tv Landmark Cases Launch CSPAN February 26, 2018 12:46am-2:39am EST
legislative business. on the agenda, a bill to help trauma centers and another that would allow indian tribes to develop their own amber alert system. on c-span 2, the senate is back for the annual reading of george washington's farewell address. then senators consider the nomination of elizabeth branch to be u.s. circuit judge for the 11th circuit. on c-span 3, a look at the federal budget process with members of the house and senate budget committees. later, deputy attorney general ron rosenstein talks about law enforcement at a conference hosted by the financial services roundtable. the national governors association wraps up its winter meeting in washington this weekend by hearing from the head of ibm. that is coming up a bit later. next, we take a look at the 12 supreme court decisions that
will be featured in our new season of landmark cases, which begins tomorrow. [applause] >> ladies and gentlemen, welcome to the national constitution center. beautiful. that is so inspiring. wonderful live c-span audience, you can see that the great members of the national constitution center are inspired i this nonpartisan mission of constitutional education and believe it is crucially important for citizens to educate themselves about the constitution so american democracy can thrive.
in this mission, we are so excited to be partners with c-span. we have a wonderful collaboration. landmark cases, which describes the human stories behind some of the most important supreme court cases of all times. that series was inspired by the comments of justice ruth bader ginsburg at the national constitution center a few years ago, where she said how inspiring it would be to hear those stories so people can relate to the cases. series was such a success that by popular demand we are launching tonight landmark cases season two -- hooray. [applause] >> and we have a series of new cases, and we are going to talk about the human stories, and to describe them, we have a dream team of respondents. i'm going to introduce them in a
last week we had this wonderful event with justice ginsburg. we talked about gender equality and the future of the constitution. program, ofwnhall which this program is one. coming up later this month, we have dean heller gherkin from yale law school. how the right and left can unite around federalism. march 15, joseph ellis and john meacham will discuss renewing the founders' promise. march 20, i'm so excited, the hardcopy of this thrilling new book about an underappreciated constitutional hero, william howard taft. judge ginsburg will interview me about our most judicial president and presidential chief justice, and a man who lost 75 pounds on a paleo diet after he
left his unwanted presidency. now it is my great pleasure to colleague, friend, collaborator, visionary head of c-span, susan swain. [applause] note to self, never follow jeff rosen at the podium. happy presidents' day. we are going to talk about the supreme court tonight. what could be more fitting than one of the most important responsibilities that presidents have during their term in office, to select judicial appointees to the supreme court? it is really very appropriate. i want to echo jeff rosen's comments about our relationship. as long as there's been a national constitution center, its mission so much mirrors c-span's nearly 40-year-old educational nonpartisan public
affairs charter, so it was a wonderful collaboration. during the 2016 conventions, we set up our studio here and had that beautiful view of independence hall. i'm a native philadelphian, by the way. so nice to be home. as jeff rosen said, they were kind enough to invite my colleagues and i to the national constitution center board dinner in washington a few years ago. the story that ruth bader ginsburg was of loving the virginia. how compelling it was to think about mildred loving and her husband in the bedroom and the police breaking in because interracial marriage was outlawed in virginia. that poignant human story resonated with us. we came back to our office and said, why don't we take on the cases that have dramatic human stories? working with the constitution center, we collaborated on our first set of cases.
it is hard to know when we have a hit, because we don't have any ratings, but we had a lot of good feedback. the programs are interactive. we had a lot of people phoning in and sending tweets and facebook messages. we liked it. that was the best part of it. what can be better? you are learning something, you work with great people, and you are getting positive feedback. was over andtion we were looking for another project, this was a natural for us. once again we have chosen 12 cases and we are starting all the way back in 1819 with mcculloch versus maryland. we're going to end with 1978. we going to learn a little bit more. alan bucky challenged affirmative action in the state of california. we chose cases that are not just
historically interesting, but also relevant today. you are going to be looking at cases that deal with wiretapping and civil rights and free speech, the right to privacy, things we are still talking about and debating today. you will learn a bit of judicial history, but you will also think about how these cases continue to impact our society. a quick note about my colleagues. this is a lot of work for us. congress has been keeping us quite active. a few of us have taken this on as a labor of love. my colleagues are here. could you wave your hands so people see who you are? mark is our executive producer. ben is producing the series for us. nate is next to him. he's working with us on a week to week basis to line up the guests.
randy is one of our field crew people. .e are sending him out he's going on location to the personal stories, the hometowns of where these cases took place, and getting video, visiting chinatown, going to des moines for tinker versus des moines school district. you will see the places where these cases took place. finally, our production assistant. we also have a big technical crew. the series starts next monday night at 9:00 p.m. eastern time. minutesbe live for 90 and we will go for 12 weeks. we are hoping to have you in our audience. phone in questions or send us a comment and make it interactive. your questions really make the discussion. thanks for helping us kick it off tonight.
thank you for your enthusiasm. i'm going to turn it over to jeff rosen. [applause] thank you so much, susan. susan is a masterful moderator and it is such a pleasure to learn about these incredible cases. you are in for a treat. i hope this will be a constituted -- concentrated constitutional feat. we have two of america's leading experts to take us through these cases, to learn together and to spread the light. is america's teacher of the constitution. he was my teacher of the constitution. he was my first teacher in law school. he has spread his wisdom and knowledge to me and to hundreds of thousands of others by means of wonderful technologies. books,e author of many including "the constitution
today." he is sterling professor of law and political science at yale. leading constitutional methodology that some have orled the new textualism original is in for liberals, that argues that the text and history of the constitution should lead to results of different political balances. joining him in this incredible discussion is michael paulsen, chair and professor of law at the university of st. thomas, author of numerous books including the constitution, and introduction, which samuel alito called solid, reliable, interesting, informative, and a lively tour of the constitution. things from a more hamiltonian and originalist
perspective, and i just learned in the green room that akhil and mike were law school roommates. imagine theseu brilliant scholars of the constitution did in law school? they debated the constitution so heatedly that they would follow each other into the communal restrooms when they were brushing their teeth and mike would argue that akhil was a living constitutionalist and akhil called mike and originalist. i hope your teeth got brushed, but i'm sure the debate was fascinating. let us jump right in. we have to use every moment of this precious time to learn together. we are going to begin with mcculloch and maryland, 1819. i need my constitutional reading glasses and i think we need the text of article one.
there may be a clicker. here it is. i haven't tried it. the congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers in the government of the united states. 1816, the second bank of the u.s. is created here in philadelphia. there are branches in a bunch of cities, including baltimore. the maryland legislature passes a bill taxing out-of-state banks. the question is, does congress have the authority to establish the bank. did maryland law unconstitutionally interfere? has manytice marshall's memorable lines, including, the power to tax has the power to destroy. he also says that the 10th amendment to the constitution
doesn't include the word "expressly," and this is evidence that the constitution doesn't limit congress to doing those things listed in article one. you have called this the most central case in our cannon. you said, i teach my students mcculloch and maryland before marbury versus madison because i think mcculloch is a better example are of legal craft. why is mcculloch so important and what do you want our audience to know? constitutional law isn't just about what the rules are. important, the how questions. how do you do constitutional law? how do you make an argument? what counts? what about text? what about history? what about the structure of the constitution as a whole? mcculloch is a beautiful example
of all the different tools and techniques of proper constitutional analysis. constitutional analysis. if i want to teach my students how to do constitutional law, how to make >> might, you also have hype for mcauliffe. that itbook, you say has relevance for the court's decision to uphold the affordable care act. tell us about how it has come to stand for a broad interpretation of national power. >> you not think that a case about taxing of a bank would be such exciting floor, but it really is. goesis a controversy that
to the root of how broad the national governments powers are. it goes back to hamilton versus jefferson. i think i have seen this debate be created in the musical hamilton. i will not do any wrap. [laughter] john marshall, in upholding the constitutionality of the bank, a sickly plagiarizes arguments alexander hamilton made to george washington to convince him the powers granted to congress should be construed for all they are worth. the idea of the necessary import clause means that the constitution grants congress a broad sphere of powers. the power to create national bank is not one of the specific force. congress,e to reckon the creation of a bank of the united states was necessary and
proper for carrying into execution the other broad. foundational to everything that congress has done. many people think congress has gone too far, but all of today's controversies really go back to the didn't of macola versus maryland. or to taxes that were to destroy. was taxing the operations of the banks in the united states. constitutional been a state can't interfere with it under the supremacy clause of the constitution. national lobbies and consistent state law. it is a wonderful case for not only how broad congress's powers
are, the relationship between state and national government. >> i am so tempted to take another round on this. i want to make sure we get to all 12 cases. i'm going to resist temptation and we will leave time for questions afterward. it time for another amendment. a really important case. this is a big one. the 14th amendment to the constitution turns 150 this july. it is the cornerstone of the achievement of the civil war. let's read it and think about each of these clauses. no state shall make or enforce any law that shall abridge the immunities of citizens of the , nor shall any
state deprive any person of life, liberty, or property , norut due process of law deny any person within its jurisdiction equal protection of the law. the case we are talking about now is the civil rights case of 1883. the civil war over, and it is time for reconstruction. charles sumner, the author of the bill, is so committed to this bill, on his deathbed he , my bill, my bill. in 1883ew years later the supreme court strikes down and holds it unconstitutional, that it exceeds congress's authority under the 14th amendment. there is an amazing human story
in this case. justice holland has writers block. he does not know what to say. he is so upset by this. the silvernds , she puts the info on his desk, they come home from church and he finds the inkwell, and suddenly as a overcome by spirit, he writes this spectacular document. that is a civil rights case. there are some much to say about this, but i want the audience to understand the legality. what was the grounds for the dissent?
>> let's start with harlan's dissent. think the dissent channeled john marshall, because what did john marshall say? congress should have brought power. the constitution does not say bank, air force, individual mandate, but that congress should have broad power when implementing the great purposes for which the constitution was established. all,nal security, above and a bank is useful for national security. after the civil war, the federal government is basically given a new competence, a new focus, civil rights. slavery.amendment and
the power to pass the appropriate legislation. the work appropriate is actually taken from macola versus maryland. they also have language at the end of the 14th amendment. john marshall hollen says what was the basic problem that generated the reconstruction amendments? congress has brought to try to end racism. the sentence saysshall, right before that sentence is one more that is pretty important. all persons born or naturalized tothe united states, subject the jurisdiction they are in, are citizens of the united states.
anyone born in the united states is born a citizen. we are all born equal. we are all created equal. equal, andll born congress has the power to enforce this, harlan says congress should be able to prohibit race discrimination in public accommodations. hotels, theaters, all the rest. what does the majority say in response? public accommodations are owned by private persons, they are not the government. it says no state shall, and congress does not have broad power to regulate non-estate actors.
the 14th amendment doesn't just sayshout, it says everyone is born a citizen. that is light in my lifetime and the lifetime of some of you, congress needed to free pass sumner's bill.- >> mike, akil describes so well how the citizenship clause of the 14th amendment. accommodationse have the nature of quasi-public entities. do conservatives believe that
the majority was right or parliament was right? >> i do not think i can speak for all conservatives here, as i think the civil rights cases were wrongly decided. here is the argument that is usually based. akil capture this pretty well. amendment is a restriction on what state governments can do. the 13th amendment prohibits slavery. one of the arguments for sustaining the civil rights case, is that it was in forcing the prohibition on slavery. the supreme court rightly said that is going beyond pivoting. -- prohibiting. slavery is something different than discrimination. i think the argument that
motels, railroads, or look accommodations and therefore part of the government is wrong. the origin of the that the 14th amendment is a restriction on what state governments can do. here is where i end up disagreeing with the result of the supreme court. congress has the power to pass laws enforcing the position on states, denying people action. there is a sense of the state's failure to protect equal rights is an affirmative ground which congress could prohibit a failure. putress could step in and where the states have dropped off. i think that is the most mostasive reason where
civil rights cases are actually wrong. it is interesting that our on which the civil rights act of 1964 was sustained was a commerce or, that it was necessary and proper to carry into effect the commerce. it is interesting that the enforcement of civil rights ultimately rests on the congress to regulate private, commercial and not birth to enforce full protection of the law. what irony. >> it is indeed irony. our next case is 1880 six, a
mere three years after the civil rights cases. generally, this is not a. this is an exception. it strikes down laws aimed at closing laundries that are owned by chinese americans in san francisco. it was the first case to use the equal protection clause of the 14th amendment. is a unanimous decision, and the case where there are lots of migration by chinese people to the u.s. during the gold rush. the city of san francisco wants to close down laundries and passes this law which gives the board total discretion of who gets a bit. permit.ets a the chinese do not get a single
permit, and the supreme court says this is an unequal enforcement of the law. if the law is applied and administered by public authorities with an unequal hand, to make unjust and illegal ,iscriminations between people the denial of equal justice is within the prohibition of the constitution. >> one thing i would like everyone to notice, since we have this language on the screen, is that privileged and immunities are protections for citizens. what are basic privileges? say free speech, free press, free exercise of religion, stuffed in the bill of rights. would that include
due process? why did they not say due process? here's why. due process protects not just citizens but persons. that would be aliens. this was an amendment not just about protecting citizens rights, but protecting aliens rights, that is why the word person appears there. in san francisco some of the bolts that were affected were actually not u.s. citizens, that would be immigrants from china, that atoday think violation of equal protection is where the law itself says whites are treated differently than blacks or men to women.
you are entitled to the protection of equal laws. and that is key. when you read it, it says equal protection of the laws, and whatever laws do exist have to be enforced in an evenhanded way. this law was not. it did not say anything about race, but in application government was treating people with yellow skin different than people with white skin. that is this language of an equal hand. they were being denied equal protection of law. >> any dispute about the correctness? what is the significance of this today?
>> no disagreement at all. this is a case oddly about architecture. ordinanceancisco required special licenses if you operated a laundry in a wooden building. the problem was, in san francisco at the time before the turn-of-the-century, almost all of the buildings were wooden. the overwhelming number of chinese operated laundries were in wooden buildings. was that it was enforcing it in a blatantly discriminatory manner. ofy one chinese laundry out hundreds was granted permission to continue to operate.
i love the principle that a law can be neutral on its face, but if it is discriminatory enforced that could render a seemingly valid law unconstitutional. is now time, ladies and gentlemen, for plessy versus ferguson. who has heard of plessy versus ferguson? right. we know this infamous decision that withheld a law that required separate but equal, supposedly, no road cars. -- railroad cars. plessy versus ferguson ushers in the jim crow era. the case is so important because it was overturned in brown versus board of education, where
thurgood marshall read john before hepinion argued plessy versus ferguson. john harlan's opinion has come to be celebrated as one of the greatest prophetic statements of liberty and equality in constitutional history. thegoing to read from it beginning. he goes on to say the white race deems itself to be the dominant race in this country, so it is in terms of prestige, wealth, remains true to its great heritage and holds fast to its principles of constitutional liberty. say, in the on to
eye of the law, there is in this country knows of. dominant ruling class of citizens. casteec --as here. our constitution is colorblind. citizens are equal before the law. >> let's connect dots. all citizens are equal before the law. here, that sentence everyone born in america is born a citizen and therefore an equal citizen. that first sentence which overruled dread scott is what he
is channeling. he is channeling, in a way, john marshall, because remember, he got the civil rights cases of 1883 were wrongly decided. he thought congress could prohibit race discrimination in railroads. when the federal government says one thing, states cannot do the other thing. if harlan had simply been lawowed, the congressional would have been nice and easy. congress already said no race discrimination in railroads.
but he lost in the civil rights cases of 1883. but he was channeling john marshall, and to us he anticipating? thurgood marshall. i think it was in this case he used the inkwell. here was what he says and it is amazing. dissent, and she says i predict that this case dred to be seen as another scott. we do think today that his
dissent is really the right approach. with him, should be as mike and i are, in the civil rights cases of 1883. today's civil court with him, as mike and i -- today's supreme court cites those cases was strong approval and i think shame on them. >> i want our audience to understand what justice brown's majority opinion means. anyone brown said if objects to separate but equal that is the fault of african americans. it is nothing inherent in the segregation itself. wasice harlan's response everyone knows what the real purpose of segregation was, to degrade and humiliate african-americans. was harlan truly right?
>> harlan was clearly right, and plessy was one of the most clearly wrong cases ever decided by the supreme court. it is possible for a supreme court decision to have enormous public support, and enormous majority support, and still be a flagrantly misunderstanding of the constitution. one of the lessons of plessy , this is 1896, during the reconstruction. implementations of the 14th amendment. separation, no distinction, discrimination
between the races as a matter of law. by the 1890's that idea is lost to the supreme court. here i've spoken angry response from a keel. --from ahkil. much of the reasoning of justice brown's up and plessy versus ferguson is that we must leave the constitution to be socially reasonable and in tune with the times. and the tune of the times have become segregationist. it takes brown versus the board of education over 70 years later to overrule that precedent on the basis of the fact that we all know the laws should be the same for everyone. ishink the ultimate lesson
the same as the good line in justice harlan dissent, that our constitution is colorblind. constitution separates on the basis of race, that should be regarded as unconstitutional. i think that was the original meaning. >> we will return to that important principle later, just a bit. now, and our thrilling to her of the constitution, are going to fast-forward to griswold versus connecticut. it is exciting to be able to introduce you to this crucial
case involving the rights to privacy. the case that became the foundation to roe versus wade. connecticut is the only state in the nation that still bans the use of contraceptives for married couples. the question is does the constitution protect the right of marital privacy against state restrictions? at least three basic arguments for striking down of the law. has ae william douglas very freewheeling opinion for the majority.
i heard a little chuckle in the audience. those of chuckle among the law clerks as well they first read his draft. justice hugo black said the right of married couples to associate in bed is new to me. he thought that douglas was being too freewheeling and conflating. justice john marshall hall and -- justice john second, holland the says that there is a right to privacy in the home perhaps rooted in the fourth amendment.
it might be intrusive to enforce these marital privacy laws. suggestionis also a in justice harlan's up in that this law is so unusual, the only one of its kind in the country, but the history and traditions of the country have involved in a way that has recognized marital privacy as a right under the due process clause of the 14th amendment. >> you mentioned this word evil evil --evolve. some people say john marshall is talking about evolution.
john marshall does not believe in evolution. john marshall believed the animals entered the ark, so he is not an evolutionist. i am halfway in between. here's the thought. if the constitution prohibits something, we should stick by that. it says equal, we should always do equal. equal, and gosh darn it, segregation is not equal. evolve awayshould from civil rights. than may be more rights are specifically mentioned, never less but more, then the question is how do you find those additional rights?
equal, and segregation was not equal, so it is invalidated. harlan thearshall younger did have an idea. look at state practices, state constitutions, andother than connecticut had made it a crime for married couples to use contraception in the home. right.s an unenumerated the person, by the way, who first taught me that the keep was john marshall holland the youngers, theother than was one of did this,
my former students named jeff rosen. >> it was you who inspired me to dig into the history and come up with a principal means of identifying which rights are unenumerated. simply send are some rights that are protected even though they are not written down does not tell you how to identify these rights. is life so important that you learn about the methodologies of constitutional interpretation. mike has been famously sized by conservatives. chief justice john roberts said it was correct. correcthink griswold is under any approach, and if so, which approach is correct?
>> this one is going to keep me from being confirmed to the supreme court. i actually think griswold is wrongly decided. things i tried to get my students to do is to not read the constitution with their beliefs. i tried to get them to come to the realization that the constitution does not grant a right to everything you think the a good idea, and does not prohibit everything you think is a bad idea. the text has an objective meaning. griswold is a classic placef a result seeking a of reason and not finding it. he finds the third amendment right to not have soldiers quartered in your home, that
sort of supports it, too. he keeps going. the fifth amendment, the ninth the existence that a bill of rights does not take away your state law all right's. extrapolates that this idea would be a really good right. one of the standard lawyer tricks you are all taught is that if the text does not support you, you sort of abstract from the text. as a descriptive matter, nobody nominated to the supreme court today, would ever say griswold is wrongly decided. so i am safe from that job.
how theteresting popularity of the result has driven, and to some extent distorted, our approach to constitutional reasoning. most people would actually support the result, but i think jeff is right. that becomes a critical path to the creation of a broad right of privacy, even creating abortion-rights. point people say, wait a minute, where did this right to abortion come from? how does privacy sustain a constitutional right to abortion? for the time you get to roe versus wade in 1973, you look back at griswold and say this is probably where constitutional reasoning took a turn decisively as a textolicy driven
driven approach to constitutional law. >> thank you for your courage in youacing a result that, as say, no one nominated to the supreme court is willing to say today. the idea that certain outlier and some books -- some laws are on the books of their ,otal outliers in the history they should be able to be struck down. or to be the possibility that mike is right and that griswold is simply constitutional law. from contraception we now turn to the death penalty. we are going to talk about a case called greg versus georgia
from 1996. it is such a dramatic one because the supreme court moves within the space, and less than from holding that the death penalty is categorically thatstitutional to holding the georgia death penalty and is is constitutional not cruel and unusual punishment under the eighth amendment. about the cases in america's unwritten constitution , and say in the 1960's actual executions drop to zero and the court seems to hold the definitely unconstitutional. more about that, and wasn't right for the court to be so responsive to the winds of
public in? >> let's again connect the dots. i think griswold was right. and griswold there was one state, a weird outlier state, that made it a crime for married couples to use contraception. and the court struck down an odd law that was out of sync with national norms. in roe v. wade, this court struck down a law in about 48 of 50 states. only new york actually met roe v. wade standards. if you are doing that you better be able to show something clearly in the constitution. now let's look at the death penalty. the constitution uses a word
unusual, cruel and unusual punishment. that might be an invitation to count. at the time of the founding it was not unusual to put pickpockets to death. over time a number of states decided that seemed extreme. at a certain point putting a pickpocket to death becomes unusual, maybe cruel and unusual, and then unconstitutional. in 1972 there was a year in which nobody was executed. people were convicted of death penalty offenses, there were lots of people on death row, but nobody executed. the court thought they were civilized, it has become unusual, we proclaim it is unconstitutional. one of the reasons no one was executed was that courts had made it difficult to impose these capital punishments and the american people weren't quite there. they pushed back tremendously after the furman case in 1972 with a whole round of new capital punishment laws.
the court did backtrack in 1976. i think plausibly because if the point is to look at actual state practices, is a certain practice genuinely unusual. a whole bunch of states fairly recently passed new death penalty statutes. that is new information and evidence about national ideas on what is fundamental or not. counting is a way of thinking about two things. one is unenumerated rights. if something is in the constitution you enforce it whether it is popular or not. plessy says not equal is not constitutional. if it is not an enumerated right i believe there are unenumerated rights. looking at a word like unusual.
maybe a word like reasonable might invite recourse to social norms. that is the answer. >> my crucial question which goes back to your law school toothbrush debates with akhil. can the constitution evolve when it comes to the eighth amendment? justice scalia said when deciding if a practice is cruel and unusual it might be appropriate to look at state constitutions and see whether states recognize something is constitutional that was not at the time of framing. does the meaning of the eighth amendment remain unchanged and should it be interpreted in light of the founding era? >> that is a great and hard question. if you are a faithful original meaning constitutional interpreter you still recognize that there are some provisions of the constitution that have a relatively clear determine it
meeting. the president has to be 35 years of age. 35 means probably 35. there are other provisions that appear faithful to the original meaning. the original meaning has a range or might articulate a standard as opposed to a strict rule. i think it is an interesting question. i am not an expert on the eighth amendment. i think it is a good question whether cruel and unusual punishment was a term of art that had a limited meeting. i have read good arguments that it is a prohibition of cruel innovations, that was the understanding. if you think that cruel and unusual means that it is an unusual penalty today, i think there is room consistent with the original meeting for a practice to have become unusual that was not before. i recoil when the supreme court
in 1972 counted heads one direction and then counting social backlash and changing the interpretation of the constitution. there is something unsettling about a wet finger to the wind that the supreme court does following election returns. that would not be a possibility i would exclude for a provision that is explicitly a standard. if the framers, in adopting a constitutional provision, intended or meant for that provision to create running room and for different interpretations over time, that i think it is conservative and faithful to the constitution to accord that running room different results for different times. >> thank you for that. affirmative-action? contraception, the death penalty, now it is time for
affirmative-action. the case we are going to talk about is regions of california versus bakke. it is 1978. bakke sues the university of california after he was denied entrance to medical school. after discovering the school reserved seats for people of cover -- color. he charged reverse discrimination. the question is, is this a violation of the 14th amendment equal protections law and the civil rights act of 1964 which vindicates the promise of the civil rights act of 1875 and forbids discrimination on the basis of race. there is no single majority opinion. four of the judges say any racial decision violates the civil rights act. the dissenters say the use of race is ok in higher education
as long as it is used to help african-americans rather than stigmatize or degrade them. the key vote cast by justice lewis powell who says that rigid racial quotas are a violation of the equal protection laws. using race as a plus factor may be permissible because intellectual diversity in the university arena is a permissible goal. taking race into account, as harvard college did, was permissible. akhil, there was a muddled opinion, who, if anyone was right? if you are writing bakke, what grounds for affirmative-action would you give? >> when i was young i was fond of justice powell. plusses are ok, quotas aren't. in the long run these pluses approximate quotas. when i was 20 years old i used
to mouth off about my father. as i got older my dad has gotten a lot smarter and i feel the same way about justice powell. as i have gotten older he has gotten a lot smarter. this was the sweet spot in a very difficult culture. what does it mean for a system to be equal against the backdrop that was historically unequal for so long, slavery and its consequences? it is an opinion introduced in a big way into the national lexicon, this idea of diversity which can mean lots of things. it is powell's opinion that -- maybe using race to integrate come other is a difference in using race to segregate. using race to make sure our national universities look like america. that is not quite the same thing as using race to keep out people
who historically have been down and out. that is the argument we make if you want to say affirmative-action is ok. the intent is a little unclear and what that means 100 years later. even if they thought it was ok to do affirmative-action, they were dealing with real slaves just-released from bondage. very complicated set of issues. today, since you asked if i was writing an opinion. way back when i wrote a piece with a student in the new republic. you were editing for the republic back then. >> i was not. [laughter] >> the fellow i cowrote it with was a brilliant student of mine.
i later introduced him to jeff, and he is now his brother-in-law. [laughter] neil and i wrote a piece called "bakke's fate." it said that affirmative-action was ok for a while, maybe limited. that was 20 years ago. it is a toxic business, taking race into account. brother paulson will maybe have a few more things to say. stay tuned in to that episode. >> in the majority and dissenting opinion of affirmative-action cases judges cite the language from justice harlan that you said our constitution is colorblind.
they extract from that the proposition that any classification on the basis of race, especially in affirmative-action, is unconstitutional. their critics say they are not being good originalists because harlan did not think all racial classes are unconstitutional, only in regards to civil rights is our constitution colorblind. they did not think the ability to go to public schools was a public right, therefore brown v. board of education was wrong on originalist grounds. it was bad originalism, these critics say, to invoke harlan language. >> akhil was smarter in his 20's than he is in his 50's [laughter] >> he had it right at the time we were law school roommates. i think that the principle of the constitution of colorblindness, that the government may not regulate or classify on a basis of race ever, is the correct
understanding. there are new instances in which that principle is applied. the principle is the same. i think if you stick with the principle of justice harlan's dissent you reach the writing on the wall. people disagree on affirmative-action. what i think is fascinating about the bakke case is how it created 30 or 40 years of legal confusion. four justices say colorblind. you cannot set aside slots in a medical school admissions class on the basis of a race. they say that is a principle that sounds an awful lot like segregation. the strongest justice for that position is justice thomas, an african-american justice. four justices are pure colorblind principles. four justices had a version of akhil in his 50's, which says
that reverse discrimination is categorically different from direct discrimination. that you can give quotas, they praise quotas. the one justice in the middle, justice powell, says quotas are unconstitutional, but a bonus or a diversity plus is ok. i think akhil in his 20's was right. a bonus, if it is meaningful, is a small quota, and a smaller infringement of the same principle. the interesting thing is that eight justices agree that the one answer that can't be right if the answer in the middle, because all it would do is produce confusion. think we have seen that for about 40 years in the supreme court's opinions.
they cannot agree whether the principal is race blind or that you can give preferences based on race. it is a total quagmire. >> without settling that quagmire, we will turn to the first amendment. let's read the first amendment and inspire ourselves. " congress shall make no law establishing the protection of religion or limiting the exercise of, or limiting this speech or the press, or the right of the people to peaceably assemble and to petition the government for a redress of grievances." there is no case that captures our first amendment condition than brandenburg v. ohio, decided in 1969.
this is an astonishing case that reminds us that america is a global outlier in assisting speech can only be banned if it is intended to unlikely to cause imminent violence. nothing short of an emergency can justify repression. these are words that come from justice louis brandeis inspiring opinion in whitney versus california where he says, because the final end of the state is to make men's free to develop faculties, the best response to evil counsel is good ones and as long as there is time enough to deliberate, then every idea, no matter how hateful, has to be admitted into the public sphere. there is a big debate today over whether hate speech should be protected by free speech.
if you are asked, you can tell people confidently that supreme court in brandenburg has set by overwhelming majority that the first amendment does protect hate speech and can only allow speech to be bad if it is intended or likely to cause violence. the facts of brandenburg are striking, it is a ku klux klan rally. i guy gets up wearing a clad uniform at a rally and says unless something happens to the race situation in this country white people will have to take revenge. he is prosecuted under a ohio law that says it is illegal to advocate illegal actions as a means to a competent industrial or political reform. the court holds that this speech which is hateful and appalling is protected by the first amendment because it is not directed at inciting or
producing imminent lawless , and is not likely to produce the action. it is a willing rally of clown people. they are just hearing hate speech they agree with. and remarkable principle, akhil it does come from brandeis. why did the court in 69 embrace having come out the other way for so long? do you believe brandenburg in brandeis was channeling jefferson? what else of the audience know? >> i am a fierce believer in broad political speech. i don't try to shelter my own students from hearing sharp critiques of their worldview. yale is not governed by the constitution, it is a private institution. the free-speech idea is broader than the first amendment. it is about how we as a society have to be willing to confront
ideas we might not like and figure out why we don't like them. we sharpen our own views and we hear the other side. why did it take so long? it is not a unique story about the first amendment. we have heard that the 14th amendment did promise racial equality, but that is not what we got in plessy versus ferguson. that only happened later in brown v. board of education. we heard that congress is really authorized to pass sweeping civil rights laws, but the court initially in the 1883 cases did not get it right. it finally did, although not on reconstruction power grounds or interstate commerce grounds. i believe that these words that were on the screen before, no state shall make or enforce any law which shall abridge the
privileges or immunities of a citizen of the united states. no state can violate things in the bill of rights like speech, press, petition and assembly. the supreme court took a very long time to catch up to that. in general, congress passes -- congress gives us -- the first congress the words of the first amendment. what happens within a decade? congress makes it a law not to criticize congress. the court willingly upheld that. there is a lot that the constitution actually says and courts actually don't initially implement. only later do they finally catch up to it. mike might say that about affirmative action. what he thinks is prohibited and courts are prohibiting it, but
he is hopeful that day will come. what explains that? i would say many ideas in the constitution are radical ideas. radical in a good sense. it takes sometimes america i long time to catch up to these commitments and promises that really are in the text. because they really are in the text, in the end they prevail in the long run because people take seriously what is in the text of the constitution. in part because there are great institutions like the national constitution center and c-span that are designed to reintroduce you to these amazing words and principles. >> thanks for the plug. mike, -- >> books like brother paulson's. >> this is probably a good time for me to plug the book by tony morrow "landmark cases volume two."
two questions about brandenburg. is akhil right that the reason the court recognized this free-speech principle -- suddenly protest is much more popular and the justices are accepting it. the sedition act of 1917 was passed during world war i, those prosecutions were much less popular. was brandenburg, and is brandeis, correct as an originalist matter? the constitution center is going to have a great event. jeff campbell who has written a piece for the yale law journal says the first amendment was supposed to respect core political speech, but some exceptions for hate speech were ok. was brandenburg correct?
>> that is a big, complicated question. i think brandenburg is right. i think that hate speech tests our commitment to the principle of freedom of speech. if we truly believe in the freedom of speech we have to believe in the freedom of people to express views, no matter how unpopular and reasonable they seem to the overwhelming majority of people. short of immediate incitement to imminent lawlessness. in the world after charlottesville it is hard to know where that line is, but the line that is drawn in the brandenburg case is that you can't punish speech based upon its offensiveness. that means we have to protect a broader sphere. akhil and i are both free-speech liberals. i reached that result not because i like speech, i do like speech, i don't like all speech.
right? i think that it is correct as a matter of the original meaning of the constitution. it is true that the purpose of the framers, the core purpose of the first amendment was to protect core political speech. i think that the words that they freedom of speech," are broader than the principle. they go beyond what european societies do, and i think it is something true and distinctive to america. whether it took the supreme court too long to get there can be debated. the supreme court has not always been a bigger as protector of free speech. some of the most awful decisions of the supreme court came in affirming convictions for sedition for outrageous speech. in fact, one of the cases
mentioned in the book i wrote with my son luke is a case called deb's versus united states. eugene debs was a socialist presidential candidate in the early 1900s. he was basically prosecuted, convicted, and incarcerated for a harsh anti-world war i policy speech. imagine that, incarcerating a presidential candidate for a political speech. the supreme court upheld that. whether it took the vietnam war to break the barrier of national it is aech, i think fascinating question of a sociological look matter.
i am just a dumb lawyer, i don't know i can answer that. >> debs runs for president in 1920 from a jail cell. >> and gets a million votes. >> an astonishing story and inspiring story of constitutional, i will say resolution, but justice is coming to recognize the insights of jefferson and madison. that freedom of opinion can't be alienated or surrendered to government under any circumstances, because our opinions are the product of our reason. as creatures of the enlightenment we can't alienate our reason to the state. it defines who we are. that is what madison -- >> both are true. [laughter] >> all right, well madison had it first. [laughter] >> we have another student speech. it is called tinker versus des moines. students are protesting the war. we are about to have a march on washington by students who are not happy with current gun-control policy.
in 1969, it was the vietnam war and students come to school wearing black armbands to punish and protest the war. the question is, can they be suspended by the des moines school district for their armbands? they say this violates their freedom of speech, and the majority opinion says students can't be punished for passive expression of opinion. the ban on armbands is an urgent wish to avoid controversy. it can hardly be argued that students or teachers shed constitutional rights to freedom of speech or expression at the schoolhouse gate, a memorable phrase. students to have first amendment rights. that notion is being challenged by the internet. where is the schoolhouse gate if you are texting at home and texts are received at school. what to make a recent supreme court decisions including those upholding bans on banners saying "bong hits for jesus."
akhil, doug, how important was tinker? is it correct, and what the court right or wrong to be cutting back on this in recent cases? >> this one is personal for me. i think i do what i do in part because my parents brought me to philadelphia when i was 11. i went to independence hall and that made a tremendous impact on me. three years later i am in high school and i write an op-ed for the school newspaper that the principle censors. my teachers stood by me and they told me to read this case called tinker versus des moines all about the free-speech rights of students. i read it, it inspired me, and i think it changed my life.
i tell that story in a chapter i wrote in a book called "law of desland," about tinker vs. moines. this is a case about students, the next generation. for me, when i was a student, and really inspired me to take the constitution seriously, to take rights seriously. it is what the national constitution center is all about. it is nice to see one young person here in the front row. so thanks for coming. this space is all about -- i think two-thirds of the people who come here on a daily basis actually our youngsters learning about the constitution, and for me that is what tinker versed des moines was. >> this is a fantastic president's day with thousands of young people. akhil has given us this powerful personal story. these more recent cases do suggest that students have fewer first amendment rights than adults. justice thomas suggested, in a
provocative opinion, that students have no first amendment rights at all. was tinker correct or is justice thomas correct? >> tinker is a great case. i love the tinker case. even though it is protected, akhil, i would've liked to see you suspended. [laughter] >> i don't have a story like that. one of my first jobs out of law school was working in defense of religious freedom for high school students. they wanted to form prayer groups or bible studies after school on the same terms as the chess club or the underwater basket weaving club. the case that we cited more than anything else was tinker versed des moines. even though it was a religious freedom case we weren't reminded of religious freedom positions. this is just a fresh and abuse and you can't discriminate on discrimination
true that thes supreme court has been chipping back on a couple of decisions. there have been greater decisions upheld the on the decorum of student speech and whether or not it is offensive. a something occurs within curricular context, the speech kind of becomes more this cool speech and it is easier to regulate. i kind of disagree with that, too. "bong hitswith the for jesus" case. a snotty nosed high school senior, a man after my own heart, shows up for a parade in alaska at the olympic torch is going through town. they are dismissed from school that day.
he doesn't show up for school, he goes straight to the parade and unfurls this banner that says "bong hits for jesus." they actually uphold the expulsion or suspension of him from school on the basis of what he does at the parade. now, i know more like his speech then i would like some other speech i disagree with. but i think the basic principle that kids are persons and are possessed with free-speech rights is a vital and correct principle. the first amendment is not limited to adults. so, kids out there, go press your freedom of speech and the legitimate downs of it. it cannot be disruptive to the school and marman, and you can't interfere with the right of other students to be secure and get an education. but that is your constitutionally respected right. so go out and use it. >> beautiful.
versus theyork times united states. the pentagon case. who has seen "the post"? the case is crucial to the movie where president nixon is using his executive powers to try to publishing top-secret documents related to the vietnam war. movie, theyrom the have been leaked by someone who works for the department of defense. in the movie, the publisher of the post makes the brave decision to publish despite the recommendations of her all-mail lawyers. she is trying to figure out what the new york times will do. lower court judges actually stopped the presses for the first time an american history. stopped by have been someone who feels the exposure of the information may endanger
national security. as we learn from the movie, the first amendment protected the right of the new york times to publish the papers and justice black wrote one of his most thatable decisions, saying the word "security" should not be used to abdicate the fundamental law in the first amendment. what is the legal principle that justified justice black's holding? was it correct as an originalist matter? and was there decent case on the other side? akhil: the first amendment talks about the freedom of speech and the freedom of press. those were two different things at the time of the framing. the 14th amendment makes these things applicable against state and local governments like des moines, iowa. freedom of speech comes from freedom of speech and debate in parliament. parliament is a place where people speak.
from the french, to speak. it is about very broad political discourse. in england, parliament gets to do that. in america, everyone gets to do that because we are sovereign. we are the parliament. politicalvery broad expression, and that is what mike and i defend. case.s the brandenburg freedom of the press, the press there did not mean the media. it actually meant to a machine. like the printing press. stop the presses. the idea was, in england a printing press used to be a pretty expensive, pricey piece of equipment. not everyone had one. today you do. it is called your laptop or iphone. back then, and a century before the constitution, it was a very big, heavy peas of equipment and the government of england
thought they could not license it. it could get a printing press and who could not. and, freedom of the press with this idea that actually government should not be allowed to license. you can print what you want. if the government did not like when you print, maybe you could be punished after the fact. america, andbe, in the first amendment and it came to be associated with this idea no prior restraint. ok? the government cannot license a printing press. they cannot have censorship rules and advance. printers get to publish. if they published up that compromises legitimate government interest, there is a possibility of punishment after the fact. but we cannot stop the presses by government fiat. after-de-fact punishment, you need to decide who is going to -- understand who is going to decide.
not a judge, but a jury. the jury is actually going to see what you published and whether or not that contributed to national debate or not. the pentagon papers case is a narrower one. i have not seen the movie, but it is a great story. it only stands for the proposition that the government cannot stop the presses and advance. at the court and knowledge is there is a possibility that once and to thek times washington post publish this, there could be prosecutions afterwards. they were very gutsy to not actually hold back and to actually publish because they were at risk of after-the-fact punishment under the free press clause, which is again, only a role of no prior restraint. the free speech clause is much broader. important wrinkle in the movie. at the movie, catherine brown is afraid of being put in jail.
onh she and the times relied the same source. is that the correct original principle? you can't be stopped from publishing before the fact, but you can be punished after the fact. why didn't the administration try to punish after the fact? do you believe the natural right section of the first amendment would -- >> that is a good question of whether the first amendment would permit terminal prosecution of someone for disclosing national security secrets. that is not something decided by the pentagon papers case. it is interesting to see this case came up on a superfast track. two weeks away from the publication of the pentagon papers to the time it is decided. the supreme court does it in rapidfire fashion. i cannot believe a law professor is not seen that movie about the supreme court case.
[laughter] there is a range of opinions from the first amendment to the absolutists that say government cannot restrict whatever the whateverublishes -- the press publishes. to justice brennan, who says, they might be able to restrict publication of national security secrets of the sorts of analogous to letting hendler nowhere the d-day invasion is going to be, right? but there are compelling interest overrides. say,dle block of justices we don't need to decide that because one principle that his farm is that the government may not shut down the press in advance. here, congress had not passed a law authorizing nixon to sick -- seek the injunction that he did. a court order stopping the presses is not only a first amendment violation, but a
separation of powers violation. the president is acting the court to write a law that congress can and. given the case that congress enacted the law, that might come out differently. there have been cases like that. sometime in instant 232 thousands, 2006 or 2007, where the new york times disclosed our signals intelligence operation. the wiretapping program. validity of the wiretapping program, the disclosure of the intelligence gathering information made public did violate the specific criminals that shoot. statute --en specific criminal actuate. forcek the gravitational of the new york times case has created a political atmosphere where within hugely broad bounds, we do not elected the
press for publishing things even where the statute seems to say that we could. >> we have two more cases and the next one involves the sixth amendment. in all prosecutions, the accused shall enjoy the right to speedy and public trial by an impartial jury of the state and to have the assistance of counsel for his defense. our cases gideon versus wainwright, which held that criminal defendants have a right to an attorney even if they cannot afford one on their own. the humant to learn stories behind gideon and wainwright, lead -- read gideon's top but which inspired generations to go to law school to defend the defenseless. it is an astonishing story. i will not ruin the story except to say that didion, who hand writes his own petition to the court saying he had the right to a lawyer and set getting one, being retried, being found
innocent. i wish i could take out the book, but i'm going to take up the kindle. the last paragraph is so moving. i read it and my class. you have the sense to how gideon traveled to be made free. "after nearly two years in the was apenitentiary, gideon free man. there were tears in his eyes and he trembled even more than usual lessie stood in a circle of well-wishers and discussed his plans. his half-brother the air sergeant was coming home from japan and would adopt his children. he paid a last visit to the bay harbor will run. could someone lend him a few dollars? someone did. anthony lewis. do you feel like you accomplished something a news reporter asked. well, i did. what was the final principle that says you have the right to have the state pay for you to have a lawyer? how does that square with a history of the sixth amendment?
why did it take the courts along and why was gideon correct? >> >> it says the right of counsel in the constitution and after the 14th amendment that fundamental right comes to apply against the states. the counter is, counsel only if you can pay for it, it is not government appointed counsel. it is not so clear. it is true that in capital cases in america they have paid for counsel. in noncapital cases it did not. in a noncapital case you did not have the benefit of legal counsel, that was called the judge. the judge actually, if you could not afford counsel the judge would look after your interest. thejudge is paid for by government. that actually was a form of government-subsidized counsel.
clear that became the judge cannot be but the umpire and the coach for the defense team. at can't wear both hats once. so one idea is gideon the case, is just actually changing the precise way in which the government provides your counsel, not through a judge but through a public defender. publicly subsidized. that is one argument. your is a different argument. whatever else it says calm the constitution provides for due process which is about fair procedures. there is just and in tolerable risk of unfairness that an innocent person could actually be found guilty not because he is guilty but because he is just learned in they law. you can't defend himself well in a jury trial, the rules of evidence and the rest. there is an intolerable risk that someone will be convicted not because they are wrong but
because they are poor. that is not fair procedure, not due process of law. as society becomes wealthier over time, maybe it is more fair to insist that we provide more government resources. especially because government is for more money into prosecution than it did before. that is his second argument and one that does depend on part over time on how prosecution functions are changing. a government and selfie are -- and society is becoming wealthier. here is the counting point. at the time of gideon, 45 of the 50 states as a matter of state law were already giving all felony defendants appointed counsel. and, justice black's landmark opinion for the court in gideon mentions that prominently. that is accounting idea. not, allfive that were of which were in the confederacy, always gave counsel
for capital defendants and actually in big cities and even they gave counsel to a lot of people if not every felony defendant. 25 states filed an amicus brief in the case. 22 of them on behalf of clan several gideon. earl gideon. so most of the states were very much on board with this principle. and, you see the john marshall harlan count and the second counting principle as well. >> mike come i heard a lot of evolution in there. i heard counting, government revolution, handwaving. as an original matter, at the time of the training, some say that banned defendants from having counsel.
the vestiges of an old system where you did not have counsel and people were not allowed to testify in their own words. at the very least, the sixth amendment was trying to allow you to have counsel if you could afford it. what the court correct to hold that even if you couldn't afford it the state had to provide one? or was gideon wrong? >> gideon was right. i think the principle is pretty simple. it is still arguable and debatable. i think the right to counsel, the right to have the assistance of counsel for defense is an affirmative right. it is not merely a right not to have government for bid you from having a lawyer, but a right to have a lawyer, and i think it is a possible reading of that in a situation where someone can afford one that the government would provide one. >> our last case. katz vs. u.s. it is time for the fourth amendment. the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.
the central idea of the fourth amendment is to repudiate the hated general warrants and writs of assistance that sparked the american revolution. at the time of the framing, you had to break into someone's house and violate the property to violate their fourth amendment rights. without physical trespass there was no fourth amended violation. in that case, the olmstead case, the wiretaps were put under a public sidewalk leading up to the suspected bootlegger's office and tax said no trespass no fourth amended problem. justice brandeis disagreed. he predicted that ways may be developed where it is possible without intruding into the home to extract secret papers and introduce them in court. the anticipated mind reading technologies which would allow the expression of unexpressed thoughts, sensations, and emotions and said that the fourth amendment should apply without physical trespass.
the katz case is significant because it recognized brandeis' insight. it said the fourth amendment protected people not places. the katz case involved a phone booth. who remembers a phone booth? that was a fourth of the audience. the case said because the suspected gambler, katz, close the door and the expressed a reasonable right to privacy. that's reasonable expectation to privacy. society was prepared to accept that as a reasonable. that is justice harlan's of words. and the coloring is there is a subjective expectation of privacy. there's so much to say about that test, including that it seems circular. of the government says
"citizens, we're going to track "our gps devices door to door than our expectations of privacy would be diminished. this may determine the future of electronic argosy by deciding whether or not it applies to the tracking of our movement and public and seizing our cell phone records for five months. akhil, you have written so powerfully about the fourth amendment and the general warrants. was it correct as an originalist matter? who had the better opinion, justice stewart and his majority are justice harlan? would you decided on other grounds? khil: i have a broad understanding of what applies as a search or seizure. people can be intruded upon without physical trespassing using electronic surveillance techniques. i like the idea of a broad reading of search and seizure. i would say that when you read the fourth amendment all that it means when there is a search or
seizure is that it has to be reasonable. the court sometimes says if there is a search or seizure there has to be a warrant. which i do not think is true. it is not true actually for all sorts of searches and seizures. metal detectors and airports are search and seizure. if you're stopped on the street, that is a search and seizure. it does not have a worn. i have a broad understanding of what counts as a fourth amendment episode. i think all that requires is governmental reasonableness rather the end a war and. the warrants that were generated case, wiretaps are generated and secret. i do not love that the idea of
courts acting in secret. not soto think they act well when the act secretly rather thing in an open court so i do not love that. kooky. where i am really the framers of the fourth amendment did not believe in an exclusionary role so even if the fourth amendment right was violated, if actual evidence of guilt was found, that was actually admissible and there's a quote from a famous case "it matters not how you get it, even if you still at it would be admissible." that is not rend isis of you. if you are real brandeis enthusiast, he believed fourth amendment to be violated it would have to be excluded. no founder ever thought that. no cord and america, state or federal, remember state have states constitutions. the fourth amendment by the state government, no court and america ever excluded evidence
in the kind of exclusionary rule that way. and an entire century after the declaration of independence. so, broad understanding. what triggers it. reasonableness is required. i am not sure the judges issued secret warrants are the best weight to go. by the way, the exclusionary rule does not help you at all if you are innocent because if you are in is that they did not find anything and they still intruded upon you. so i prefer, when you are intruded upon sue them for damages. have a jury of your peers. socket to them. the more innocent you are, the good forrecover and you. >> the reason electronic privacy cases have often been unanimous, holding nine-zero that putting a gps on the bottom of someone's car seizing without arrest
violates. the more conservative justices focus on private property violations. that was a problem in the gps case where they walked into the driveway and stuck the gps on the bottom of his car. katz, was there a violation? >> i think it was right but you were wrong i think about the conservative justices. some of them have problems with fourth amendment violations where is there a specific intrusion on a property right. one of my favorite fourth wasdment cases to teach written by justice scalia out. there is never a more pure attached thatng justice scalia. he served wonderfully for 30 years on the supreme court. this was a case about the use of infrared technology to look into people's houses.
the question presented was whether that was a search. he said, the fact that it was not a technology known at the time does not alter the fact into thes intruding areas of the home where people -- it is a search of the home. it actually matches the literal words of the fourth amendment. i think similarly, to seize somebody's phone conversations, to wiretap, is a seizure. sure, it was not a technology known at the time but it is an illustration of the constitution terms sometimes embracing new instances that fit into traditional territories. so i think that actually, from an originalist point of view, katz is clearly right that wiretapping somebody's conversations is a search. it is a seizure of a conversation. i agree with an astonishing amount of what akil said about
the fourth amendment. it is a prohibition on unreasonable searches. not a prohibition on searches per se. not all searches require. it is a wonderful view that not -- the fourth amendment is traditional about damages, remedies, suing police officers for intrusions on your right. not about excluding evidence. there's really no contextual reason in the constitution why the police's error or mistake, even a willful mistake, should result in the exclusion of evidence in a trial. they should be sued for damages but that is not a reason the justy should go free, because constable laundered. crisis is a wonderful place to end. it shows two old friends with very different approaches may converge on constitutional results. as you remind us, justices like
justice alito and justice scalia of who often agree on a result may diverge on the methodology and for the amendment cases because they have different views about how the constitution should be translated in light of new technology. ladies and gentlemen, here's your homework as you get ready to enjoy this incredible series of 12 landmark cases. first i wait you to dig into the of the -- the text constitution. i want you to download if you have not already the national constitutions amazing interactive constitution which you can find in the app store. you can click on each and find the leading conservative and liberal scholars in america. like these who agree and disagree on different parts. it will get you ready to think cases.he i want you to read the opinions. you can skim calming down have to read all of them. every law student learns is.
read the majority opinion, read the dissent, here the human stories. here the brave lawyers on each side and make up your own mind. be open to the possibility of separating your political conclusions. the open to the possibility that you might think that searches of the conversations are a bad idea but the fourth amendment prohibits it or it is a good idea but the fourth amendment allows it. that is what it means to be a good constitutional lawyer. that is what the two of you mind when your students debating each other, caring so much about the meaning of the constitution, recognizing was made for people of fundamentally different points of view. that is with the constitution center is about, that is what c-span's back, that is why we are so excited about this series sent thrilled to share with you. thanks to our friends from c-span and see you next week. thank you so much. [applause]
in the constitution entry stick that state -- restricted -- restricted state action. watch landmark cases live monday on c-span,. eastern suspend.org, or listen with the free c-span radio app. for background on each case, order copy of the companion book available for $8.95 plus shipping and handling. for an additional resource, there is a link on our website to the national constitution center's interactive constitution. late reverend billy graham, who died last week at statee of 99, will lie in this week. a memorial service takes place