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tv   Constitutional Interpretation  CSPAN  July 7, 2018 8:45am-10:01am EDT

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interpretations of the u.s. constitution. we will hear from randy barnett of georgetown university and richard primus of the diversity of michigan. the event in the supreme court chamber was cohosted by the supreme court historical society and the john simon guggenheim memorial foundation. it is about one hour and 15 minutes. >> let me begin by expressing the society's gratitude to justice ginsburg. you have always been a very generous in giving of your time to the efforts of the society, when we have called upon you. thank you for taking time from your enormous schedule at this particular time of year. this evening comes about because of my deep and abiding connection to our two hosting
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organizations, the supreme court historical society and the john simon guggenheim foundation. my history with the historical society goes back over 25 years. my history with the guggenheim goes back a little over 10 years. each of these organizations has become a touchstone for me, for our collective american history. what could possibly be the common thread? it would be the constitution itself. my late husband, howard, purchased a copy of the united states constitution, september 17, 1787, nearly 30 years ago. during my stewardship of this document, i have attempted to provide much greater access to
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the public, the students, and to academics. it is magical to even touch the document when you have the opportunity to do so. not tonight. [laughter] through my connection to the historical society, i have learned more about the need to adhere to the words that were written in philadelphia in 1787. through the guggenheim foundation and their amazing committee of selection, they have found scholars who can reach into the constitution and more clearly defined the meeting -- clearly define the meeting of the words and the phrases that have influenced our daily lives for over 231 years. so just as we all have different opinions on a myriad of topics, so, too, are the interpretations of the constitution. i am looking at our two fellows here. i have become a knowledgeable collector, but certainly not a
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constitutional scholar. the guggenheim's constitutional fellows have become a great source of pride to me. the court and the historical society are the pillars on which constitutional decisions, past and present, are delivered to the public, for affirmation and discussion. several of the guggenheim fellows have spoken to the historical society in this chamber, before and after their fellowships were received. it is my pleasure to introduce the president of the john simon guggenheim foundation, edward hirsch. we call him eddie. [laughter] stand here while i give her -- give history, ok? a little history about the
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president of the john simon guggenheim foundation. he has been our president since 2003. he is a great advocate for learning and for literature. eddie graduated from grinnell college, where he earned honors in both academic and athletic pursuits. and athletic pursuits. already a poet and his college years, he went on ton to earn a phd in folklore at the university of philadelphia. , here joining guggenheim taught for 17 years at the university of houston. he is the author of nine books on poetry and is a prolific commentator on poetry. he has written columns for "the washington post." one of his books, which is entitled "how to read a problem and fall in love with poetry," was a surprise best seller.
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eddie has received many honors over the years for his work, a guggenheim fellowship, a macarthur fellowship, national book critics award, a presidential medal of honor from the government of chile, and award from the american academy -- an award from the american academy of rome, and in 2008 he -- and in he was elected 2008, chancellor of the american academy of poets. in 2017, he was elected to the american academy of arts and letters. eddie. [applause] mr. hirsch: i'm so honored to be with you. thank you for coming. the john simon guggenheim memorial foundation was founded in 1925 by senator simon guggenheim and his wife, olga, in memory of their son who died young, who they said had a life of eager aspiration.
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the foundation has had a singular mission ever since to , identify and give fellowships to the best artists, scholars, scientists, to free people to do the work they were meant to do. to me, it it is an emersonian -- to me, it is an emersonian commitment to american ideal. on self-reliance, emerson says, do your work and i shall know you. do your work and you shall reinforce yourself. or as william james once put it, the practical consequences of such a philosophy is the well-known democratic respect for the sacredness of individuality. since 1925, there have been 18,000 fellows in all scholarly fields in the arts, including 125 or so future nobel prize winners. we have been appointing fellows in law since 1936 and these fellows have included many
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notable scholars, including tu -- including mark tushna. tonight's program marks the 10th anniversary of the guggenheim fellowship. the fellowship is focused on the study of constitutions, ours and others, and the process of constitution making, rather than more broadly on law. it seems to me the mandate in constitutional studies is more important than ever in these troubled times. there have been 11 fellows since the foundation appointed to -- two fellows in 2008, to start our fellowship with a bang. those two are panelists tonight, richard primus and randy barnett. i would like to ask the other fellows by asking them to stand. we have holly brewer, david
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rabon, kristin stilts, please give them a hand. [applause] as you know, our fellowship and constitutional studies is the brainchild of my friend, dorothy tapper goldman, a trustee of the guggenheim foundation and supreme court historical society. dorothy's passion for the constitution is matched only by her great generosity, particularly to those who advance our understanding of the constitution. she recognized the constitution is the bedrock document of democracy everywhere. she is doing her tremendous part to sustain constitutional study. -- constitutional studies. it is an honor to be associated with her. [applause] ms. goldman: and now, it is my
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absolute pleasure to introduce the audience to justice ruth bader ginsburg. truly a privilege. as -- the justice is both a cultural and legal icon and many details of her life are well known to all of us. what i would like to do is provide you with a few highlights that i found very interesting. justice ginsburg's well-known emphasis on legal issues of gender equality got its start at the beginning of her academic career as a professor at rutgers law school. because she was previously denied a clerkship because she was a woman and then being paid less than her male law school faculty colleagues, justice ginsburg was motivated to cofound the first law journal in the united states to focus exclusively on women's rights.
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-- rights and to cofound the women's rights project with the aclu. from that beginning, she went on to argue gender-discrimination cases before the supreme court and participate in hundreds of cases in many different jurisdictions. justice ginsburg continued to focus on gender discrimination and equality issues during her academic career, moving from the faculty at rutgers to her alma mater, columbia law school. she became the first tenured woman faculty at columbia. she co-authored the first law school casebook on sex dissemination. while she was a columbia law school professor ginsburg met , and was inspired by her colleague, louis hankin, widely
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considered one of the most influential scholars on constitutional law and foreign policy in the united states. to further close the circle between the court and the guggenheim, we must note professor hankin was a guggenheim fellow, who clerked for felix frankfurter, the very justice who once denied ruth bader ginsburg a clerkship because she was a woman. professor ginsburg left academia in 1980 when president jimmy carter appointed her to the u.s. court of appeals for the district of columbia, where she served for 13 years. president clinton appointed her to the court in 1993. justice ginsburg has been a faithful supporter of the supreme court historical society during her entire tenure at the court. she has sponsored many lectures and many wonderful musical programs. she has been a great friend to
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everybody here at the staff, the officers, and our volunteers. earlier this year, she emphatically noted she had been a member of our society long before she was appointed to the court. throughout her career, justice ginsburg has worked to eliminate the barriers to success that women have faced, just as the guggenheim foundation assists scholars engaged in "any field of knowledge and creation, and -- in any field of the arts, under the freest possible conditions, irresponsible of race, caller, or creed -- race, color, or creed." i can think of no better match to this evening's program than justice ruth bader ginsburg, who will now present this evening's panelists. justice ginsburg. [applause] justice ginsburg: absolutely my
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pleasure. from our first encounter many years ago, dorothy goldman has people. of my favorite thanks, dorothy, for that fine introduction and appreciation to your many contributions to the well-being of the supreme court historical society. and, good evening to all gathered here. a hearty welcome to my workplace, the supreme court of the united states. [laughter] the the conversation you are about to hear, on modes of constitutional interpretation, is sponsored by the supreme court historical society and the john simon guggenheim
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memorial foundation. dorothy goldman was the catalyst in bringing the two organizations together. my colleagues and i applaud her initiative. the society, as many of you know, was founded by chief justice warren burger in 1974 to advance public understanding of the court and its role in our nation's democracy. the society pursues its mission in many ways, including programs like tonight's, and publications. here it is.
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but publications and one of my favorites is called "table for nine." it is about the supreme court's dining customs. [laughter] it's from chief justice today. three times a year the society publishes a journal for history. many of the portraits of justices displayed throughout the building where historical society acquisitions. for conveying to the public the character, traditions, and workplace of the court, my colleagues and i usually appreciate the society's endeavors. i am here to moderate this evening's conversation between
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professor randy barnett and richard primus. the honorable patricia -- of the the.court of appeals for d.c. circuit. judge barnett works for the ninth circuit and served as an advocate in the department of justice's civil division. later she was an exemplary member of the general's office. before her appointment to the bench, that is when [indiscernible] she has argued 32 cases before the court, and i attended
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performances,er and i can attest to her great skill in the art of persuasion , both on briefs and orally. her skill as an advocate is complemented by another strength. she is a second degree black belt. [laughter] in tae kwon do. she's been on the bench since her appointment to the bench in december, 2013, by president obama. to this court's good fortune, she is a member of the historical society's board of trustees. randy barnett is the waterhouse
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professor of legal feared he -- theory at the georgetown university law center, where he he teaches constitutional law and contracts and directs the georgetown center for the constitution. he was one of the two recipients of the inaugural goal guggenheim -- and a girl -- inaugural re guggenheim awarding constitutional studies. his pen is prolific, his books in print include most recently "our republican constitution, securing the liberty and sovereignty of we the people. under his leadership in georgetown center for the constitution, they have partnered with the society encumbrances on the variety of
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-- in lectures and conferences on a variety of topics including chief justice baughman chase. -- the man who wanted to be president. the 13th amendment and associate justice james wilson. richard primus is a theodore stained antoine collegiate professor or he teaches the u.s. constitution. like professor barnett, professor primus received the inaugural guggenheim award. among his publications he is the author of the american language of rights. professor primus worked for the u.s. court of appeals's second circuit and served as my super intelligent, uncommonly savvy
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separately. it's a good deal more about each of the participants, but that would intrude on time for the conversation you came to hear. i will leave off and ask circuit judge let --the circuit judge to take over the reins. [applause]
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>> thank you, justice ginsburg, for that marvelous and overly generous, at least on my part, introduction. it is a privilege to be with two of the greatest scholars on constitutional interpretation in the business these itsy -- these days. professor barnett and professor primus. thank you, justice ginsburg, for hosting this wonderful event. let me get straight on to business. nobody wants to hear me talk, they want you to explain all of the things i'm doing wrong in constitutional interpretation. can each of you take a few minutes to explain to the audience here what your particular theory of constitutional interpretation is, the role history plays in it in particular, and how you came to adopt that approach to constitutional interpretation.
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can i start with you, professor barnett? prof. barnett: sure. it is not to be here. -- it is a great pleasure to be here. it is an honor to be associated with the guggenheim foundation. it is a great honor to be the first recipient with richard of the guggenheim constitutional studies award. is a great boost in my career and the research i did under my fellowship relates to your last question, how i got into this in the first place. i will say that to the end. grateful to dorothy goldman for having established this. it is a great pleasure to be on the program with my friend richard primus. panels been on many before, we interact on social media, and we enjoy each other a lot and interact on social media. my basic approach is no secret. i am an originalist. that's my basic methodology. first, what his original is him -- originalism? i think it can be summed up in a
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single sentence, and that is that the meaning of the text of the constitution should remain the same until it is properly changed by amendment. so, i know this sounds like a very radical doctrine and comes as a big shock to people. let me say that again, the meaning of the constitution should remain the same until it is properly changed by amendment. fine butight say, "ok, , why should that be? by should the meaning remain the same until it is properly ?"anged to answer the question it is important to know why we have a constitution and what it is. i happen to have a copy of it here. so, what is this? this document, the constitution, this is not the law that governs us. it authorizes people to make laws to govern us. with the exception of the 13th amendment, which governs us, everything else is the laws that governs those who govern us. the constitution
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-- then the question is, if this is the law that governs them, they can no more change the laws that governs them without going through the change process which is the amendment process stipulated in article five. then, we can change the laws that they make to govern us. if we're driving down the street and we see an unreasonable speed limit, perhaps set that way so the government can get increased revenues, we cannot unilaterally change that's be limit to something we like better. there are no speed limits of that kind. we have to go through the regulatory process and legislative process to change this be limits. what applies to we the people with the laws that are imposed on us also applies to those that govern us. this is the law that governs them they have to go through the process to change it. that means people like judges should not be able to change the law that governs them. congress cannot do it, the president cannot do it, they can all not to do together until they go through the state and get that amendment ratified. that is the basic approach. that is why i think that is the right way to do it. because that is how our governors are governed by law. as for how i got into this in the first place, i came in from a somewhat unusual, i would probably say unique route. i was not an originalist. i was contracts scholar and teaching of contracts. i was a criminal prosecutor and became a contract scholar.
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i gradually got into constitutional law and i was not in a religion list. if i had to -- an originalist. i was working with my professor and the reason i wasn't was because i accepted the criticisms made of original ism up until then -- originalism up until then. that was some pursuit of the framers intentions. you would want to do with the
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framers do. this is summarized by the what would madison do in the constitutional appropriation. you hypothesize about what they would say in front of a particular case. the problem is, you cannot figure that out, what the framers would do. it is not a historical question what the framers would do about what they had never seen. it is a hypothetical question. it requires a construct. i was persuaded that this was wrong and original is him -- originalism is wrong. i can across a citation of a book called the unconstitutionality of slavery spooner and i'd , heard about him in college and had no idea he wrote a book like this. they wrote it in 1845. what could he possibly have said
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about slavery being unconstitutional before the 13th amendment was ratified? i had the library get me a copy of the book and it was a 280 page book. i read it and it was essentially what we would now today call a public meaning approach to the words of the constitution. he asked what do these words mean on the page, and it did these words ratify slavery? we all think they did. we all know they did. there are proslavery provisions of the constitution that we were taught about. spooner denied that. he said each one of those provisions never mentioned slavery. it refers to people that we think are referred to as slaves as other persons or people like that. they call them persons. according to his meaning, you cannot go behind the meaning of the text to examine the intentions of those who wrote it. they intended these things to mean slavery. you cannot go behind that to get to their illicit or evil, or unjust meaning or intentions to interpret it. as i read this book, i thought
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this is an originalism i could get behind. this might actually work. i started pursuing that idea. i did not know others had already independently pursued a similar approach called public meaning original is him --originalism. that was first publicly pioneered by justice scalia cautioning originalists back in the 1980's that they should stop talking about framers intent and start talking about original public meaning. what meaning to the words have to the general public when they were published, when they were issued. that is how i became in originalist. with my guggenheim fellowship, i used that to expand past spooner. he was far and away not guilty person, he and another person named william persuaded frederick douglass to this particular edition that this was anti-slavery and not proslavery. there were a bunch of other people, and i used my fellowship
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to explore those other people. i ultimately wrote an article discussing a dozen of what we would call these anti-slavery constitutionalists. they did not take spooner's position. most of them conceded slavery was in fact constitutional within the states that had them. they adopted the decision that came to be the hallmark of the new republican party. the constitution established a regime of freedom national, and slavery local. that is with the word of the constitution established. that is the connection with the guggenheim. >> fantastic. professor primus, do you believe in living speed limits? prof. primus: i don't even know what that would mean. [laughter] prof. primus: i came to the field of constitutional law in large part through the field of constitutional history. i studied constitutional law and a lot of political theories as
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an undergraduate and went to graduate school and did work in concert to show history -- in constitutional history. my beginning included a bunch of intuitions at home among originalists as a certain kind. it seems to mean that i could find a meaning of the constitution and, therefore, answers on how constitutional issues should be decided to understanding the original history. as i went, i came to think more and more that the historical inquiry of that kind was not a good way to settle temporary historical settings. -- questions, largely because i agreed with randy's views about the undesirability of certain kinds of change. judicially induced change. in other words, originalism, as many originalists understand it
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and has randy -- how randy has disrupted it is a device for -- in good faith understand it, it,as randy has described is a device for preventing officials from changing meaning of a constitution. i think it is important for also took reasons to hold the meaning of the constitution study -- steady. the trouble is the original meaning is not a very good technology for doing it. it seems to me what original ism -- what originalism is better at is creating change. this is something that i learned as i thought more about how history and constitutional decision-making interacts. decision-making based on original meanings often puts judges at a very difficult decision for reasons of the kind randy mentioned. it is difficult to read historical materials and
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conclude this is what they mean for the question in front of me. the framers probably did not consider the question in front of you. and the materials you are looking from, and face the get all to the question, they may speak in many voices. the interpreter is left with the scatter plot of data from which is necessary to interpolate. what is the best interpretation here? is what i'm trying to come up with an original meeting. -- meaning letting me decide this case how does these -- decide this case. how do these judges decide this? if the founders are also smart responsible people trying to do the same -- right thing, as for different possible interpretations or constructions of what the original materials mean, judges tend to choose the interpretation that seems to
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them sensible. prudent, wise, and after all, it would not make sense to attribute a position -- position to the founders that would not be sensible. the thing is, when judges think is sensible or wise changes over time. the intuition of judges is different. intuitions for 30 and 60 years ago are different. as the judiciary introductions -- intuitions changes, we tend to find in the ambiguities of the material that the founders left to us, our own preferred solutions because we read in a way that makes sense to us. it is hard to think of examples of judges in big contested cases being persuaded by the original
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meanings to do something that we think is not what they thought was a good idea working on a blank slate. it is easier to find judges producing the disagreement in the register of original meanings. that means that the proof of original meetings, it is positively provoking judges to read their own intuitions into the constitution, not intentionally. it makes the meaning of the constitution change over time. now, think about two kinds of original meanings, the original meaning of the constitution changing over time, not the actual original meaning, to the extent that the constitution or any text has original meaning. the meaning is locked in at the moment of origin. the cases are decided by something we can think of as operative original meanings.
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the operative original meaning is the original meaning as understood by the person making the decision. what do i think the original meaning was? sometime that coheres with the original meaning pretty well. sometimes we disagree. operative original meanings take over time because our intuitions about sensible solutions change over time. >> this is fascinating, but to make it real and practical for people, let's pick a case that i think everyone will know, brown v. board of education. a landmark in our national history determining everyone knows that segregation, public education, was unconstitutional, that separate but not equal under equal protection laws, so can you give a brief summary of
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how your approach would look at that question if it were coming up in the first instance and what you think the right way of analyzing and coming to the resolution of that question. you want to continue through that lens? prof. primus: sure. brown is a wonderful example of the dynamic i'm pointing to. when brown was decided in 1954, it was generally understood, common ground that the original meaning of the 14th amendment properly understood and not require the desegregation of public schools. this was a problem that the supreme court faced because they, by and large, wanted the right answer to be that the schools should be segregated. but a sense that that is not the framers of the 14th amendment had in mind, seems to stand in their way. there are lots of reasons for that. schools that existed were not desegregated after the 14th amendment. the galleries in which congress
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debated the 14th amendment were segregated by race, the civil rights legislation of the 1870's was interpreted as set aside by separate but equal. one assignment was in you make the original meaning of the 14th amendment required desegregation? he said, i'm sorry justice, i cannot do that. the court decided that, although it was not required by original meanings to do so, it could, on other grounds, desegregate. what happened in the next phase is a critical piece. today, most originalists believe in good faith. that the 14th amendment requires the result in brown. there are two different ways that they get their.
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some read the history of little differently. some say that this required desegregation of the schools even though people than did not understand it to do that. i said yes, that is what has happened. the original meaning of the 14th amendment has changed so that now, when people think that schools should be desegregated, it is possible to read original meanings and away for that result. because original meanings had a lot of play in them. the problem is, very few people in 1954 thought that. so we are saying originalism seems i could could do the job today, but it is not clear that people thought he could do the job done. prof. barnett: it's pretty clear that people did not think it could do the job in 1954, which is why the supreme court held it over for reargument on the subject and it didn't give them the answer that supported their conclusion.
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they never did say the original meaning of the text was against that. they said the historical evidence was inconclusive, and because of that, they could do what they were about to do. you could deny a relevance and got away from it. the principal problem there with an originalist argument and 54 was that people were using the framers intentions, or what is sometimes called original intended expectations --
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original expected applications approach, i'm sorry, and in this case, it was not hypothetical read if you ask a lot of what they thought of the 14th amendment desegregating schools, they would have been opposed or denied that. that was as far as the historical research took. it was not about the original meaning of the text itself. they were inquiring into the expectations of the people that wrote it. that is what the old originalism did in the originalism persuaded me to be an originalist denies what you should be. if you look at the text and historical analysis of the words of the text, not something done here off the top of your head. but, i think it is plain that in order to say that brown was unjustified on originalist grounds, usa plessy versus ferguson was justified -- you would have to say that plessy versus ferguson was justified. and if plessy is wrong, why would plessy be wrong?
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i think it is wrong because it was a law that was using the state's police power to do something and there was no good reason to do -- no good reason for that police power to be produced by the state. this said the state could do what they want in preservation of good order. no evidence was required that the state was solving a problem or that there was a problem. those not enough to satisfy the three clause operative clause of the 14th amendment. it requires some inquiry into the facts. the reason the justification of the court offered was a case decided five years after the 14th amendment was house, the slaughterhouse cases. they inquired into the facts that said you did not need to do that and, from now on, don't worry about it. interestingly enough, whether the 14th amendment would have justified -- whether the 14th amendment would justify desegregation of the schools was thought to be something that the republicans in congress who voted for the 14th amendment believed. that is the reason why they passed the civil rights act of 1875 that was eventually
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invalidated by the supreme court. the republicans passed that law and every republican in the house voted for the bill who voted for the 14th amendment. every senator won that voted for the 14th amendment and voted for the public accommodations law. a majority in congress in both houses of congress wanted to add schools to the list of public accommodations. they were blocked from doing so from filibuster rules in the senate and house. the house had super majoritarian rules. it was only because of the super
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majority required and they failed by a vote or two to get that, dead the schools -- did the schools not included in the act. none of this was known in 1954. partly because you really don't get an originalist answer unless you do the research and you know what question you are asking. that is, you are asking a question about original meaning, and if you ask the right questions and look at the evidence, you might get the right answer. prof. primus: his response goes to a really important difference between his approach and mine. i agree with his account of the 1875 civil rights act, but even if schools had made it into the act, it would not have made a difference because every court that construed the 1875 civil rights act construed it to be
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satisfied with separate but equal. to say that court understood the nondiscrimination rule to say you cannot keep african-americans out of theaters entirely or off trains entirely. but, the requirements -- there was no rule that counted segregation at all. it seemed to me that to say the correct, original understanding of the 14th amendment required desegregation, requires us to say that every court that adjudicated the set of issues, in the first several decades after the 14th amendment was adopted, got it wrong. it seems to me that is a difficult thing for someone who takes history seriously in the way that i think of history to think. i can think that that means the law is bad. but, a legal system in which every official comes to the same result, for many years, and we looking back generations later
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say they were doing it wrong, it seems may be no, we are missing something about what their law was and they knew something, and we don't like it. then the originalist can come in. in the story, to redeem the past, to say it is ok that you don't like what the content of the law was in the late 19th century because they got it wrong, it is a backward facing comment and similar sort of thing that spooner did. spooner was a change agent. spooner was not someone who wanted to hold the content of the law study. the content of the law on slavery was pretty well-known and people could spend their lives around it.
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it was evil, but it was known, and it was as stable. spooner is a genius and he would find a way to attack it and revolutionize people's understanding of the constitution. for that he appealed to a set of original meanings. original meanings lend themselves well to visionary change. they are indeterminate meaning you can pour new content into them, and they function as an appeal to the highest moral authority in our system, the founders. that is a wonderful combination for someone seeming to make a change. >> it is entirely possible for judges to be wrong. >> is that so? [laughter] >> it is important to keep in mind a distinction that has not emerged yet. i should have got this out in my opening remarks. that is the difference between deciding what the words of the
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text means and applying that to facts and circumstances that come before the court. that second step is a separate step. the name that constitutional theorists associate with that is constitutional construction. constitutional interpretation is to ascertain the communicative content or meaning of the words, what information is conveyed by this booklet? there is information in this booklet. what information is conveyed by this booklet? that booklet, too. the same words. [laughter] somehow i feel richard's book has different stuff than my book. [laughter] what is the meaning of the words in this booklet? but then you have to apply the meanings to particular facts and circumstances. and it is in the application phase, which is not the interpretation phase, that people can make mistakes. they can figure out what the meaning is, and when they take into account the facts as they understand them, reach a wrong conclusion because they have a mistake on the facts among other things. so let me take a good example of that. first of all, the slaughterhouse cases, which got the immunities clause wrong and applied it wrongly.
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and as a result of the slaughterhouse cases, the second section of the 14th amendment has ceased to exist in the supreme court or any other court. it says no state shall make or enforce any law which shall abridge the privileges of any citizen of the united states. that is what the 14th amendment says. if you came down from ours and somebody read you that provision, you would think that is important. and yet i can tell you from 1873 until today, it is not operative in the courts. one case has been decided on this basis, and one concurring opinion by justice thomas was decided on that basis, but other than that, it has been overlooked. that is a mistake the courts have made for a very long time. another mistake they made was the day after the decision of the slaughter house cases. they decided a case called gladwell versus illinois. it was on the authority of the slaughterhouse cases, which was decided the previous day, that they decided that, first of all, there is no right to pursue a
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lawful occupation. when myra went to practice law and was denied to practice law because she was a woman, the courts said there was no such right that we can recognize. if everything we said yesterday means anything, then she has no right here. she has no right to be claimed, so go away. there was somebody on the court that day who thought that was wrong. and that was chief justice salmon chase. he dissented in that case. he said that the chief justice dissents from the decision and all opinions, including the concurring opinion by justice bradley, who justified this on the basis of facts about women that we now know today to be completely false. so that, they made a mistake, in in applying the 14th amendment and both interpreting it, and applying it. >> that is a good point. and speaking of change agents, we have justice ginsburg, who was a great change agent as a practicing lawyer in cases involving gender discrimination.
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and so, where do your theories protection equal clause's protection against discrimination on the basis of gender? surely neither the framers intent or public understanding of the time of the 14th amendment being adopted, there is no 1875 legislation that was going to give women equal status. so how does your approach work on that issue? and do we have to go to privilege and immunities clause, or is it legitimate to have done it under the protection clause? >> all three clauses will operate in league with each other. and sometimes multiple causes apply to the same fact. they are not that discrete. i basically already telegraphed my answer by talking about bradwell. if plessy versus ferguson is wrong, then brown is right. if bradwell is wrong, the 14th amendment protects against
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irrational discrimination against women, which is what the equal protection clause has been from interpreted to provide that kind of protection. in fact, the dissenters in slaughterhouse, when they justified against myra bradwell, other than chief justice chase, dissenters in the bradwell had to justify the discrimination by citing the differences between men and women and the legal infirmities that women were facing. it prevented them from signing contracts, so how could they be lawyers? they had to bring a fact-based arguments come in the way justice miller did not have to because he already said there's no such right. the dissenters said there is a right and women are not being denied it. again, pretty much all you got from supreme court decisions, not from civil rights laws, but supreme court decisions
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protecting women today is a bar on irrational discrimination and intermediate or greater scrutiny of legislation to ensure it is not irrational. that is what i think the original meaning of the 14th amendment gives all persons, women and men, and minorities of all kinds and the individual alike. >> so you make a very attractive case, i think. right. you have explained that on proper original meanings, the constitution was anti-slavery, and the constitution required desegregation and some sort of sexy quality from 1868 forward, and it all makes me want to cheer. but are there examples, in your experience, are there examples or times when you have done the historical work in the careful, industrious ways that you do, and reached the conclusion that
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the constitution requires something that you wish it didn't? >> yeah, easily. it is easy to do. i've done that an awful lot. i don't like to opine on parts of the constitution that i have not done work on. there are lots of things i might disagree with. i just have not done the work. in the case of the commerce clause, which i have done a lot of work on, what i was hoping to find when i did the work on that is that the power to regulate interstate commerce was limited to the power to make interstate commerce regular, that is the power to facilitate it. the way contract law facilitates contracts, i was hoping the evidence supports the conclusion that that is the limit of the commerce clause, that is the means the power to regulate means the power to facilitate. it turns out it did not. it turns out the power to regulate included the power to prohibit. in fact, madison had a phrase for that, a prohibitory
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regulation, he called it. one of the reasons why they chose the language that had the public meaning it had was because they wanted to give congress the power to regulate trade with our nations. and that sometimes included, frequently included, the prohibition on trade in order to protect on markets. it was a protectionist measure. it empowered congress to enact protectionist measures that i would prefer were unconstitutional, but are not. i have a question for you, richard. and that is, if you were a judge in 1954 having to decide brown with plessy as your precedent, and the whole history of practice going back to the 14th amendment as your president, what would be your justification other than your own desires for racial equality for making the decision in changing precedent, if you couldn't have resource to an independent document greater
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than precedent, something called the constitution of the united states? >> so i don't think that judges should make decisions on the basis of their own idiosyncratic or contestable -- perhaps that is too strong -- their own idiosyncratic views. i think that should be avoided. right. i think that for the most part, precedent-based decision-making is valuable because it gives a lot of guidance to prevent judges from doing that. i think it's also the case that there are occasions, rare ones, when the view that the judges have isn't idiosyncratic in view. it is a widely shared view, at least among their profession. not necessarily in the entire society. and it is if you that there is really something important that the prior decisions have missed.
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and that could reflect a difference in factual understanding of the world, and it could reflect a difference in deep-seated values. i think there are limiting cases, not many, where those things are appropriate factors for decision. and, that our system is built to have them be appropriate factors for decision. >> one more question. if what you're opening criticism for regionalism were that there was original meanings and, i get that, but suppose there is an example where the meaning is knowable, so the text of the constitution really does have that meaning. do you think the judges are bound by the meaning where it is knowable or not? >> i think the question is less about knowability of the original meaning. it is more a question about the shared accessibility of the legal meaning. if the legal culture has a
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general understanding of what a constitutional provision means or some other source of law means, then it is delivering what we want in a stable legal system. it tells us how to order our affairs. we know what it is. and that is a very good reason to abide by it. what worries me is a situation where the legal culture doesn't think that a provision means a certain thing, and we have ordered our affairs on the assumption shared that it doesn't mean that thing, and an then an industrious historian or advocate, spooner or otherwise, produces a reading of historical documents that say you have all been doing it wrong, that is the piece that worries me. i am more or less what is called in the legal academy a common-law constitutionalist. like originalism, common-law
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constitutionalism is the surname of a family. not everyone is the same and is exactly the same thing, but common-law constitutionalism takes the view that we are decision-making by courts is concerned, precedent is the best guide to constrain the discretion of judges to hold legal systems of stable, to let people order their affairs. it is not succeed in completely eliminating discretion in judgment calls. no sane theory of adjudication does. shortcomingst the originalism, there are other areas in which randy and i agree, but in this domain where there is disagreement with us, my concern is that originalism
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lends itself more easily and more often to the change agent, not that my alternative methods never do. >> i don't want to step too much into our time for reception afterwards, but i have one last question again to bring this down to a more practical or operational level. and that is, what are the judges supposed to do? we don't have the time to study a particular provision of the constitution for months and months, let alone read all of the copious literature and even the fantastic writings of the two of you. we get cases brought to us by litigants who have briefed what they've read and argued what they argued. how can judges do what judges are supposed to do, and confront this constitutional question for which there is no governing precedent? [laughter] >> nobody wants to answer that one. [laughter] >> i will answer it. i will answer it. i think what we ought to have is an intellectual division of labor.
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and that is i think it is unrealistic to expect judges to be doing independent historical research. just as we don't, whenever you receive expert testimony, you're not a scientist. you evaluate experts who have to be qualified before they are allowed to testify in front of you. you rely on the knowledge base that is developed by others. i think the appropriate place for this to be hashed out is amongst scholars. in law schools, history departments, or independent scholars who are not in the academy. and that is where genuine peer review should happen. myself, when i read an article, that makes a persuasive originalist argument on behalf of some proposition, i read that and say, that is pretty plausible. i can't find any fault with it. but until that is literally peer-reviewed, not peer-reviewed by a journal, but other people in a field to know something about that particular topic, and i hear that adversary system
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applied to that contention, i do not think i can reach a conclusion about that myself. so, as originalism is legitimated, hopefully over time, there has been and there should be more and more attention paid to the meaning of each of the provisions of the constitution. and in fact, it is not that big a document. we can get through them all. there should be attention paid to each of the provisions over time, and that research should be vetted and peer-reviewed and then judges can rely on that the way they have relied on that in major cases decided in the last five or 10 years, meaning that concern the original meaning of the second amendment, the right and keep and bear arms, the original meeting of the recess appointments clause. in cases like that, the justices don't have to originate their own research. they rely on research done by others. >> i think judges should mostly do the thing that is the core skill of appellate lawyers, which is reading cases in the
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and applying precedent. it is the skill that it is built to do. it is one of the features of our system, that the people who are asked to make those decisions are trained as lawyers and not historians. the constitution is a kind of sacred text. it's meaning is likely to be protean when it matters in ways that has also been true of some other sacred text. we will never stop running out of constitutional disagreements with each other. and when we do, i doubt that we are going to stop generating disagreements about the constitution's original meaning. >> i need to add something. [laughter] >> and that is that only in a very small fraction of constitutional cases is the meaning of the text pertinent.
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mostly what is pertinent is implementing doctrines that have been developed by courts over time to implement the texts. for example, the first amendment says what it says about freedom of speech, then there are doctrines that have developed, for example, analyzing time, place, and regulations of speech. the first amendment doesn't say anything about time, place, manner, and regulations of speech, but that's what the courts have implemented what our constitution does say. that is the reason, and here is why richard and i have common ground. mostly what courts do is apply the doctrines they have developed in the past to implement the meaning of the text. they do not go back to the meaning of the text and do it by that way from a means. they do it by implementing doctrine or what is called constitutional construction. and that will evolve over time. that is your true living constitution. the living constitution is how doctrines that have been developed to implement the constitution will evolve over time. then they are to only be
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reconsidered if they are undercutting or inconsistent and not faithful to both the letter and the spirit of the original constitution. and that is going to be an unusual circumstance when that can happen. >> you sure can. [laughter] >> [inaudible] how would each of you have virginia?ving versus >> yes. >> [inaudible] so loving versus virginia is a 1967 decision. holds the supreme court hole
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that the state of virginia cannot criminalize cross racial marriages. it is 13 years after brown. the day that brown is decided, every good constitutional lawyer in america knows that the path to loving is open and the courts spend 13 years ducking the question, and then decides it in loving. i think whenever we are asked how would you have decided some case where we all know who the heroes are, it is so easy to think, well, of course, i would've done the right thing. i would've dissented in korematsu. and again, a plea for humility as we think about history. we don't know what we would have done. but if the question is, who i am today, if i were to do that, my view would be, by the time of loving, we have the equal protection principle of brown.
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the law in loving made the criminality of an act depend on the race of the actor. right. that, it follows from the principle of brown and its understanding of equal protection, can't be. >> professor barnett. >> i think on richard's approach, it is difficult to know what loving wouldn't have come out the other way before brown v. board of education. so without brown been decided, loving is wrong, and in fact it is the way it has been done, everybody was wrong about it. legal practice and president said it wasedent constitutional, so it must be constitutional. it only became unconstitutional on this account after 1954, 13 years after i think if loving is 1954. correctly decided, as it clearly is in my view, it is because it was unconstitutional the day that the 14th amendment was enacted to irrationally and arbitrarily discriminate against
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citizens of the united states , between citizens of the united states. just because people back then didn't think that that was a irrational doesn't mean it was rational. and that is what has changed between then and now, the application of that principle, byring arbitrary treatment the government of the people. each one of us are part of the sovereign people and we are entitled to be treated fairly and non-arbitrarily by our servants and government. and that was true in 1868 and true all the way through. and it is only people's opinions on whether that was irrational that has changed, not the constitution itself. >> here again is a difference between how randy and i think about history. in 1883, the supreme court decided the case called pace versus alabama. pace v. alabama upheld a law restricting interracial marriage.
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and it did so unanimously. so if someone were to ask me, if you have been a justice at the time of pace, what would you have done? if i say i would've said no, that is wrong. i would have done what the court did in the 1960's in loving, i think i would be acting in a self-congratulatory manner that i can't really justify. i would be attributing to myself a wisdom out of time not available to the people who actually were of the professional class at the time. i'm fine with the proposition that the content of the law at the time of pace was morally objectionable. i have a difficult time with the idea that, for decades and decades, the whole legal profession can just be wrong about what its law is. that is partly as a matter of
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humility. it is also partly a matter of democracy. part of the promise of law in a democratic system is that people can know what the law is, and, if we have to think that the whole legal profession in the and the citizenry that they serve were just systematically wrong all the time, they were unable to understand what their law really was, i think that we are working with a problematic conception of what makes the law right and wrong. >> we have a constitution to protect us from the majority. we have a constitution to protect us from democracy when democracy is doing something fundamentally wrong. now it may be that under the current -- the politics of any given day, including the politics that chooses judges in those days, that people are not going to see it that way, and if they see it that way, they be may too timid to say so. but justice harlan was not too
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timid to say so in the civil rights cases, and justice chase was not timid to say so in the bradwell case. so we do have dissenters in those days who are looking at the very same constitution and saying the majority is wrong, and the legal profession is wrong. and i think that is why we have a constitution that is the law that governs those who governs us. and i would include the legal profession in the group of people who purport to govern us. >> i want to make an observation , and i think it is one that randy will agree with it. but i cannot speak for him. i think it is a way for our positions differ from a normal, off-the-shelf conception that a lot of lawyers and other lawyers rs have about how a common-law constitutionalist and originalist might think about the law. and that is this. randy is the originalist here. and he offers a set of
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interpretations on which the law is going to vindicate his and our shared moral intuitions all or almost all of the time, much more than mine will. right. mine, when it looks back in history, will more often say, i don't like it, but i have to acknowledge that that was the law. what is interesting about this is that in the general civic culture, originalists are often criticized for being heedless of what our values are. randy is not at all heedless of that. and common-law constitutionalists and others who are not originalists are often criticized for not being willing to know when something is the law and not just their view. but, in this conversation, i'm that person. >> i think we can keep going for quite some time, but i will get in trouble if i do that. so how about we just all give a round of applause to our wonderful panelists? [applause]
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>> so you might now ask yourself, what is the mode of interpretation? it is to each person to interpret. words and phrases are interpreted differently by everyone. so thank you to justice ginsburg. primus,professor professor barnett, it has been a lovely, illuminating evening. i would like to remind you there is a reception that follows downstairs in the lower reception hall, and i have been asked to tell you that when you are down there, the gift shop is open and you might find a nice father's day gift. [laughter] >> so please join us downstairs.
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we are adjourned. and thank you very much. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2018] announcer: this weekend, we take you to lubbock, texas with the help of our cable partners as we explore love x literary scene. literary scene. we look at conservative growth and a battleground region. >> federal resources are being poured in to the south and southwest to create this new
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society that is fighting communism abroad and pursuing free market dreams at home, and it creates this kind -- in the southwest the reinforces these ideas of american ingenuity, hard work, and a commitment to fighting. sunday at 2:00 p.m. eastern, we visited the buddy holly center and hear about his musical legacy. >> the city is proud of the fact that he was born and raised here , and that the center is here to keep his story alive, to keep his music alive. announcer: then a visit to the vietnam center and archive located at texas tech university.
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the center is home to the largest collection of vietnam-related material outside the national archives. >> we have a lot of different types of equipment that veterans would carry, the things they one where that would protect them from shrapnel. working with our cable affiliates, as we explore america. week, "american artifacts" takes you to places in american history. next, we tour the "driving america" exhibit at the henry ford museum in dearborn, michigan. transportation curator matt anderson showed us early

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