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tv   Landmark Cases Launch  CSPAN  February 26, 2018 2:11pm-4:01pm EST

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explore this case and the high court's ruling with university of virginia society law profess -- associate law professor and university of arkansas law professor. securing a nation. watch landmark cases live tonight at 9:00 eastern on c-span,, or listen with the free c-span radio app. and for background on each case, order a copy of the landmark cases companion book. it's available for 8:95 plus shipping and handling at and for an additional resource, there's a link on our website to the national constitution center's interactive constitution.
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>> next, a preview of c-span's landmark cases from the national constitution center in philadelphia. >> welcome to the constitution center. i am the president of this wonderful institution which is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. beautiful. that is so inspiring. wonderful live c-span audience. you can see the great members of the national constitution center, like people around the country, are inspired by this nonpartisan mission of constitutional education and believe it is crucially important for citizens to educate themselves about the constitution so american democracy can thrive and survive. and in this educational mission, we are so excited to be partners with c-span.
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we had a wonderful collaboration a few years ago. landmark cases. which described the human stories behind some of the most important supreme court cases of all times. that series was inspired by a comment that justice bader ginsburg made at a national constitution center event a few years ago where she said, how inspiring it would be to hear those human stories so people can relate to the cases and understand the constitutional rinciples behind them. 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 second but first i have to put in a plug for upcoming constitution center events.
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last week we had a wonderful event with justice ginsburg. she came back and talked about gender equality and the future of the constitution. we have coming up the following event as part of our town hall program, of which this program is one. coming up later this month we have how the right and left can unite around federalism. then on march 15, joseph ellis and john mechem will come to discuss renewing the founders' promise and then on march 20, i'm so excited, this just arrived in the mail on saturday, the hard copy of this thrilling new book about an underappreciated constitutional hero, william howard taft. those are the exciting events coming up and now it is my eat pleasure to introduce my
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colleague, friend, collaborator, visionary head of c-span, susan. [applause] >> note to self-. never follow jeff at the podium. happy president's day. we're going to talk about the supreme court tonight on president's day. but 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. so it's really very appropriate for this very special day. i want to echo jeff's comments about our great working relationship. as long as there's been a national constitution center, it's educational and nonpartisan mission so much mirrors c-span's nearly 40-year-old educational, nonpartisan public affairs charter. and so it was a wonderful collaboration. in fact, during the 2016 conventions we set up our
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studio here and had that beautiful view of independence hall. i'm native philan by the way, so it's -- phil delvian by the way, so it's -- fill delvian, by the way, so it's so nice to be home. as jeff says, they were kind enough to inis right my colleagues and i to the national constitution center board dinner in washington a few years ago. and the story that ruth bader ginsburg told was of living the irginia. interracial marriage was outlawed in the state of virginia. that poignant human story resonated with us and we came back to our office and said, why don't we take on the cases that have dramatic human stories? so working with the folks at the constitution center and their great scholarship here, we collaborated with a really -- they advised us on our first set of cases. it's hard to know in c-span world when we have hate because we don't have any ratings but
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we had a lot of good feedback as did -- the programs are interactive so we had a lot of people phoning in and also sending us tweets and facebook messages. and we liked it. that was the best part of it. because, what could be better when you have a job where you're learning something, you work with great people, and you're getting a lot of positive feedback. when the election was over and we were looking around for another historical project to do this was a natural fours. so once again, we have chosen 12 cases and we are starting all the way back in 1819 with mccullough vs. maryland and 1978 going to end up with and the case. i don't know if you remember that. we're going to learn more.
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and the bochy case. i know, if you all remember that, that was when allen bochy challenged affirmative action in the state of california. we chose cases that are not just historically interesting but also relevant to our lives today. so you're going to be looking at cases that deal with wireless tapping and with civil rights and with free speech. issues that we -- the right to privacy. things that we are all still talking about today. so you'll learn a bit of 200 years of american judicial history. but you'll also think about how these cases continue to impact our society today. i just want to say a quick note about my colleagues, because this is a lot of work for us
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and we're busy covering this. this congress is keeping us quite active over the past year. a few of us have taken this on a bit as a labor of love. my colleagues -- can you just wave your hands so people see who you are? mark is our special producer for special projects. ben o'connell is going to be producing the series for us. nate hurst is next to him. he's going to be working with us on a week-to-week basis to line up all the guests and video. we have two folks at home in washington. randy, one of our field crew people. we are sending him out. this goes to the people stories. he's going on location to the personal stories, the hometowns of where these cases took place, and getting video, for example, visiting chinatown, and going to des moines for tinker versus des moines school district. so you'll see the cases where these -- places where these cases took place. and finally our production assistant. we also have a big technical crew. thanks to all of you. the series starts next monday night at 9:00 p.m. eastern time. it will be live for 90 minutes. and we will go for 12 weeks. each case gets its own program. we're hoping so much to have you in our audience. phone in with questions or send us a facebook comment. make it interactive. your questions really make the discussion. thanks for helping us kick it off. thank you for being here. i'm going to turn it over to jeff rosen. thank you. [applause]
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jeffrey: thank you so much, susan. susan is a masterful moderator. it's such a pleasure to learn with her about these incredible cases. all right. you are in for a treat. i hope this will be a concentrated constitutional feast. an hour or so where we have two of america's leading expert to help take us through these cases, to learn together, and to spread the light. akhil amar is america's teacher of the constitution. he was my teacher of the constitution. he was my first teacher in law school. and he has spread his wisdom and knowledge to me and to housands and hundreds of thousands of others by means of wonderful technologies. he's the author of many books, including "the constitution today," timeless lessons for the issues of our era.
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he is a sterling professor of law and political science at gail. and he is america's leading exponent of constitutional methodology that some have called the new textualism or riginalism for liberals that argues that the text and history of the constitution honestly interpreted should lead to results of different olitical balances. and joining him in this incredible discussion is michael paulsen, distinguished university chair and professor of law at the university of st. thomas. author of numerous books, including, "the constitution, an introduction" which justice alito called solid, reliable, interesting, informative and a lively tour of the constitution. and he approaches things, according to justice alito, from a more hamiltonian originalist perspective, from a more conservative point of view. i just learned, in the green
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room that akhil and mike were law school roommates! and what do you imagine these two brilliant scholars of the constitution did in law school? i wasn't surprised to learn they debated the constitution so heatedly, that they would follow each other into the communal rest rooms, when they were brushing their teeth and mike would argue that akhil was a wild-eyed living constitutionalist and akhil, i'm sure the debate was fascinating. as we are going to continue it tonight. let us jump right in. we have to use every moment of this precious time to learn together. we're going to begin with mccullough and maryland. 1819. i need my constitutional reading glasses. and i think we need the text of article one, if there may be a
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quicker -- oh, here it is. let's see if it works. okay. wonderful! the congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the united states. it is 1816. the second is created here in philadelphia. their branches of cities, including baltimore. the maryland legislature passes bill, taxing out of state banks. and the question is, does congress have the authority to establish the bank? did maryland law unconstitutionally interfere with congressional powers? chief justice marshall's important opinions for the court has many memorable lines, ncluding that the power to tax involves the power to destroy. and he also says that unlike
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the articles of confederation, 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 only those thing specifically listed in article one. akhil, you have called mccullough the most central case in our constitutional cannon. you have said i teach my student mccullough and maryland before marbury versus madison, because i think mccullough is a better exemplar of legal craft. what do you want our audience to know about it? akhil: so constitutional law isn't just about what the rules are. what congress can do, what congress can't do, what the president can and can't do. what questions are important, but even more important is the how questions. how do you make a constitutional argument? what counts? only judicial precedent? what about text? what about the history? what about the original intent of the constitution? what about the structure of the constitution as a whole? and mccullough is a beautiful example of all the different tools and techniques of proper constitutional analysis.
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holistic constitutional analysis being brought to bear. if i want to teach my students more than anything how to make arguments. mccullough is a great place to start. jeffrey: wow. mike, you also have high praise for mccullough. in this books, the constitution, an introduction, you say that it has relevance for the court's decision to uphold the affordable care act. tell us about how it's come to such a broad interpretation of national power, which has prevailed, although jackson's veto stands for the proposition that the separate branches have the power to interpret the constitution on their own. michael: you wouldn't think that the case about the taxing of a bank would be such exciting reading, but it really is. this is a controversy that goes to the root of how broad the national government's powers are to legislate for the country. and it goes back to hamilton
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versus jefferson. i think i've seen this debate between hamilton and jefferson, re-created in the musical "hamilton," right? i won't do any rap here. but john marshall, in upholding the constitutionality of the bank of the united states basically plagiarizes arguments that alexander hamilton made to george washington to convince him that the powers granted to congress should be construed basically for all their works, right? but the idea of the necessary and proper clause means not that there are powers beyond the constitution but that the constitution grants congress a road sphere of powers. the power to create a national bank isn't one of the specifically enumerated powers. but their powers to regulate commerce, to regulate commercial affairs, bankruptcy. so the creation of a bank of the united states was necessary and proper for carrying into execution the other broad grants of power.
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if akhil is right, that really is foundational to nearly everything that congress has done. many people think congress has gone too far. but all of today's controversies, in terms of how broad congress's powers are, really go back to the precedent of mccullough versus maryland. there's another aspect of the case too, which is the one where you hear this, the power to tax is the power to destroy. the state was taxing the operations of the bank of the united states. if the bank -- if federal instrumentality is constitution, then a state can't interfere with it, under the supremacy clause of the constitution. national law beats inconsistent state law. and i think mccullough is a wonderful case. it's foundational for not only how broad congress's powers are but the relationship between the states and national government. in fact, you can see the roots of lincoln's argument against secession in the argument of why it is unconstitutional for the states to interfere with the
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operations of the nation. jeffrey: wow. i'm so attempted to take another round on this. i just want to make sure we get through all 12 cases. michael: good luck with that. jeffrey: i'm going to resist temptation and we'll leave time for questions afterwards and we can come back, if we need to. ok. time for another amendment and a really important case. this is a big one. ladies and gentlemen, the 14th amendment to the constitution turns 150 this july. it is the cornstone of the constitutional achievement of the civil war, after lincoln promised a new birth of freedom at gettysburg. it says, no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states, nor shall any tate deprive any person of life, liberty or property without due process of law. that's the due process clause. nor deny any person within its jurisdiction the equal protection of the law.
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that's equal protection clause. and the case we're talking about now is the civil rights cases, 1883, the civil war is over. it's time for reconstruction. and the centerpiece of the achievement of reconstruction is the civil rights act of 1875. charles sumner is so committed to this bill which would forbid discrimination in places of public accommodation that on his deathbed, he says, my bill. my bill. don't let them forget my bill. and then he expires. [laughter] just a few years later, in 1883, the supreme court strikes it down and holds it unconstitutionally exceeds congress's authority under the 14th amendment. there's an amazing human story in this case that i'm sure we'll tell in the series. but justice harlan, who writes the famous dissent, has writer's block. he doesn't know what to say although he's so upset by this evisceration of the 14th amendment.
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his wife finds that the supreme court, the silver inkwell, where chief justice roger tawny wrote the dredd scott decision, infamously saying that african-americans have no rights which white people are bound to she puts the inkwell on harlan's respect. deathbed. comes home from church. he realizes that it's taney's. suddenly, as if overcome by spirit, he writes this spectacular dissent and predicts that some day the decision will be viewed in infamy. that's the civil rights case. there's so much to say about this. but i want the audience to understand the legal stakes. on what grounds did the majority hold that congress lacked the power to pass the civil rights act of 1875, and what was the grounds for harlan's dissent? akhil: so, to start with arlan's dissent. what a name. john marshall harlan, i think
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the dissent better channeled john marshall, because what did john marshall say in ccullough? as mike told you, congress should have broad power. the constitution doesn't say bank. it doesn't say air force. it doesn't say individual mandate. but congress should have broad power when implementing the great purposes for which the constitution was established, at the founding. what's the purpose? ational security above all. and a bank is useful for national security. banks are helpful to win wars. and marshall mentions that in mccullough. after the civil war, the federal government is basically given a new competence, a new focus. civil rights. 13th amendment.
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end slavery. and second clause says congress shall have power. the language used is congress shall have power to pass appropriate legislation. the word appropriate is actually taken from mccullough versus maryland. so the framers of the 13th amendment ending slavery want congress to have broad power to end slavery. the framers of the 14th amendment have this language but also at the end of the amendment, that congress should have broad mccullough power. so john harlan says, what was the basic problem that generated the reconstruction amendments? it was racism in america. and congress has broad power to try to end racism. this sentence that we have up on screen says no state shall, but right before that sentence, is one more that actually is pretty important. all persons born or naturalized in the united states, and subject to the jurisdiction thereof, are citizens of the united states. and the state where they reside. nyone born in the united states is born a citizen, born n equal citizen.
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all born equal. we are all created equal. that's linked to this idea at gettysburg channeling jefferson. and if we're all born equal, and congress has power to enforce this, harlan says, congress should be able to prohibit race discrimination in public accommodations. hotels, theaters, all the rest. o harlan says let's read congressional power broadly in the spirit of john marshall and mccullough, reading an amendment that actually borrowed language from mccullough. the word appropriate. what does the majority say in response? gee, a public accommodation, these are owned by private persons, hotels, theaters, inns. railroads. they are not government. it says no stall shall. and congress doesn't have broad power to regulate a nonstate actors. but remember, harlan says, oh, the 14th amendment says everyone is born a citizen. that sentence doesn't say, no state shall.
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john marshall told us to construe federal power broadly. but the court, 8-1, rejects that. and that's why, in my lifetime, in the lifetime of some of you, congress in effect needed to re-pass sumner's bill that civil rights act of 1875 basically becomes the civil ights act of 1964. that lyndon johnson helps push through, in honor of martin king and the martyr, john ennedy. and this time, the supreme court upholds it in the 1960's. jeffrey: akhil just described so well how the citizen clause doesn't have a state requirement. he also says that public accommodations essentially have the nature of quasi-public entities even though they're privately owned. do conservatives believe that the majority was rights or harlan was right in these civil rights cases? michael: i don't know that i
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can speak for all conservatives here, because i actually think hat the civil rights cases were wrongly decided. i'm with akhil on that. i have a more hamiltonian view of the powers. here is the argument that's usually raised. akhil captured this pretty well, is that the 14th amendment is a restriction on what state governments can do. ok? the 13th amendment prohibited slavery and could reach private conduct. one of the arguments for sustaining the civil rights case, the anti-discrimination laws, was that it was enforcing the prohibition on slavery. i think the supreme court rightly said, well, that is going beyond prohibiting -- the discrimination is something different from slavery, and the power to outlaw it, slavery, and to enforce the ban of slavery doesn't get you all the way there. i think the argument that inns,
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motels, railroads, where public accommodations and therefore part of the government is wrong. i think that most -- that the civil rights cases is actually correctly the origin of the idea that the 14th amendment is a restriction on what state governments can do. and there has to be something that really is attributable to he actions of the state. here's where i end up disagreeing with the result. congress has the power to pass laws enforcing the prohibition on states, denying equal rotection. there's a sense in which the states' failure to protect equal rights is an affirmative ground on which congress could prohibit the failure. congress could step in and remedy -- it could pick up where the states have dropped off. and i think that's the most persuasive reason for
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thinking the majority opinion in the civil rights cases is actually wrong. i like akhil's point that basically the civil rights act of 1964 is a civil rights act of 1875, revisited or reloaded, as it were. it's interesting that the power on which the civil rights act of 1964 was sustained was the commerce power, that it was necessary and proper to carry into effect the commerce power, which is an argument they rejected or said it could not have been plausible in 1884. it's interesting that the enforcement of civil rights ultimately rests on the power of congress to regulate private commercial conduct and not the power to enforce equal protection of the laws. jeffrey: it is indeed an irony. thank you for relating the commerce clause of article one, which we read to the 14th amendment. all right, our next case is 1886. this is three years after the civil rights cases. generally, this is not a period n which the owned by
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chinese-americans and chinese immigrants in san francisco the first case to use the equal rotection clause of the 14th amendment and the infamous decision, and it is the case where there is migration by chinese people to the u.s. during the gold rush. he city of san francisco wants to close down laundries, and passes the law which gives a total digression over who gets a permit -- if the law applied
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with evil eye and unequal hand o to make unjust and legal discrimination between persons similar circumstances the denial of equal justice within the prohibition and how on earth did people decide if equality wins during the period when it had few victories. akhil: one thing i would like everyone to notice since we ave this language on the screen is privileges and immunities are protection for citizens. things that are fundamental and important. i would say free speech, free press, free exercise of religion, stuff in the bill of rights. but stuff in the bill of rights, wouldn't that include due process? if you look carfully, due rocess protects not just
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citizens but persons. that would be alien, president trump, i mean, my fellow citizens. i am sorry. the center says they're not partisan, but i don't know if i have to be. but this was an amendment not ust about protecting citizen's rights but protecting aliens rights. that is why the word person appears there. and in san francisco some of the folks affected were actually not u.s. citizens who happened to be immigrants from china, and this and we today think that what violations equal protection is where the law itself says whites are treated differently from
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blacks, or men from women. we read it and you are entitled to the protection of equal laws. and, and that is key. but actually when you read it, it says equal protection of the laws and in part, it is about whatever laws coexist have to be enforced in even handed way, nd this law was not. on its face, it didn't say anything about race, but in the application, the government was treating people with yellow skin different than people with white skin and people of chinese ancestry different from other types and that is the language of evil eye and nequal hand. they were being denied the equal protection of law because it wasn't even handed law on its face, but it was being pplied in a completely uneven, unequal way. jeffrey: any dispute about the
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correctness which was, what is the significance today as it is holding form arely neutral law which may be affected by discriminatory intent. michael: this is a case about architecture. the san francisco ordinance prohibited or required a special license if you operated a laundry and it a wouldn't building, bright? in a wooden building. the problem was -- at the time before the turn of the century, lmost all of the buildings were wooden and the overwhelming number of chinese operated laundries were in wooden buildings in this the law itself is a point and jeff point out was neutral on the face but the problem was that it was enforced in a discriminatory manner that basically only one chinese landry out of hundreds was granted permission to continue
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to operate. he was fined $10 and refused to pay the fine and then had to actually i believe imprisoned. i love the principle that a law could be new trillion on the face but if it is discrim na toly enforced that could render otherwise valid law unconstitutional. jeffrey: it is now time for plessy versus ferguson, 896. who has heard of plessy versus ferguson? we know this infamous decision which upheld a law which required separate but equal, supposedly, railroad cars, and if the civil rights cases represented the end of high oint of reconstruction, issues in the jim crowe era when southern states began to
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mandate a kind of american apartheid. the case is so important because it was overturned and brown versus board of education where thurgood marshall read the opinion, and inspiration before he argued ferguson and john marshall opinion has come to be celebrated as one of the prophetic statements of liberty and equality consistent -- i will read from it. it is jarring at the beginning. then he goes on to say something about white people. he says the white race deems itself to be the dominant race in this country, so it is in terms of prestige and achievements, and education, and wealth, and power. i doubt it will continue to be for all time, and remains rue. he goes on to say in view of he constitution, in the eye of
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the law, there is in this country, knows the. dominant ruling class of citizens. there is no caste here. here are the three famous words. our constitution is colorblind. neither know or tolerates -- all citizens are equal before the law. akhil, help us unpack this ativism and white pride with the declaration of equally quality when it comes to civil rights, but not apparently political and social rights. akhil: let's connect dots. all citizens are equal before the language of the law. actually not equal protection which is about persons but the missing sentence here that veryone born in america is important a citizen and herefore, an equal
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citizen. so that first sentence which overruled scott what is the channeling? what is his name? marshall harlan, he is channeling in a way, of course, john marshall because, remember, he thought that the civil rights cases of 1883 were wrongly decided. e was the great dissenter. he thought congress could prohibit race discrimination in the railroads. if the supreme court upheld that law, that would be a simple presumption case. states cannot do the other thing. if a state creates a bank, no discrimination in railroads, this was a state law undermining that. in the civil rights cases of 1883, the congressional lot would have been in place. congress already said, no race this commission in railroads, but he lost in the civil rights cases of 1883. he was channeling john marshall, saying congress should be unable to prohibit this. who was he anticipating?
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thurgood marshall, who reads plessy versus ferguson, and his dissent in effect becomes the law in brown v. board of education. and it is maybe even this case where he does use the ink well. here's what he said, and it is the equivalent of babe ruth's called shot. e is alone in dissent. he says, i predict that this case will become to seen as another dread scott. to say it and be proved right by history, because we do think today, dissent is the right pproach. if you are with him in plessy,
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and i hope you are all are. in the civil rights cases of 1883, and today's supreme court cites the civil rights cases with 1883 with strong approval, nd i think, shame on them. jeffrey: mike, i want our audience to understand what justice brown's majority opinion was. justice brown said, if anyone objects to separate but equal, that is the thought of -- the ower of justice harlan's response, everyone knows what the purpose of segregation was, mainly to degrade and humiliate african-americans. was harlan right, or are there some servitudes or originalists who think on original us grounds, the majority was right?
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akhil: harlan was clearly right, and plessy is one of the most clearly wrong cases ever in the supreme court. it is possible for a supreme court decision to have a enormous public support and enormous majority support. it can still be a flagrantly misunderstanding of the constitution. i think one of the lessons of plessy versus ferguson, this is 1896, the civil war ends in 1865, and in that reconstruction period, the law must be the same for the black and the white. there can be no separation distinction discrimination between the races as a matter of law. what is instructive is that by the 1890's, that idea is lost to the supreme court, and an angry response from akhil,
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because the response of the supreme court feels that the meaning of the words of the constitution must change with he social at the time. much of the reasoning of justice brown's opinion in ferguson is that we must read the constitution to be socially reasonable and in tune with the times. the tune of the times had ecome segregationists. it takes brown versus board of ducation 70 some years later to overrule that precedent on the basis of the fact that we all know that the law should be the same for everyone. i think the lesson of brown versus board of education is the same as the good line in justice harlan's dissent, which is that the constitution is colorblind.
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anytime the government categorizes, distinguishes, or separates on the basis of race, that should be regarded as presumptively unconstitutional. i think that was the original meaning. if you are an original meaning conservative, you want to it here with the civil war era and we can section congress actually adopted, and that was intended to be a black prohibition on racial iscrimination of any sort. jeffrey: we'll return to that important principal when we get to the case in just a bit. but we now, in our thrilling tour of the constitution are going to fast-forward. griswold vs. connecticut. this is a greatest hits tour of the constitution, and it is exciting to be able, this case became the foundation for roe v. wade. it is the late 1960's, and connecticut is the only state that still bans the use of contraceptives for married
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couples. you can learn about the human stories behind this case in the book about the right to privacy, where he describes interplay between pt barnum and katharine hepburn's mother, and the director of planned parenthood. the constitutional question is, does the constitution protects the right of marital privacy? you can teach a whole constitutional case about griswold, but there are at least three basic arguments for striking down the law. justice william o douglas has a freewheeling opinion for the majority that is famous for its invocation of the numbers formed by different parts of
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the constitution which he says coalesced into eight free-floating right to privacy. i heard a chuckle in the audience, and there was a chuckle among the law clerks when they read douglas is draft. the right of married couples to associate in bed, is new to me, he said. he thought of douglas was being too freewheeling. the second, third, fourth, fifth amendment in creating a free-floating right of privacy. justice john marshall harlan the second has a narrower opinion. grandson of the first.
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and a great conservative, says that there is no right of spatial privacy in the home, perhaps rooted in the fourth amendment. and it might be interested to enforce these marital laws. you would have to break into the home that might break the spirit of the fourth amendment. there is in justice harlan's opinion the law is unusual, the only one of its kind in the country. the histories have evolved in a way that recognized marital privacy as a right under the due process clause of the fourth amendment. that is my quick summary. akhil, you will do much better to unpack the reasons. akhil: you mentioned this word evolved, and those are fighting words for some folks. who insist that we, the constitution does not revolve. john marshall, some people say, ou must never forget the constitution. some people say he is talking about how it evolved. john marshall did not believe in evolution. darwin had not written the origin of the species and.
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john marsh and believed the animals entered the ark two by two. mike says he shouldn't be. i am halfway. if the constitution prohibits something, if there is a right in the constitution, then we should stick by that. if it says equal, we should always do equal, even if social mores change. it says equal, and in plessy, gosh darn it, it is not equal. the constitution in the ninth amendment, when it comes to the federal government, in the privileges when it comes to the fourth amendment gestures oward, there may be more rights than our specifically mentioned, nevertheless, but ore. then the question is, how do you find those extra ones, those additional ones? equal means equal. segregation was not equal, so it is invalidated.
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here, john marshall harlan, the younger, the grandson did have an idea. we can look at state practices, state constitutions, and on the facts of griswold, no state other than my home state of connecticut had made it a crime for married couples to use contraception in the home. so that was an unenumerated right. we can look at the declaration of independence to find more rights rather than less. the person who first taught me that the key passage was john arshall harlan the younger's statement, that no state other than connecticut did this, and that is why is a clear right. there is an article in the new republic by one of my former students named jeff rosen -- [laughter] [applause] jeffrey: it was you who inspired me to dig into the history.
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and also come up with the principal means to identify which rights, some rights are protected, even though they are not written down, how to identify those rights. that is why it is so important that you learn about the methodologies of constitutional interpretation and decide which one you find more persuasive. griswold has been famously resized by conservatives. from robert bork who said it should be cheated like it has it inkblot over it, to supreme court nominees, until justice john roberts who said it was correct. justice alito said it was correct. i need you to tell our audience, do you think griswold is correct under any approach, and which of approach is correct? michael: this one is going to keep me from being confirmed to the supreme court. i think griswold is wrongly decided. i agree with the political
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result, the one of the things i try to get my students to do, s not read the constitution to the lens of their political beliefs. i try to get them to the realization that the constitution does not grant a right to everything you think would be a good idea, and doesn't prohibit everything that is a bad idea. the text has an objective meaning, and that is the edrock of our foundational rights. i think griswold is a classic case of a result seek persuasive reason and not finding it. in justice douglas's opinion, he cites the first amendment freedom of speech and association for the right to contraception. that is stretching things. he finds the third amendment right to not have soldiers quartered in your home. that supports it too. the fourth amend the prohibition against unreasonable search and
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seizure, and he keeps going, the fifth amendment, the night the minute, which is a simple rule that the existence of a bill of rights does not take away or state law rights. he extrapolates to the idea that this would be a good right. one of the best, one of the standard lawyer tricks that you world talk, is if the text does not support you, you abstract from the text of bigger principle. and you interpret the principal and read it back into the text to produce the results. if a lawyer is doing that, hold onto your wallet or purse, because they are trying to pick your pocket. i think as a descriptive matter, nobody nominated to the supreme court today, conservative, liberal, whatever, who says griswold is wrongly decided, so i am safe from that job. but it is interesting how the popularity of the result has driven, and to some extent,
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distorted our approach to constitutional reasoning. most people, 99% would support the result in griswold versus connecticut. but i think jeff is right, that becomes a critical prop but creation of a broad ranging right to privacy, even to creating an abortion right. at that point, people say, wait a minute. where did this right to abortion come from? the ninth amendment? the first amendment? how does privacy sustain a constitutional right to abortion? by the time you get to roe v. wade in 1973, look back at griswold in 1965 and say, this is probably were constitutional reasoning took a turn decisively toward a policy driven, as opposed to a text driven approach to constitutional law.
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jeffrey: much more to say about griswold. thank you for your courage and embracing the result. it is something no nominee to the supreme court is going to do today. douglas approach, harlan, focus on the fourth amendment and certain outliar laws that might be struck down. a fancy s.a.t. word. one from yale law school say when some laws are on the books and total outliars then the history and traditions have evolved in the way they may be strike down or the possibility that mike is right and grizwald was simply bad constitutional law. from contraception we now turn and we are penalty going to talk about a case called greg versus georgia from 1976. the story of the death penalty and its fate before the supreme court is such a dramatic one because the supreme court moves
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within a space from holding and furman and georgia case in 1972 that the death penalty is categorically unconstitutional. a few years later to holding and greg that the georgia death penalty statute is constitutional and is not cruel or unusual punishment under the eighth amendment. case ite about the furman and greg case in america's unwritten constitution and say it's an illust tiff case study saying excuses were stayed. congress and 35 states pushed back and the court responded in greg but upholding the death penalty. tell us about that and was it right for them to be responsive to the whims of public opinion? akhil: let's connect dots. i think griswold is right. think roe is problematic.
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in griswold, there is one state, the weird outlier state that made it a crime or couples to use contraception. and the court struck down an odd law that was out of sync with national norms which helped generate an idea what is fundamental in america. that was what i learned. in roe, the court struck down the laws of about 48 of the 50 states. 48 states were noncompliant. only new york of all the states had roe standards. one case striking down one law, and another case, all the laws. you better be able to show something pretty clearly in the constitution. now, let's pick up the death penalty. the constitution uses the word, unusual, cruel and unusual. that might be in invitation to count. at the time of the founding, it is not unusual to put ickpockets to death.
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over time, states say that seems a bit extreme, and at a certain point putting pickpockets to death becomes unusual, and therefore may be cruel and unusual, and therefore may be unconstitutional. in 1972, there was a year where no one was executed in america. people were convicted of death penalty offenses, there were lots of people on death row, but no one was executed, and the court thought, we are civilized now. it has become unusual. we proclaim it is unconstitutional. that was 1972. do we acount the approach? one of the reasons is no one was being executed is that the court was making it difficult to impose these capital punishments. the american people were not quite there, and they pushed ack tremendously after the furman case in 1972 with a round of new capital punishment laws, and the court did backtrack in
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in 1976. i think plausibly, because the point is, to look at actual state practices is a certain practice generally unusual. once a whole bunch of states, very recently, have passed new death penalty statutes, that is new information and evidence about a national idea about what is fundamental or not. so, counting is actually a way of sometimes thinking about two things. one, unenumerated rights. if something is in the constitution you enforce it. in plessy it's not equal but constitutional. i believe there are innew mexico rated rights. sometimes the text of the constitution itself may invite us to look at actual practice, a word like unusual. maybe a word like reasonable might invite recourse to social
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norms. but anyway, that is the answer. jeffrey: great. mike, crucial question which goes back to your law school with akhil. can the constitution evolved when it comes to the eighth amendment? the late justice scalia said when deciding whether a practice is cruel or unusual it might be appropriate to look at state constitutions and see if states have come to recognize a practice that is unconstitutional today that was not at the time of the framing. is there any state vote counting that was appropriate for the court between greg and fuhrman, or does the meaning of the eighth amendment remain unchanged? mike: that's a great question and a hard question. now, if you are a good faithful meaning constitutional interpreter you still recognize there are some provisions of the constitution that have a really relatively clear determinant meaning.
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like the president has to be 35 years of age. 35 means probably 35. there are other provisions that if you are faithful to the original meaning, the original meaning has a range. or like 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's an interesting question whether cruel or unusual punishment was a term of art that had a limited specific meaning. i have read good arguments that there is a prohibition on cruel innovations. that that was the understanding of it. if you think that cruel and unusual means that it is an unusual penalty today, then i think there is room consistent consistent with the original meaning for a practice to have become unusual when it was not unusually formed. i recoil a little bit about the
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supreme court in 1972 counting heads one direction, then in 1976 counting a social backlash and changing the interpretation of the constitution. there is something unsettling bout a wet finger to the wind, the supreme court does follow the election returns, right? still that wouldn't be a possibility i would exclude for a provision that it is explicitly standard if the framers in adopting a constitutional provision actually intended or meant for that provision to create some running room for different interpretations over time. and i think it is actually conservative, faithful to the constitution to accord that running room different results at different times. jeffrey: thank you for that. affirmative action. did you pay attention, ladies and gentlemen? contraception, the death penalty, and now it is time for affirmative action. this is why constitutional law is so crucial and
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exciting and important to study. the case is regionants of california vs. bachy. it's 1978. and alan sued the university of california after he's denied admission to the medical school after discovering the school reserved seats for people of color. he charged reverse discrimination, and the question is, is this a violation of the 14th amendment equal protection clause, and the civil rights act of 1964, which as akhil said earlier, vindicates the promise of the civil rights act of 1875 and forbids discrimination on the basis of race. there is no simple majority opinion. four of the justices say any racial quota to the system -- the dissenters say that the use of race is ok in higher education as long as it's used to help african-americans rather than to stigmatize or degrade them, and the key vote is cast by justice
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louis poul who says that -- louis powell, who says that rigid racial quotas are a violation of equal protection clause, but using race as a plus factor may be permissible because intellectual diversity especially in the university arena is a permissible goal under the first amendment, and taking the race into account as harvard college did, was permissible. akhil, there was a muddled opinion, if, anyone, was right and if you were writing it, what grounds for upholding affirmative action would you give? akhil: when i was young, i used to make fun of justice powell. pluses are ok, quotas are not. of course we know in the long run these pluses approximate quotas. just like when i was 20 years old, i used to mouth off about my father or something. as i have gotten older, my dad
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has gotten smarter. i feel the same way about justice powell. as i've gotten older he's gotten a lot smarter. this was maybe 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's an opinion that introduced in a big way into the national lexicon, this idea of diversity which can mean all sorts of things, but it is powell's opinion that injects hat. that said, so maybe using race to integrate is different from using race to segregate. maybe using race to make sure that our great national universities look like america, maybe that is not quite the same thing as using race to keep people who historically have been an underclass down
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and out. that is the argument you would make if you want to say affirmative action is ok. the intent of the framers of the reconstruction amendment is a little unclear, and what that means 100 years later when we are dealing with people, even thought it was ok to do affirmative action, they were dealing with real slaves who were released from bondage. it is a very complicated set of issues today. since you asked me, if i were riting opinion, way back event i wrote and you were editing i think the new epublic back then. but the fellow that i co-wrote it with is a man named neil, brilliant student of mine. i later introduced him to jeff and he's now jeff's
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brother-in-law. and if you want to read it a little bit more, neil and i wrote a piece called bachi's fate maybe that affirmative action was ok at least for a while, at least very, very limited. that was 20 -- more than 20 years ago. it's a toxic business, this taking race into account and brother paulson may have something to say about that. that is important in current america. jeffrey: let me ask you this, in the majority of descenting inions, justice thomas and others cite justice harlan that you said our constitution is colorblind and doesn't tolerate classes among citizens and they extract from that the proposition any classification on the basis of race especially
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in affirmative action programs is unconstitutional but their being say they are not 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
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applied. the principle is the same. i think if you stick with the principle of justice harlan's dissent you reach the right result. people disagree on affirmative-action. what i think is fascinating about the bakke case is how it of legal to 40 years confusion. four justices say colorblind. right? you cannot set aside slots in a medical school admissions class on the basis of a race. -- of race. these are for only one race. they say that is a principle that sounds an awful lot like segregation. the strongest justice today for that position is justice thomas, the african-american justice on the supreme court. four justices are pure colorblind principled people. four justices had a version of akhil in his 50's, which says you can adopt -- reverse
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discrimination is categorically different from direct discrimination against minorities and you can give quote's. they praise quotas. the one justice in the middle, justice powell, says quotas are unconstitutional, but a bonus or a diversity or a plus is ok. i think akhil in his 20's was right. basically a bonus, if it is meaningful, is a small quota, and a smaller infringement of the same principle. but 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 as to the principle. 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. and they've come up with these decisions in the middle, this
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is too much, this is too much, this is -- this is ok. this isn't. nd it's just total quagmire. jeffrey: well, without settling that quagmire, we will turn to the first amendment. if i can find my clicker. even if i -- here it is. let's read the first amendment and inspire ourselves with its beautiful words. "congress shall make no law respecting an establishment of religion or prohibiting the ree exercise thereof or -- perhaps there is no modern case that better incaps lates than our next case than brandenburg v. ohio, decided in 1969. this is an astonishing case that reminds us that america is is a global outliar in
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insisting speech can only be banned if it's intended to and likely to cause imminent violence. i want you to remember that standard because that's one the supreme court embraced in brandenburg. nothing short of an emergency can justify repression. these are words that come from justice louis brandeis inspiring opinion in whitney v. california where he says that because the final end of the state is to make men free to develop their faculties, the best response to evil counsel is good ones and as long as there's time enough to deliberate, then every idea, no matter how hateful, has to be admitted in the public sphere. there is a big debate today over whether hate speech should be protected by free speech. a bunch of undergraduates think they are not. if you are asked, you can tell people confidently that supreme court in brandenburg has set by
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-- said by overwhelming majorities that the first amendment does protect hate speech and can only allow speech to be banned if it is intended or likely to cause violence. the facts of brandenburg are striking, it is a ku klux klan rally. a guy actually gets up wearing a klan uniformat a rally and says unless something happens to the race situation in this country, white people are going to have to take revengens. and he is prosecuted under an ohio criminal cynicalism law which makes it 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 and the guy is in a klan uniformat a rally is protected by the first amendment because it is not directed at inciting or producing imminent lawless action. and is not likely to produce the action. it's a willing rally of klan
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people. they are just hearing hate speech they agree with. and remarkable principle, akhil , it does come from brandeis. why did the court embrace it in 1969 having come out the other way for so long? do you believe brandenburg in brandeis was channeling jefferson and the virginian and kentuckian constitutions and what else of the audience know? akhil: i am a fierce believer in broad political speech. 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. he 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
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them. we sharpen our own views and we hear the other side. why did it take so long? have a unique story about the first amendment. we've heard, for example, that the 14th amendment did promise racial equality, but that is not what we got in plessy v. ferguson and that was only in -- that only happened later in brown v. board of education. we heard that congress is really authorized to pass sweeping civil rights laws, but that actually the court initially in the 1883 cases did not get it right. it finally did, although not on reconstruction power grounds or -- but on 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. the core idea is no state can
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violate fundamental rights. no state can violate things in the bill of rights like speech, press, petition and assembly. association but it took the supreme court took a very long time to catch up to that. in general, congress passes -- yes, actually congress gives us -- the first congress the words of the first amendment. what happens within a decade? congress passes a lawmaking it a crime to criticize, you guess it, congress, with the sedition act of 1798 and courts willingly uphold 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 aren't prohibiting it now,but he is hopeful that
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day will come. what explains that? it's not unique to hate speech. i would say many ideas in the constitution are radical ideas. amazing. radical in a good sense. it takes sometimes america a long time to catch up to these commitments and promises that really are in the tax. -- text. and it's because they are really 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 actually reintroduce you to these amazing words and principles. jeffrey: so thanks for the plug, akhil. and mike -- kmbings akhil: books like brother paulson's. jeffrey: this is probably a good time for me to plug the book by tony morrow "landmark cases volume two."
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you can get it online and here at the constitutional center. mike, i guess two questions about brandenburg. is akhil descriptively right that the reason the court recognized this free speech principle in the 1960's and suddenly protest is more popular and the sedition act of 1917 was passed during world war i, at the time of the framing those prosecutions were much less popular? then i just want to ask you, was brandenburg, and is brandeis correct as an originalist matter? the constitution center is going to have a great debate next month in boston. campbell, who is a brilliant scholar, who wrote a piece for the "yale law journal" that says the first amendment was supposed to respect core political speech but maybe some restrictions on hate speech are ok. so i want to know was brandenburg correct?
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mike: i think 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 how unreasonable they may seem to the overwhelming majority of people. hort of, and this is brandenburg's line, 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 as policy, not because i like speech. i do like speech. i don't like all speech. i think that it is correct as a matter of the original meaning of the constitution.
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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 wrote, the freedom of speech, are broader than the principle. they were overbroad in protecting speech. they go beyond what european societies do, and i think it is something true and distinctive to america. whether it took the supreme court too long to get there can be fairly debated. the supreme court has not always been a vigorous protector of free speech. some of the most awful decisions of the supreme court came in affirming convictions for sedition for outrageous speech. one of the cases mentioned in the book i wrote with my son luke is a case called deb's v. united states. -- debs v. united states. eugene debs was a socialist presidential candidate in the early 1900s. he was basically prosecuted,
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convicted, and incarcerated for a harsh anti-world war i policy speech. can you 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 free-speech, i think it is a fascinating question of a sociological matter. but i am just a dumb lawyer, i don't know i can answer that descriptively. jeffrey: debbs runs for president in 1920 from a jail cell. mike: and gets a million votes. jeffrey: an astonishing story and inspiring story of constitution -- i won't say evolution -- but justices of different perspectives coming to recognize the insights of jefferson and madison. that freedom of opinion can't be alienated or surrendered to
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government under any circumstance because our opinions are the product of our reason. as creatures of the enlightenment we can't alienate our reason to the state because defines who we are as -- akhil: both are true. [laughter] jeffrey: well, i think madison had it first. we have another first amendment speech and it involves student protest. it is called tinker versus des moines. 1969. height of the vietnam era. here students are deciding to protest what's going on in the public sphere. we are about to have a march on washington of students who are not happy with our current gun control policy. nd 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?
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they say this violates their freedom of speech and the 7-2 majority opinion by justice , it 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, and -- 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 that are received at -- in school? and what to make the recent supreme court decisions, ncluding those upholding banners saying "bong hits for jesus," that they might disrupt school discipline? akhil, how important was tinker? was it correct? is the court right or wrong on cutting back on it in more
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recent cases? akhil: well, this ones a 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, four years ter i'm in high school and i write an op-ed for the school newspaper that the principal censors. and my teachers stood by me and they told me to read this case called tinker v. des moines which is all about the free peech rights of students and i read it and it really inspired me and i think it changed my life. i tell that story in a chapter i wrote in a book called "law of the land" about tinker v. des moines. so this is a case about
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students, about the next generation. all i can tell you is for me, when i was a student, it really inspired me to take the constitution seriously, to take rights seriously. it is what the national constitution center is all about. it's great to see at least one youngster right here in the third row so thanks for coming. this space is all about -- i think 2/3 of the people who come here on -- just a daily basis actually are youngsters learning about the constitution and for me that's what tinker v. des moines was. jeffrey: that's a beautiful story. 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
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as an original matter students have no first amendment rights at all. was tinker correct or is justice thomas correct? mike: tinker is a great case. i love the tinker case. even though it protected akhil, i would've liked to see him suspended by his high school principal. [laughter] mike: i don't have a story like that but one of my first jobs out of law school was working in defense of religious freedom for high school students. who wanted to form prayer groups or bible studies after school on the same terms as the chess club or the underwater basket weaving club or whatever it was. the case that we cited more than anything else was tinker v. can he my independent school district. even though it was a religious freedom case we weren't relying on the religious freedoms but said, look, this is the expression of views and you can't discriminate on the basis of the fact that it was religious speak and we used the
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tinker case. it is true the supreme court is been chipping back on a couple of decisions. there have been greater decisions that have been upheld on the decorum of student speech and whether it is offensive. if something occurs within a curricular context the speech kind of becomes more the school speech and it's easier to regulate. i actually disagree with that too. i disagree with the "bong hits for jesus" case. you say, what is this? a snotty-nosed high school senior, a man after my own heart and akhil's too shows up for the parade in alaska as the olympic torch is going through town and they're actually dismissed from school that day. school, show up for he goes straight to the parade and unfurls this banner that says "bong hits for jesus." he's just a kid. he's just being a wise guy. there is no message in it. they actually uphold the expulsion or suspension of him
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from school on the basis of hat he does at the parade. i no more like his speech than i 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. kids out there, go press your freedom of speech, the legitimate bounds of it. it can't be disruptive to the school environment and you can't interfere with other students rights to be secure and get an education. short of that you get to express your views. that's your constitutionally protected right so go out and use it. jeffrey: beautiful. united times" v. states. pentagon papers case. who has seen the post movie? it's great. go see it. this case is crucial to the
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movie where president nixon is using his executive authority to prevent the new york times from publishing these top-secret documents related to the vietnam war. as we know from the movie they have been leaked by daniel who worked for the department of defense. in the movie it's kathryn of "the e editor post" that makes the brave decision to publish despite the recommendations of her lawyers. she is trying to figure out what the new york times will do. lower court judges stop the presses for the first time in american history. the presses have been stopped for the fear that the exposure of information might be dangerous to national security. another judge refuses to stop the presses and is very proud of that and it's all up to the supreme court. as we learn from the movie, the first amendment protects the right of the new york times to
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publish the papers and justice black wrote one of his most memorable decisions, saying the word security should not be used to abrogate the fundamental law embodied in the first amendment. akhil, what is the legal principle that justified justice black's holding? was it correct as an originalist matter? was there a decent case on the other side? akhil: the first amendment talks about freedom -- the freedom of speech and the freedom of press. those were two different things at the time of the framing. and of course, the 14th amendment makes these things applicable against state and local governments like des moines, iowa. for example. butfreedom of speech comes from freedom of speech and debate in parliament. parliament is a place where people speak. they speak about broad political discourse.
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in england, parliament gets to do that. and america everyone gets to do that because we are sovereign, we are the parliament. all of us, the citizens, so that's very broad political expression which is what mike and i defend. and that is the brandenburg case. freedom of the press, the press there did not mean the media. it actually meant a machine like the printing press. stop the presses. and the idea was in england -- see, a printing press used to be a pretty expensive, pricey piece of equipment. not everyone had one. today you all do. it's called your lab top or your iphone. back then in the century before the constitution it was a very big heavy piece of equipment and the government of england thought they could license it, it could decide who could get a printing press and who couldn't.
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the freedom of the press was this idea that government shouldn't be allowed to license. you could print what you want. oh, but if the government didn't like what you printed maybe you could be punish after the fact. this came to be in america, in the first amendment, it came to be associated with this idea of no prior restraint, ok. the government can't license a printing press. can't have censorship rules in advance. printers get to publish. now, if they publish shuff that compromises -- publishes stuff legitimate ses government interest, there is a possibility of punishment after the fact. we can't stop the presses. in the after-the-fact punishment, you need to understand who is going to decide these words. not just a judge, but a jury is going to have to decide. a jury of your peers are going to see what you published and actually that contributed to national debate or not.
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the pentagon papers case is a narrower one. it's a great -- i haven't seen the movie. it's a great story. but it only stands for the proposition that the government can't stop the presses in advance. but the court actually acknowledges there's a possibility that once "the new york times" and "the washington post" publish this, oh, 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 rule of no prior restraint. now, the free speech clause was broader. jeffrey: that's an important wrinkle. catherine graham is afraid of being put in jail. because her and "the new york times" relied on the same
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source. mike, is that the correct originalist principle? if so, why didn't the nixon administration try to punish after-the-fact? do you believe that the natural rights section of the first amendment would be after the fact? mike: that's a good question of whether the first amendment would permit criminal prosecution of someone for pulishing the disclosure of a national security secret. that's not something that's decided by the pentagon papers case. it's interesting to see this case came up on a superfast track. i think it was two weeks from the beginning of the publication of the pentagon papers to the time it's decided by the supreme court. the supreme court does it in rapid fire fashion. the movie captures this wonderful -- i can't believe a law professor hasn't gone to see it. seen a movie about a supreme court case. jeffrey: take them. they'll love it. mike: but there is a range of opinions from the first
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amendment absolutists that say the government cannot restrict what the press publishes. to brennan's opinion, justice william brennan, who says you know, they might be able to restrict publication of national security secrets of the sort analogous to letting hitler know where the d-day invasion is going to be. that there are compelling interests that overrides. to a middle block of justices who say, we don't need to decide that because one principle that's firm is that the government may not shut down the press in advance. and here congress hadn't passed a law authorizing nixon to seek the injunction that he did. getting a court order stopping the presses is not only a first amendment violation but a separation of powers identification. the president is asking the court to write a law that congress didn't write. give us a case where congress passed a law and we might come
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out differently. now, there have been cases like. -- like that. i think there was an instance in the early 2000's, maybe 2006, where "the new york times" disclosed our signals intelligence operation. something about the n.s.a. wiretapping program. say what you will about the validity of the wiretapping program. the disclosure of the intelligence gathering information public did violate the specific criminal statute. it is an open question not decided by the supreme court whether or not you can criminally prosecute the press for disclosing a national security secret. i think the gravitational force of "the new york times" case has created a political atmosphere where, within hugely broud bounds, we do not go after the press for publishing things even where the statute seems to say we
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could. jeffrey: all right. we have two more cases. the next one involves the sixth amendment. in all criminal prosecutions the accused shall enjoy a right to a speedy and public trial by an impartial jury of the state and to have the assistance of counsel for his defense. our cases gideon versus wainwright which held that criminal defendants have the right to an attorney, even if they cannot afford one. if you want to learn the human story behind gideon and wainwright, read "gideon's trumpet" which inspired a generation to go to law school to defend the defenseless. it's an astonishing story. i won't ruin it but to say that gideon who handwrites his petition to the state saying that heright to a lawyer ends up had a getting one and being etried
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and found innocent. i wish i could take out the book, but i'm going to take out the kindle. i like to read the last chapter of the book when i teach criminal procedure because it is so moving. " after nearly two years in the state penitentiary, gideon was a free man. there were tears in his eyes and he traveled more than usual as he stood in a circle of well-wishers. and discussed his plans. his half brother, the air force sergeant, was coming home from japan and would adopt his children. that night he would pay a last visit to the bay harbor poolroom. could someone let him have a few dollars? someone did. this is anthony lewis. do you feel like you accomplish something, a news reporter asked. ell, i did." akhil, what was the principle that says you have the right to have the state pay for you to have a lawyer? how does that square with the history of the sixth amendment? why did it the court so long? was gideon correct? akhil: well, it says the right of counsel in the constitution.
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and after the 14th amendment that fundamental right, as with all the others, comes to apply against the states. the counter is, counsel only if you can pay for it, it is not government appointed counsel. well, it's not so clear at the founding, actually, it's true in capital cases in america the government paid for private counsel. but in noncapital cases it didn't. on the other hand, the fiction was in a noncapital case, you did have the benefit of legal counsel. that was called the judge. and the judge actually, if you couldn't afford counsel, would look after your interest. the judge is paid for by the government last time i checked. that actually was a form of government sponsored -- government subsidized counsel. over time it came to be clear that the judge can't be both the umpire and the coach for the defense team.
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you can't wear both hats at once. so are one idea is gideon the case is -- changing the precise way in which the government provides your counsel. not through a judge but through defender. publicly subsidized. that's one argument. whatever else it says the constitution provides for due process, which is about fair procedures. there is an intolerable risk of unfairness that an innocent person could actually be found guilty, not because he's guilty, but because he's not particularly learned in the law. he can't defend himself well in a jury trial with rules of evidence and all the rest. there is an intolerable risk that someone will be convicted not because they're guilty but because they're poor and that's not fair procedure, not due process of law, and as society becomes wealthier over time
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maybe it's more fair to insist that we provide more government resources, especially because government is pouring more money into prosecution than it used to before. so that's the second argument and one that does depend in part over time how the prosecution function is changing, how government is become -- how society is becoming wealthier. now, here's one final point. it's a 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. justice black's landmark for the court in gideon mentioned that prominently. that's a counting idea. and even the five that weren't, all of which were in the form of confederacy, always gave counsel for capital defendants and actually in big cities and even they gave counsel to a lot of people. just not every felony
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defendant. 25 states filed amicus briefs in the case. 22 of them on behalf of clarence earl gideon. so actually most of the states were very much on board with this principle and you see the john marshall harlan count as the second, the younger counting principle at issue in this one as well. jeffrey: ok, mike, i heard a lot of evolution in there. i heard counting, government changing, hand waving. so as an original matter, at the time of the framing, some states banned defendants from having counsel because of the vestiges of an old system where there was no counsel and you weren't sworn under oath and people weren't allowed to testify in their own words. at the very least, the sixth amendment was trying to allow you to have counsel if you could afford it. was the court correct to hold in the 16th that even if you couldn't afford it the state had to provide one or was
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gideon wrong as an originalist matter? mike: gideon was right and i think the principle was is pretty simple one. 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 forbid you from having a lawyer, but it is a right to have a lawyer and i think it's an entirely plausible reading of that in situations where someone can't afford one that the government would provide appointed counsel. so i am a fan of gideon. jeffrey: our last case. cats is time for the fourth amendment. u.s. the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be iolated. the central idea of the fourth amendment is to repudiate the hated general warrants and
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writs of assistance that sparked the american revolution. at the time of the framing you had to break into someone's house and violate their property rights to violate the fourth amendment. and in the 1920's, the supreme court in a 5-4 decision written by that underappreciated constitutional hero william howard taft wrote without physical trespass there was no fourth amendment violation. 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 amendment 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. anticipated fmri 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
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brandeis's insight. and said the fourth amendment protects people, not places. katz involved a phone booth. who remembers a phone booth? [laughter] wow. that was less than a quarter of the audience. that was about 20% of the audience remembers the phone booth. i do. you have to go inside them and you could close the glass door behind you and talk on the phone and court in this says ecause the suspected gambler, katz, closed the door and the expressed a reasonable right to privacy. that's reason expectation to privacy. there is so much to say about that test, including that it seems really circular. if the government says "citizens, we're going to track your g.p.s. devices door-to-door, then our expectations of privacy are
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diminished." the court may determine the future of electronic privacy by deciding whether or not katz applies to the tracking of movement and seizing ourself on record 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 or justin harlan? or if you were writing katz from a textualist, would you decide it on other grounds? akhil: well, i have a broad understanding of what applies as a search or seizure. triggering the fourth amendment. we don't live in the same physical universe. people can be intruded upon without a physical trespass using electronic surveillance techniques. so i like the idea of a broad reading of search and seizure. i would say that when you read the fourth amendment all that it means when there is a search
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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 don't think is true. it isn't true actually for all sorts of searches and seizures. metal detectors in airports are a search or seizure. if you are stopped and frisked that is a search and seizure. i have a broad understanding of what counts as a fourth amendment episode. i think all that requires is government reasonableness. rather than a warrant. the warrants that were generated after the katz case, wiretap warrants are issued by courts in secret. it will lead to fisa warrants which are issued in secret. i don't like the idea of courts acting in secret. they tend not to act so well when they act secretly rather than in open court so i don't
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love that. and then here's where i am really cookie. the framers of the -- kooky. the framers of the fourth amendment did not believe in an exclusionary rule. even if the fourth amendment was violated, if actual evidence of guilt was found that was admissible. here's a quote from a famous case. t matters not how you get it it would still be admirable." brandeis thought that it obviously followed, if the government violated the fourth amendment, that evidence would need to be excluded. we promise no founder said that. no founder actually ever thought that. no court in america, state or federal, remember, states have state constitutions with fourth amendments to apply against state government, no court in america ever excluded evidence in the exclusionary rule-like way in the entire century after the declaration of
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independence. an eclectic set of view. and broad understanding of fourth amendment, what triggers it, but only reasonableness is required. i'm not sure judges issuing secret warrants are the best way to go. i don't love the exclusionary rule which by the way doesn't help you at all if you're innocent. because if you're innocent they don't find anything and they still intruded upon you so i prefer a regime which is a founder's regime, when you're intruded on, sue them for damages, have a jury decide, a jury of your peers, sock it to them. the more innocent you are the more you recover and good for you. jeffrey: mike, the recent have been ases unanimous. that putting a gps on the bottom of someone's car or seizing their cell phone on arrest about a warrant violates the fourth amendment. the more conservative justices focus on private property violations, that was a problem in the gps case where they walked into a man's driveway
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and stuck the g.p.s. in the bottom of his car. in katz, was there a property violation to peg on or was katz wrong from an originalist matter? mike: i think katz is right from an originalist perspective. i think you are wrong about conservative justices. some of them have found fourth amendment violations when there is intrusion on property. one of my favorite fourth amendment cases to teach is one that i believe is called kyllo. which is written by justice scalia and there was never a more textualist originalist. he was relentless on this and served for over 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
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time does not alter the fact that it is intruding into the areas of the home where people -- it is a search of the home. it actually matches the literal words of the first -- of the fourth eafment -- amendment. i think similarly, to seize somebody's phone conversations, to wiretap, is a seizure. sure, it was not a technology known as a time, but it is an on illustration that the constitution's terms embrace new instances that fit into traditional categories. i think from an originalist point of view katz is clearly right. that wiretapping somebody's conversations is a search, a seizure of a conversation. i agree with an astonishing amount of what akhil said about the fourth amendment. it's a prohibition on unreasonable searches, not a prohibition on searches, per
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se. not all searches provide warrants. akhil has adopted the wonderfully conservative view that the fourth amendment itself does not provide an exclusionary rule. the fourth amendment is traditionally about damages remedy, suing police officers for intrusions upon your rights, not about excluding evidence. there really is no clear textual reason in the constitution why the police's error or mistake or even willful mistake should result in the exclusion of evidence at a trial. they should be sued for damages, but i think that is not a reason why the guilty should go free, just because the constable blundered. jeffrey: well, this is a wonderful place to end. first, it shows two old friends with very different approaches may converge on constitutional results and as you remind us, alito like justice and justice scalia that may diverge on methodology in
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fourth amendment cases because they have different views about how the constitution should be translated in light of new technologies. ladies and gentlemen, here is your homework. as you get ready to enjoy this incredible series of 12 landmark cases, first i want you to dig into the text of the constitution. i do want you to joan load if you haven't already the national constitution center's amazing interactive constitution which you can find in the app store. you can click on each of these amendments and see the leading liberal and conservative scholars in america such as akhil and mike with a thousand words on what they agreed it provision means and what they disagree on. it's an inspiring civic and educationalwill get you ready to think feast and about the cases. i want you to read the opinions. every law student learned this, you can skim. every law school student knows this. read the majority opinion, the dissent, then listen to the human stories. hear the amazing and inspiring brave lawyers on both sides who
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made their argument. at the end make up your own mind and be open to the possibility of separating their political from constitutional conclusions. be open to the possibility that you might think searches of the conversations are a bad idea but the fourth amendment prohibits it or they are a good idea but the fourth amendment allows it. that's what i learned from akhil so many years ago in that wonderful class. that's what the two of you learned as students debating each other, caring so much about the meaning of the constitution, recognizing that it has made for people, a fundamental different point of view just as home said. that's what c-span is about. that's why we are so excited about this series and so hrilled to share it with you. >> you can find this online, we'll take you back to the financial services round table spring conference, hearing remarks shortly by deputy attorney general rod rosenstein in a discussion on federal law enforcement priorities. >> impornt


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