar would dare interpret it without dare -- without seeking out what the words meant at the time. i will in confidently drown myself, and then of course othello coming back after his walk, how goes it now? he looks gentler than he did. >> -- it's not the first definition that has come to mind today.
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it's the third in some dictionaries, and it's not at all in some others. but i think you see the point. we just wouldn't purport to put on -- the development, the history, the three major doctrines -- due process, equal protection, and a separation of powers, and see how the court has deviated from the original meaning. these are the due process clauses of the constitution. in article 5, amendment five, and then amended 14 after the
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civil war, imposing the same obligation of due process on the states. so no person shall be deprived of life, liberty, or property without due process of law. notice that the text is all about processes. it's perfectly acceptable under the text to deprive somebody of life, liberty, or property, as long as proper procedures are followed. a right to assisted suicide could not possibly be extrapolated from this text, but that has not stopped the supreme court. how does this
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guarantee of due process morph into a substance of rights, not to be found in the constitution, but to be determined by an oracular supreme court? >> securing the rights of other americans would take -- rivers of blood. for almost 75 years after the ratification of the constitution, the institution of slavery grew and spread into the new states, just the opposite of what the framers had expected. a court case in the 1850s would bring the problem into sharp focus.
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>> my great-great-grandfather was purchased by an army surgeon. dr. john emerson took him to the west conversation -- west wisconsin territory. he met and married a young lady. at that point, he had -- missouri had a law that said once free, always free. once he had gone into free territory, he was no longer a slave. so on april 6, 1846, they went to the house in st. louis and petition for their freedom. the missouri lower courts held that he was a free man. 12 white man on a jury gave them their freedom.
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it was a wonderful thing, but it was short-lived, because mrs. emerson immediately appealed the case. >> the supreme court in missouri changed the precedent and said it didn't for him, and that's when he brought his federal action. >> after 11 years, the case lands in the supreme court. >> the course was stacked against scott. >> heading the court is chief justice roger b tani. >> they did something the framers never imagined, they invented a constitutional right to own slaves. >> justice tani wrote the
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decision, and it ran into hundreds of pages. included commons like these -- comments like these. >> i can't imagine that anything could be worse. they said all men are created equal, but they didn't mean it. >> within three months of the scott decision, -- they did not get it through the courts, but they got it from the hand of
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the children of their original owners. >> and tani thought he was going to resolve the slavery controversy forever by basically saying, stop arguing about this question, it's settled. but it's wrong, you don't settle a controversy like that by simply saying i'm right, you're wrong. >> the court also pronounced in that case that congress had no power to free slaves in the territories. this was the first time a court had held a statute of any significance
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unconstitutional using its power of judicial review. the opinion has the feel of an original -- and originalist opinion. it claims that the framers could not possibly have intended that blacks could become citizens when some of them themselves owned slaves. but the opinion was based on the suppose it intent of the framers and not on the words that are used in the constitution. there was a great deal of flexibility when one wants to contribute -- attribute intent, rather than reading their words. to dissenters. in several
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states, a black man could vote at the time of the ratification of the constitution, and some blacks were citizens who participated in the ratification of the constitution. there is nothing in the constitution that said citizenship was confined to whites or that ownership of a slave was a constitutional right. dred scott is in truth the first substantive due process case. one of the dissenters resigned from the court in discussed. in that case, the court confronted a new york law that
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-- the owner challenged that law , got it to the supreme court that it be invalidated because it violated the due process clause. the court obliged. specifically, the court held that the due process clause included a substantive right to freedom of contract. that is due process, meant that not only did -- this era, the lochner era, caused the court
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to strike down any number of labor statutes as being inconsistent with the individuals freedom of contract. in the 1930s, the new deal court repudiated lochner and concluded that there is no constitutional right to freedom of contract. but the death of lochner did not spell the end of substances -- substantive due process. in a case called griswold versus connecticut, there was a connecticut statute that -- what's noticeable about the case in particular is that the justices, although they are quite certain that the statute is unconstitutional, had no
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certainty about what clause of the constitution it violated. they held that there was a right to privacy, although again, nowhere to be found in the constitution, but they said that it could be found in the penumbras and the emanations from five different passages in the constitution. the case remains extremely important, because justice harlan concurred with the judgment. he asserted that certain rights, although not mentioned in the constitution, cannot be abridged by the congress or the states. those rights were implicit in the concept of ordered liberty. there it is. it is implicit in the concept of ordered liberty, but it's
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okay that the framers didn't put it in the constitution, it's implicit in the due process clause. instead, he invaded didn't -- envisioned -- to be identified and added to the constitution by the judiciary, of course. he essentially asked the judge, the court, to weigh the importance of a purported right , and if they deem it important
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enough, then they insert it into the constitution. voil@. justice harlan's approach in that case became the intellectual and jurisprudential foundation for the many cases since then that have strayed from the text of the constitution. i want to be perfectly clear about this, please do not forget this one point. i have no quarrel, i'm not expressing any quarrel with these policies. i agree with some if not all of them. but they are not proper policies to be created by the court and inserted into the constitution. they are properly legislative measures to be resolved through the legislative process.
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policy is politics, and politics is not the business of the courts. every time he does so, it short- circuits valuable political debate and entrenches, rather than resolves, the significant political disagreement. judge ruth bader ginsburg described this effect on the abortion reform movement as being something like arrested development. quoting her, it seemed to have stopped the momentum on the side of change. and of course, it left an open wound that is still open. so in one sense, dred scott and griswold all spring from the same root. the desire to end a political
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disagreement with a pronouncement from the court. it never works. i want to turn to equal protection. as terrible of the consequences of dred scott were, and the accelerated the march to the civil war, the legal consequences were somewhat slim. the opinion was overruled by the ratification of the 14th amendment in 1868. this clarified that all persons born or naturalized in the united states are citizens of the united states, and forbade the united states for -- from denying those rights to any citizen. obviously, no state
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discrimination on the basis of race, but the text was -- several states after the civil war were unwilling to accept the 14th amendment and introduced jim crow laws. this essentially became legalized apartheid. >> my great-grandfather was a shoemaker. he challenged the separate car act of louisiana, which mandated separate accommodations for people of different races.
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the railroad also thought that this law was ridiculous, it cost them a lot of money to change cars, when it was easier to let all passengers ride in the same car. just because of his complexion, he would appear to be someone of the white race, but there was this thing called a one drop rule, if you have one drop of african blood in you, you were a mixed race. you got on the train car, you boarded the train car, and the doctors as well as the arresting officers were in on this plan to fight segregation laws in louisiana. according to the arrest, he was
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-- >> in 1896, the case reaches the supreme court. >>'s lawyers argued that the state law violated the equal protection of the laws guaranteed by the 14th amendment, which was ratified 25 years earlier. >> the supreme court says the constitution must be interpreted to reflect the customs and traditions of the people. so much for equal protection.
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>> the case resulted in the united states supreme court adopting separate but equal, the law of the land. the suffering that resulted from that case being decided was a national disaster that reached out into every facet of life. >> the first time i came to washington, i saw in the station, separate fountains for whites and for colored. i was really shocked. that was in 1967, more than 100 years since the civil war. that is the legacy of plessy versus ferguson. >> he dissented based simply on the text of the 14th amendment. he said our constitution is colorblind, and that all citizens are equal under the
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law. brown was the last in a series of -- the plan of litigation began with law schools, state law schools, because they thought that the judges would be most able to understand and grasp a problem with having segregated law schools, but eventually it worked its way to public and private primary and secondary education. here is the man who brought many of those cases.
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>> i knew an african-american man who was born in 1908, in the days of segregation. he grew up on this street, played in this neighborhood, his father was a porter on a train, and his mother was a schoolteacher. he wanted to go to the university of maryland law school, but they knew -- he knew they wouldn't admit him because of his race. two years later, he turned around and sued the university of maryland law school for discrimination and one. for the next few decades, he spent a lot of time in court. he became america's leading civil rights lawyer. he represented the -- while trying to save two men from
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being lynched, he was almost lynched himself. was the bravest man i've ever known. >> in 1954, the supreme court heard a landmark case that challenged the legacy of plessy versus ferguson. the naacp challenged the fact of life in many american schools: segregation. brown versus fortification -- board of education in topeka, kansas. >> he realizes that it's going to be monumental. he realizes that not everybody in the country is -- >> he lobbies his brother over time, and he eventually convinces all of them to come aboard. >> the court said the mere fact of racial separation creates
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inequality because it is the government sending a message of inferiority, creating a second- class citizenship. there are people who say it's probably the most iconic case in all of our history. >> brown says separating the races is not equal. it's a badge of inferiority. it's a stigma. >> in a case like brown, it's almost a moral decision. it's something the united states should stand for. >> it is good when those decisions are unanimous. >> and that man who was a lawyer for the naacp, who argued brown versus board, he was thurgood marshall. he became the first african- american justice to ever serve in a state supreme court. i had the honor of serving as
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one of the law clerks there. >> brown is not an originalist opinion. it treats the original meaning as unclear on the subject of whether it prohibited segregation in public schools. instead, it was based upon social science studies. it was a rather disappointing form of reasoning, because if later social science research were to reach a different conclusion, the case would have been undermined. it is held up as a problem with original is in. the original intent of the framers of the 14th amendment
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was not to bend segregation of public schools, but the objection implies that the words mean what was intended. even if the framers of the 14th amendment intended both to require equality and permit segregation, when it became clear that the two were mutually exclusive, and the court had to choose one, only equal protection had a grounding in the text of the 14th amendment. not separation. despite the 14th amendment's clear and uniform text, the court also evaluates classifications with different degrees of intensity. for example, a claim that a law or regulation dealing with the subject unreasonably or unfairly distinguishes between two groups
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, and this can be in any kind of business or other economic matters, the court will uphold it if it can come up with what it calls a rational basis for the distinction, even if there is no warrant for thinking that that was what was intended or that the words require it. at the same time, a law that treats people differently based on race must be narrowly tailored to achieve an appealing governmental interest, and the government rarely finds that this standard has been met. interest lee, -- interestingly, it did find this in affirmative action laws. finally, in the gay rights cases, the courts relied upon --
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while adamantly refusing to tie its jurisprudence to any particular clause in the constitution. instead, telling us that due process and equal protection together authorized the court to decide what liberties in its reasoned judgment are fundamental and therefore protected by the constitution. let's turn lastly to the separation of powers. recall the vesting clauses. this is what james madison said about the separation of powers reflected in these three vesting clauses. i'll put it up for you.
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ambition to counteract ambition. the accumulation of all powers, legislative, executive, and judiciary in the same hands, is the very definition of tyranny. in modern times, the court has advocated -- abdicated its responsibility for separation of powers and allowed for all manner of experimentation engineered by the congress. the executive does not have lawmaking authority. you saw that in the vesting clauses. certainly not the authority to make large, programmatic law. but in fact, executive departments and agencies formulate policies that have the force of law. put out a regulation. violating that regulation can cause you to be called before
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them and find. since the 1800s, there has been a trend toward policy being made by these specialized agencies. in the 1970s, the environmental protection agency, and then 10 years ago, the consumer finance protection board. in fact, most of the laws today are made by the executive and not by the congress. the executive acting under delegated authority from the congress. while these agencies are making policy under regulations that have the force of law, the constitution puts lawmaking power elsewhere. delegation started in 1928. or at least in the supreme court, with the tariff act of 1922.
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this allowed the president to impose a tariff. it went to the supreme court, and the court said as long as there is an intelligible principle that the congress has given the president, it's not an undue delegation. he's just carrying out the law, not making the law. the court's application of that test, intelligible principle, has been exceptionally loose. invalidated only two statutes ever, and that was in the 1930s, because they lacked an intelligible principle. eventually, they held that it was -- the upshot is that there
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is no practical limit now on what the congress can delegate and therefore -- and thereby avoid responsibility for the results. many of these agencies have not only legislative but judicial power. they formulate their own policy, put out a regulation with the force of law, charge someone with violating it, and then judge them guilty, and it's all the same five people. or in the case of the consumer financial protection board, one person out of the agency. all of these powers are now executed by the same body, madison's definition of tyranny.
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that would retain at least some modicum of democratic control, but there are also independent agencies. the president cannot remove the head of the agency. the cfpb being an example where the president can only remove for cause, not policy disagreement. something like neglect of duty or malfeasance in office. the heads of these agencies in the truest sense are not accountable to any democratically elected official, and the independent
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agencies exist in a policymaking other word -- netherworld. the growth of independent agencies since 1935 has been enormous. that is today our primary source of federal law. the constitution requires that the president submit a treaty to the senate for ratification. a majority of two thirds is required. increasingly, presidents have been able to do executive agreements with other countries, and not submitting them to the senate for approval. the senate is happy to avoid its constitutional responsibility and not take the heat for having to vote on
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these one way or the other. a recent example of significance is president obama's agreement with iran. there are plenty of examples, but the larger point is that the design of the constitution was for the respective branches to be separated and jealously to guard their powers, but the congress has preferred to let the executive act so it's members would not have to be accountable. it falls into the courts to return to the original meaning of the constitution with regard to the separation of powers, as well as the other factors. here is the question. who's going to govern? the court or the people? the problem with substantive
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due process and equal protection , as the court has treated them, is that they aggrandize the court and marginalize the citizenry. we, the people in -- who make up this country, have no say in the debates that make up our time. if our politics today is more polarized than it used to be, the supreme court has its share of responsibility for that. in response to the separation of powers, -- through its disregard of the original meaning, it's not aggrandized itself, but rather acquiesced
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to the creation of a vast, unaccountable, lawmaking body. i don't mean to suggest that the framers wanted every decision to be made by the voters. that is exactly why they created a republic and not a democracy. they certainly did not create a government where the legislative branch would not be responsible for making law. we call chief justice marshall's discussion -- when the legislature exceeds its authority, its acts are to be held void by the courts. those benefits depend upon the court adhering to the text of the constitution, even when it
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does not align to the justices policy preferences. the choices are, either the original meaning of the constitution, or whatever the support -- supreme court thinks is good for us. the only way to participate in that choice is to influence the selection of members of the supreme court. i want to thank you for this opportunity to address an audience that's actually interested in the legacy of this great nation. thank you. >> [ applause ] >> dr. priscilla chan -- here was a portion of her conversation with the zuckerberg initiative that was -- issues like health, criminal
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justice, and education. >> this is not going to sound humble, but i think it's true of all of you in this room, i was a really good student. where you guys pretty good students? what that means is that i am really good at sitting in a lecture hall like this, listening to someone share information, write it down, and then tell it back to someone later. i'm still really good at it, and if i were in your seats, i would have a really good time. i'm having a good time up here, too. when i actually went to work with families, build a primary school, build a cvi, i didn't have any of that skill set. no one ever premiered me --
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prepared me for that. our current systems, even if we are wildly successful, don't actually prepare students to do what they need to do in the workplace. what my hope is is that we actually think about how we can change that. how we can educate our students in a way that prepares them for the real-life workplace. >> you can watch the rest of her conversation tuesday at 8 pm eastern on c-span. >> next monday, on landmark cases. in 1976, troy leon greg, a convicted armed robber and murderer, challenged his death sentence. his case and for others were considered by the supreme court.
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our guest to discuss this case, dr. carol steiger. she has argued against the death penalty in a number of cases before the court. she was also a former clerk of thurgood marshall. watch landmark cases next monday at 9 eastern on c-span, and join the conversation. our hashtag is landmark cases, and follow us on c-span. we have resources on our website for each case. a link to the national constitution center's and our active constitution, and the landmark cases podcasts.
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>> now a conversation with doug because -- he talks about the history of the supreme court, including his time as a clerk. it runs about 40 minutes. >> let me first off say thank you again, judge ginsburg. >> [ applause ] >> thank you very much. a command performance. let's talk a little bit about your own interest in the law. when did you first know you wanted to get into the law and pursue a career? >> right after christmas. i was out of school and in business for three and half


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