Q: People in our viewing audience might not be familiar with the idea of constitutional interpretation. Can you talk about what it is, and why there are debates over how to interpret the document?
A: Well, our Constitution, unlike many that are currently in force around the world, is actually quite sparse. It was a plan of government. We decided we wanted to throw over the Articles of Confederation during the colonial period and have a plan of government for a national government. So pretty much the first part of the Constitution, the original part, is a plan of government: the legislature will get to do this, the President will get to do that, and so on; and the relationship between the federal government and the states. Then, because it was a deal of ratification, it was agreed that, “no, no, no, we just can’t have the powers of the government set out, we also have to have limits on powers.” So shortly thereafter we appended the Bill of Rights, and then there are amendments to the Constitution thereafter. But still it’s a fairly sparse document. And the reason why there are debates about its meaning is because some of the language is very open-ended. What does ‘equal protection of the laws’ mean? What does ‘due process of law’ mean? ‘Freedom of expression’, do you always have freedom of expression? There are so many concepts in there that are very broadly-based, that it necessarily means that somebody has to interpret what it means and there will be different meanings that people could give it.
Q: You talked a little about this and it might be worth covering in more detail. Do you think that the vagueness of some of the language has contributed to the longevity of the document? We’ve had much the same document for over two hundred years.
A: Oh, absolutely. There are two things that I think contribute to it: the open-endedness of the language; but also the fact that the Constitution, as was originally understood, is evolving. As early as the 1820s, 1830s, Chief Justice John Marshall said that it’s a Constitution we’re expounding. In other words, he identified the idea of a ‘living Constitution’, and the language itself seems to call that forth. So both the idea that it’s a living constitution and that the language is not self-defining, both of those come together and require us to interpret it and to have different thoughts about how that interpretation might unfold.
Q: In terms of who gets to do the interpretation, there has been contention over time about whose role that is. Can you talk about, for starters, the role of the courts in interpreting the document?
A: Well, actually there hasn’t been that much debate about the role of the courts since 1803, the case of Marbury versus Madison. In that case, the Supreme Court said that it’s the role of the courts as the body that’s given the authority to interpret the law, to interpret the Constitution, because the Constitution is a kind of law. So from that point forward, the courts have taken on this responsibility basically - some sharing with other branches - but basically it’s their responsibility to interpret what the Constitution means in cases that come properly before them. The debate is not whether the Court should play that role. Most people can see that that’s the Court’s role. But what are the kinds of interpretive tools shall they use? Shall they just be confined to the very language of the document? Shall they look at history? Shall they look at the intention of the Framers when they were crafting these provisions? Or should it be more open-ended? Should they think about values that have evolved over time? That’s where the debate is. The source of authority though, in terms of interpretation; the consensus is pretty much that the courts play that role.
Q: The other branches of the government - the executive branch and Congress - have at times asserted that they have a role in this process too. Can you talk about to what extent they do have a role, or at least what roles they have asserted over the course of history?
A: Well the courts, their role comes in cases that come properly before them. But not every case that involves a constitutional question will come before the courts. There are so few cases that the court itself says the Constitution gives to the President or to Congress - these are referred to as political questions. For example, it’s a political question whether the President and Congress have properly ended a treaty. The Supreme Court won’t involve itself in that. It’s a political question typically, about whether troops should be committed to a certain part of a battle; that’s not something courts decide. So there are a number of questions that the Constitution itself says should be decided by the President, or Congress, or both.
And then there’s another role for the other branches to play, too, because there are some issues that come first to Congress, and they never come to the courts. For example, if a piece of legislation went to Congress and there was some question about whether it was constitutional or not, the Congress takes seriously, through it’s judiciary committees, whether what’s being proposed is constitutional. And sometimes it will never see the light of day because the members of Congress decided that that legislation will not have been constitutional. So too with the president. Sometimes the president may decide to veto legislation or make counsel against the adoption of legislation, because the president thinks that it’s unconstitutional. So they have a role to play, too.
The really interesting question comes in when Congress and the president think differently than the Court. What should happen then in a case properly before the Court where the Congress and the President think differently than the Court? The Court has said, “If it’s a case properly before us and it’s a constitutional question, we resolve it. We’ll give some deference to your view but in the end it’s our job, finally, to resolve it again, in a case that comes before us.”
Q: An issue that’s come up that people have heard quite a bit about during the recent Supreme Court nomination process is this idea of precedent. Can you talk about the role of precedent as a road map for constitutional interpretation?
A: Well precedent, of course, and following precedent, is something that courts do in our system, whether it’s constitutional law or not. The idea being that if a case was previously decided, and a similar case comes in front of the court, it should pretty much decide it the same way. This gives continuity, predictability. It gives legitimacy to what courts are doing. It doesn’t leave people with the feeling that, “Gee, it’s whatever a particular judge or group of judges on any given day, depending on what they had for breakfast, will decide.” So it’s that feeling that the law should have that stability and predictability. In constitutional law, there’s a debate about how much force precedent should have, and the debate centers around the consequences of deciding a constitutional case. If the Court, or if a court, decides a legal question and gets it wrong and it involves a statute or something under the common law, it’s readily remedied by legislation. However, if a court decides a constitutional question and people think they’ve gotten it wrong, the only remedy is a constitutional amendment; and that’s really, really hard to get. So some say courts should be willing to give less weight to precedent in constitutional cases, which seems contrary to what, you know, your instinct might be - less weight to precedent in constitutional cases because of this freezing quality of their decision. And so if they think they’ve got it wrong, they should throw it out as soon as they see the error of their ways. Others say that precedent and the issues about predictability and legitimacy are as strong in the areas of constitutional law, so that the usual rule is you don’t overturn precedent unless the case can be made strongly for doing so.
Q: [Inaudible.]
A: Okay. Well I wanted to say that, of course, we can’t follow precedent at all times. The idea is that generally we should have a good reason to overthrow it. But there sometimes may be good reasons to overthrow a precedent, otherwise we’d never have any growth or change or improvement in the law, unless we go through this extraordinary practice of an amendment. And one good example of that, in the 1890s, the Supreme Court held that it was okay for the government to discriminate on the basis of race in all sorts of governmental programs and in all sorts of social programs. It was known as ‘separate but equal’ - Plessy versus Ferguson. That was the foundation for segregation by race in public schools. And that stayed on the books - the separate but equal doctrine - all the way until 1954, when Brown versus Board of Education overruled that precedent. So we are thankful, you see, that precedent isn’t followed always and forever, because otherwise we’d never have any improvement or growth, or recognize the error of our ways.
Q: In terms of changing precedent or overturning precedent and making new law, what are judges looking to? Is it a new set of facts that comes up before them? What are they looking at when they decide to overturn a precedent?
A: It could be a variety of things. Sometimes it’s a new set of facts. Sometimes it’s a new social context. Sometimes it’s a new understanding, if you will, about the law. Again, take the case of Plessy versus Ferguson. The Supreme Court said at that time that there was no stigma; there was no official insult in separating the races. And if anyone took it as an insult, it was because that was the impression that they put upon it; and that our legislature could reasonably think that people would be more comfortable if they were separated by race. Well, we realized, as the Court realized in 1954, that it does matter that the government is branding one group as so inferior as not to be able to associate with another group, and it was our understanding that changed. Sometimes the law itself might not be workable, the Court might adopt a test that it really finds it can’t, you know, apply satisfactorily. It’s had some difficulty, for example, in cases involving redistricting. It’s had difficulty in cases involving federalism issues about whether Congress could tell the states what to do. To articulate a test that can stand the test of time sometimes is difficult. Or sometimes what will happen, there will be a precedent on the books and the Court will undermine it with various other cases until finally they realize, “You know what, there’s nothing left to this precedent.” Sometimes we have an expression, we call it a ‘derelict on the waters of the law’, and they finally say, “Oh, let’s just sweep it away because we’re really not following it anymore.” So there could be a variety of reasons. But the point about it is, is that the burden is on the person who would argue that you should overturn the precedent. In other words, our natural default position is unless there’s a good reason, we should stay with the law on the books – again, for continuity, predictability, and legitimacy.
Q: [Inaudible.]
A: Generally speaking though, the bottom-line point about all this is that we do follow precedent, and the burden should be on the person wanting to overturn the prior case to show why it’s no longer valid. Because we do honor the idea of predictability, continuity, and legitimacy, and precedent is thought to uphold those values.
Q: In this film we’re going to be examining a number of different modes of constitutional interpretation. And it’s been interesting to me - looking back over the years - that those will ebb and flow. Can you talk a little about that fact and use some examples?
A: Well, in terms of interpretation, I think one of the major changes between the early twentieth century and where we are is that the courts in the past decades have been willing to give greater deference to the legislature, whether it be Congress or the states. Whereas today, if we’re talking about some protection of an individual liberty, the deference is less. And I’ll give you an example. Some of these things go in and out of favor, but around the turn of the twentieth century there was an idea that the government really had no business regulating your economic activities unless it could show some rather material health concern. So if it wanted to regulate the hours or wages that people worked, or the wages they were paid, or the conditions of employment, at around that time it was thought that there was this liberty of contract that one had and the government really had no right to interfere with an employer and employee. Whatever they bargained for, the government had no control, or should have no control over that, and we should simply, you know, allow that to be. And then there was this notion, well… and it came up against this deference to legislatures - but legislatures started to say, “Well we ought to be able to say something about that, and we ought to be able to regulate.”
And so the two sort of different views clashed with one another. Which would prevail, the liberty idea or the deference to legislatures? And at that time, the liberty idea prevailed, but later, deference to legislatures came into being. So you have these little sort of, I don’t know, rivers of thought, that sometimes they go together and sometimes they clash, but they do change over time. For example, today it’s widely recognized that legislatures have control over matters of contract, matters of employment, matters of hours and wages of employees. And the deference idea to the government goes hand-in-hand with that. Nowadays, if we think about raising the minimum wage, nobody even thinks about whether that’s constitutional or not. Of course the legislature should be able to control those things. So, different ideas have had prominence over the years in terms of what we make most important.
Q: And what are the factors at play as the Court shifts from interpretation to interpretation over the course of time?
A: Well, I suppose it follows really the thought in the country to some extent. I mean, when I was talking about ‘liberty of contract’, for example, at the time, at the turn of the twentieth century, it was sort of the heyday of laissez-faire economics, and you know, runaway capitalism, and the idea that people should be able to do, you know, do with their businesses what they will. And that influences the persons who served on the Supreme Court. They shared that ideology. They thought it was, you know, unconstitutional for the government to engage in what they thought was basically a redistribution of income. And for example, you’ll see this, you know, in the 1970’s when, under Chief Justice Warren Burger who was appointed by a Republican President, alive in the land at that time was a notion about expanding individual liberties in terms of protecting groups that hadn’t gotten equal protection, most notably women. And it was under Chief Justice Burger that the Equal Protection Clause was expanded to include protections against gender discrimination. Why was that? Well, that was alive in the body politic at the time. We think of judges, you know, as sitting up on some bench someplace, insulated by what goes on. But they’re a product as much as we are of, you know, the trends and the movements in the society.
Q: Another era that we might want to touch on briefly - because it has ramifications that reach us today - is the Warren Court. And if you could speak briefly about the approach that it brought to interpreting the Constitution, the issues that it felt were important …
A: Well, the Warren Court was quite fascinating, because, of course, it was in a position to oversee the fundamental change in race relations, and Brown versus Board, and the rejection of ‘separate but equal’, and the integration of the public schools. But it was so much more than that. It was also the Court that led what is sometimes referred to as a ‘criminal procedure revolution’. It was the Court that gave us Miranda versus Arizona and a whole lot of other protections for the criminally accused. The key there was that the Court finally admitted that due process of law was a basis to look at the way states were dealing with crime in the United States. Because previously, the idea was that state systems, they deal with crime. They’re criminal laws, they’re trials, everything. Pretty much the federal government, the Constitution, doesn’t have much to say about that. But it was a fundamental change when, under Chief Justice Warren’s Court, they said, “No, no, we’re going to look at this.” And once they started looking at it, they upset opinions across the board and established right to, you know, counsel; and rights to have your warnings before you are interrogated by the police, and that sort of thing. So that was another area.
Another major development under the Warren Court was something that was often not noticed, but maybe as important. And that is, the Warren Court was very interested in making sure that the machinery of democracy works well. In other words, maybe the Court shouldn’t be so much involved in what is decided, whether we should have rights to an abortion, or to this or to that. But maybe we should make sure that the people who make the decisions, mostly the legislatures, that these legislatures are really representing the people that they’re purporting to represent. And one of the most significant opinions in the Warren Court era was the ‘one person, one vote’ decision: the idea that votes should be proportioned in districts according to the population. That was extraordinary, because that really changed the whole face of democracy in the United States. Previously, you had situations where one representative could represent twenty thousand people, fifty, a million people in a city, one representative; and then one representative represent five thousand people in a rural area. It was so skewed because we didn’t have this principle of one person, one vote. And Chief Justice Warren himself has said that he thinks that that was one of the most important decisions of his era.
Q: So let’s talk a little bit about the schools of interpretation that we have today. If you can lay out some of the major ones and describe what they’re about.
A: Okay, there’s a school that’s known as the textualists and, as the name suggests, they think that judges should interpret the Constitution by staying very closely at home with the words of the Constitution. This is not that popular a view because it’s so unrealistic. The words, as we said before, are variously described as open-ended or broad or opaque. And so if you just stayed with the words, you couldn’t get very far along with some of the provisions; some you can. For example, it says that to be elected to the Senate you have to be thirty years old. Fine. But again, what does something like ‘freedom of expression’ or ‘unreasonable searches and seizures’, what does that mean? So textualism only carries you so far.
Another school…
Q: [Inaudible.]
A: Okay. One school of thought is textualism, which, as the name suggests, that you look at the text to figure out meaning. Now everybody agrees that you should start with the text; but the textualists say that that’s where you should end too. You should get your principle of interpretation from the text. But it’s quite unrealistic and that’s why it has not really that many adherents, because there’s language in the Constitution that is very specific. For example, to be elected to the Senate you have to be thirty years old. But then there’s other language that’s very open-ended and opaque and the text will not give you an answer, it’s not self-defining. What does ‘unreasonable search and seizure mean’? What is ‘freedom of expression’? What is ‘due process of law’? So that’s one school and it has only a limited following because, as I said, it really is unrealistic to think that you could derive meaning from the words alone.
Another school is a school known as ‘originalism’. And the originalists say, “Okay, well you look at the text but you also look at the history and the whole structure of the Constitution and you try to figure out what the original meaning was. What was intended by the Framers of the Constitution, by looking at these sources.” That’s problematic, too, for a variety of reasons. If you’re really trying to get to the thought processes of the Framers of the Constitution, first of all, do we know, can we ascertain what they all collectively were thinking? And in any event, is it their thinking that counts or is it the ratification debates in the states when the Constitution was being ratified? And again, is it a collective view or do you pick out prominent people, what they thought? So it’s hard to get underneath what the original thinking was.
But then, a more serious critique of that view is that even if you get underneath what the original thinking was, maybe the original thinking was that it’s a living Constitution and it should evolve. And so maybe it was an invitation, actually, to go outside of the immediate text, you know, the structure or the history. And again, looking at Chief Justice Marshall deciding cases in the early 1800s, he said it was ‘a living constitution’ and he was around at the time the Constitution was adopted. So it’s pretty hard to limit the interpretation of the Constitution even to those sources - text, history, structure - trying to figure out what the original Founders were.
After that though, you run into trouble from a different direction. The reason why the originalists want to stay close to home with the meaning at the original period of adoption is because otherwise they fear that you license judges to go off on, you know, a sea of interpretation of their own making. As Justice Black once said, it’s as if they’re a continually-sitting Constitutional Convention if they have no limits. And so no one says that there should be no limits, but once you take the interpretation out of the history, the structure, and the text, what are those limits to be? That’s the real hard question. And there’s a lot of disagreement about that.
Even if you say, “Well, I subscribe to a living Constitution. I subscribe to the idea that meaning evolves over time.” What are the sources of that meaning? Most of the justices will, even if they subscribe to a living Constitution model, will always say that what we’re looking for are indications, societal indications. Let’s look and see how, over the whole course of time, we’ve evolved. Let’s look and see how, over the whole course of time, state legislatures have behaved. Let’s see, over the whole course of time, whether there’s a basic principle that we can derive from how our society is governed. Nobody admits to saying, “Well, we’ll just look at this ourselves and see what we think,” because that would be illegitimate.
So between the two poles of simply allowing justices to decide however they want, and binding them - like binding them to the mast, and going through the storm of interpretation, only looking at the text, or something like that. You’ll get all sorts of ranges of views in the middle.
(Pause for technical adjustment.)
A: Okay. All right. The burden on those who believe in the living Constitution model is well, what sources will they turn to? No justice would say that he or she is free to simply interpret the Constitution according to their own personal views. And they always disclaim that, you know. But then what? What would they turn to? And pretty much what you will find is that justices will say, “Well, we do want to look at the history. We do want to look at what was meant at the time, but we want to look more broadly. We want to open the lens a little bit. We want to see how the society has evolved over time. What values have we as a people, over time, shown that we’re interested in? What have state legislatures done? How have we evolved in terms of, you know, cases and opinions on particular questions? Where have we moved over time?” And if you look at that sweep of history, you might derive from that some basic values and ask whether, “Gee, even thought the Equal Protection Clause had everything to do with racial discrimination, and absolutely nothing to do with gender discrimination, it was written in broad terms about all persons being entitled to equal protection of the laws.” And maybe if we were trying to identify characteristics of people that had nothing to do with their ability to perform, but nevertheless were being used as a way to keep them down unrealistically - in terms of their ability to perform or anything - that they could add to society just because it was a man or a woman, or someone had blue eyes or brown eyes, the Court said, “What we’ll try to do is we’ll try to derive what the fundamental meaning was and then see if it has a new application.” That’s pretty much what they do. But they always have this critique against them that it’s illegitimate for them to look beyond these narrow sources, because their whole license to interpret the Constitution is to figure out what we as a people said in 1789, 1791, or 1868 when we adopted the Fourteenth Amendment. And they have to have an argument about why it’s okay for them to broaden the lens of interpretation.
Q: Let’s talk a little bit about - although we won’t have a case study about the right to privacy in the film - it’s an area where it’s very easy to see the distinctions between different modes of constitutional interpretation. So can you talk a little bit about the debate over unenumerated rights in the Constitution?
A: Okay. The debate over unenumerated or unlisted rights in the Constitution really does come into play when we talk about the so-called ‘right of privacy’. There is, in the Fourteenth Amendment, a protection against the government intruding into your liberty without due process of law. And most people used to think “Well, procedure - due process - how they take away your liberty. What, they have to give you a trial before they put you in jail?” that kind of thing. But then some people started saying, “Well you know what, liberty has a broader meaning than that. And although the government regulates our liberty all the time, tells you how fast you can go in your car, tells you, you know, you have to pay taxes. I mean all of those things restrain our liberty. And we don’t care very much, because we think that’s what governments do, they regulate in this social economic sphere.” But then the idea grew up, “Well you know what, maybe there are certain liberties that are so important, that are so meaningful to us as individuals, maybe if the government regulates those liberties they really ought to have a more powerful reason, a more powerful justification.” And this idea first came into being, oddly enough, in terms of liberty in contract, whether we had a liberty of contract, and to enter into contracts of our own making without any interference.
But in the modern period, it was first identified in a case called Griswold versus Connecticut about whether the government could tell people that it was unlawful for them to use birth control. And in Griswold versus Connecticut, the Court struggled with this regulation - because it said, “You know what, it involves the government in deciding whether married people should be able to use birth control or not. That seems to be a choice or a decision that’s so private and so individualistic and so outside of any boundary line of what would be legitimate for the government to get into, that it decided that that law was unconstitutional. Well that was in the 1960’s. That set off a whole string of cases that inquired into the question, “Well, gee, if there are certain rights of privacy that get special attention whether you can use contraceptives or not, are there other rights of privacy that should get that special protection?” The most controversial of which of course, is the right of a woman to have an abortion or not. But there are others as well. There are rights, you know, to live together as a family even though zoning ordinances might prevent that. And so the whole question about well gee, you know, is the realm of privacy, this intimacy, these choices that we make about whether to have children or not have children, whether to use contraceptives - is there such a sphere of protection? And that’s where you get these unenumerated rights.
Some justices on the Court say that that whole thing is illegitimate. This is not an invitation for the Court to find this new realm of protections; it’s still a matter for the legislature to determine. Others say no, it was never meant that regulation could go so far as to touch these very personal, intimate, life-defining choices that we make unless the government has a really good reason.
Q: It seems to me that the engines for the generation of these kinds of unenumerated rights are the Ninth Amendment, and the Due Process Clause of the Fourteenth Amendment. Can you talk a little bit about what those provide for, how they’re looked at, and why they’re pertinent to this debate?
A: Well, the Ninth Amendment is quite interesting because pretty much until the 1960s, nobody paid much attention to it. To understand the Ninth Amendment you have to put it in context of the Bill of Rights that was adopted after the main Constitution was adopted. There were ten amendments that were actually adopted that protect, you know, freedom of expression, search and seizure, and a lot of other individual liberties. But then, you see, people were worried. They said, “If we adopt this Bill of Rights, it says that the government can’t intrude upon our liberties in these ways. Won’t people naturally say ‘Oh, but you know what, since this is the list, maybe there are other ways that they can intrude upon our liberties that we didn’t think of yet or maybe we didn’t set out precisely. So we’re worried that by having a list, it’ll mean that there are other things that we do want protected, but they won’t be protected.’” Well Madison, who drew up the lists, said, “Oh, I have an answer for that. We’ll put in there the Ninth Amendment, that says that the enumeration of certain rights of the people should not be construed to deny or disparage others retained by the people.”
So basically it’s a rule of construction. We’re saying here’s a list, here are your rights but, you shouldn’t read this list in a way to suggest that there aren’t other rights that you could also enjoy.
So, for a long time we thought about the Ninth Amendment as simply meaning - all it means is that here’s a list, there might be others. We don’t know what the others are. We don’t know who is going to enforce them. But it doesn’t mean that you should read these as limited to those. Until more recently the Court has, in a funny way of citing to the Ninth Amendment, suggested that, “Yes, you know what it means, it means that we are authorized, in interpreting the Constitution, to think of other rights that have substantial constitutional protection.” So that’s how the Ninth Amendment comes into it. They think it’s a license to say, you know, there are some other specially protected rights. The Ninth Amendment is cited, for example, by the lead opinion in the Casey case that upheld Roe versus Wade, the abortion decision.
Now, in the Due Process Clause, it’s not due process so much; it’s this idea of liberty that I mentioned before. The Fourteenth Amendment, for example, says, “Nor shall any state deprive any person of life, liberty, or property without due process of law.” So it’s the Due Process Clause, but the focus is on the word ‘liberty’. And there, the interpretation has been, “Well you know what? Maybe this ‘liberty’ word has special meaning depending on the kind of liberty that the government is trying to regulate.” And as I said before, there’s this notion that’s grown up - there are some liberties that are so personal, so intimate, so life-defining, about whether to have a child, about how to raise your children, whether they’ll be brought up in a certain religion or not. All of these things are within that sphere. But the key word there is ‘liberty’ and what does it mean. Here again some justices think that they are authorized to take that word liberty, and construe it to be almost a reservoir of specially protected rights. And that’s where the debate is.
Q: Just a couple questions in summary. It was interesting when I was watching the Supreme Court - the debate over the Supreme Court justices in the Senate Judiciary Committee - that there was an idea that was being discussed … originalists were saying that Supreme Court justices should not be relying on foreign court decisions or foreign legal interpretations in the formulation of U.S. Supreme Court decisions. Can you talk a little bit about that? It’s a debate that’s starting to come to the fore [inaudible.]
A: Well, there are a couple of areas in the Constitution that are really open-ended and cry out, if you will, for reference to some other sources to figure out meaning. One of them is the ‘cruel and unusual’ protection. We have protection against cruel and unusual punishments, and that has come up in the area of the death penalty. Is the death penalty cruel and unusual? Or are certain methods of imposing the death penalty cruel and unusual? Now, how do we know what’s cruel and unusual? Well, what we do know is that our sense of what is cruel and unusual has varied over time. We have become, in some ways, more civilized. And we do refer to other countries that we think are similarly civilized that are democratic, are constitutional democracies that adhere to human rights, and so on. So in a couple of cases involving the death penalty and involving the meaning of ‘cruel and unusual’, some justices have made reference to European countries. Other justices have taken umbrage at this, almost as a form of judicial nativism. “We can only refer to things in the United States, and it’s illegitimate for us to look at other countries.” Well, it’s hard to know what to make of that debate, because the justices who make these references to foreign countries aren’t saying that they’re controlling or anything like that. They’re just saying for guidance, what have people around the world who have a similar commitment to democracy, constitutionalism, and human rights; what have they concluded and does that help us puzzle our way through a question about what is cruel and unusual punishment?
It’s also come up in another area, and both areas where it’s most prominent are hot button areas. So you would imagine that there would be inevitable debates of whatever kind. And that is in the area of protection of gay rights, or the protection of persons against laws that punish them for engaging in, for example, sodomy. There was a reference to foreign countries and their evolution in this area as well, and that was criticized by those who oppose it too. But there again, it’s not as controlling, it’s not as precedent that we should follow. It’s just a form of guidance to say “Look, in terms of expanding protections against what government does to punish us for behavior that’s wholly personal and intimate and that sort of thing. Might we take some education or guidance from what other countries on whose model we are either based or we think we are similar to see what they have done.” It’s just a way of looking at what others have done. So, the debate is a bit overblown, I think, because it’s portrayed as being guided by foreign countries. Well no, it’s just simply saying let’s get the benefit, the same way we would get the benefit of the best minds about a particular topic, you look at how other societies have done it.
But yes, that’s an issue. And I’m not sure that it has a lot of significance at the end of the day.
Q: I’m also curious - as you look at the Supreme Court over time and you look at how modes of interpretation have changed - what do you think the role is of judges who come to the Court and may have policy preferences one way or another on a particular issue? And how those things have had an effect on interpretation over the course of time in terms of, perhaps, the political aspects of some of the decisions?
A: Well you know, it depends on how deeply felt a judge’s ideology…
It’s, I think, naïve and foolish to think that judges don’t come to the bench without an ideology - particularly those who have spent a long time developing that ideology and working in it’s behalf - let’s say, in political roles and that sort of thing. And they do, in fact that’s one of the reasons why they’re picked by presidents on occasion, because the president wants that ideology represented on the Court. You often hear people say, “I want a judge who will not legislate from the bench, who will just say what the law is.” It’s impossible. We’ve already established that the language is not self-defining. So what ideology do you bring to the bench and does it really matter? Well yes, it absolutely does. I remember Clarence Thomas saying that if he were to serve on the Supreme Court he would strip down like a runner and bring nothing into the chambers there. He would look at the case and have no other influence. Well that’s flatly untrue.
And I mean, we can’t get outside of ourselves and we do bring notions about how the law ought to be interpreted. If you’ve been in a legal career, if you’ve served as a judge before, it’s almost inevitable. So the judges will bring something to the table and they do have highly developed views. The other thing that you hear which is kind of misleading is, “Well, but we’ve had presidents, they’ve appointed people to the bench and then they’ve been disappointed because it turns out that they really didn’t think as they thought they would think.” Well you know what; it more means that the president didn’t do his homework. Because, for example, when Justice Frankfurter assumed the bench, he was appointed by Roosevelt; and Roosevelt was, you know, a New Deal, regulatory kind of guy. Well so was Frankfurter - but as a legislator, or someone who is in support of legislation. When he was in the Court he thought the Court should have a different role, it should step aside to the legislature.
So if there were good vetting of that justice he wouldn’t have been surprised. Some justices do change over time, for example, Justice Blackman, his views about death penalty changed over time. He did become what one would describe as more liberal, in terms of protecting individual liberties. But if you look for a candidate, as more recent nominations have shown, who has been steeped in a particular ideology over one’s entire professional life and is picked because you believe that they will pursue that ideology; I think you find fewer disappointments by presidents. And it really can make a difference, because they bring that stuff right to the table.
Q: One concept I want to touch upon briefly because it affects at least one area that we’re looking at, is this idea of incorporation. What parts of the Bill of Rights have been incorporated against the states? Can you talk about what that is and what that means for people who are not familiar with that?
A: Okay, it’s referred to as ‘the incorporation debate’. And when the Fourteenth Amendment was passed and it provided for equal protection of the laws and further protections of due process of law, it was a set of protections against states. Because prior to the passage of the Fourteenth Amendment, which is 1868, the Bill of Rights that’s attached to the Constitution - First Amendment freedom of expression, Fourth Amendment unreasonable searches and seizures - they were protections only against the national government; Congress, the President and so on, not against the states. If you had some claim that your rights were violated by the states, you had to go to your own state constitution. And 1868 comes along, and the Fourteenth Amendment says the state shall not violate equal protection or due process of law. And a big question arose at the time - was that language meant to be a kind of shorthand way of not just protecting equal protection, whatever that means, or due process of law, whatever that may mean, but a shorthand way now of incorporating the protections of the Bill of Rights now in state and local governments as well as the federal government? And for a long time that view didn’t have any traction.
But in the twentieth century, particularly at around the period of the 1960’s and the Warren Court Revolution, the Warren Court started to open up the possibilities of what was incorporated and what was not. And pretty much if you look at the first ten amendments, if you look at the separate provisions, about half of them referred to criminal justice matters - right to council, privilege against self incrimination, and so on. And during the Warren Court era in the sixties, they said all of these things are incorporated now against state and local governments. And that was extraordinary, because now all of these things would apply in state and local governments when they were dealing with criminal justice. The upshot of the whole thing though, at the end of the day, where we are today, pretty much all of the Bill of Rights has been incorporated, case by case by case. So now it’s not just a protection against the federal government, but also against state and local governments.
There are a few that haven’t been incorporated. First of all, the entire First Amendment, freedom of expression, religion, and so on, that’s incorporated. The Second Amendment about whether you have a right to bear arms and whatever that means, it’s hard to think of that as an incorporation issue because it talks about the right of the state militia. So it’s directed to states, whatever it may be. The Third Amendment deals with quartering troops in houses and when that’s okay, when it’s not okay. It hasn’t come up a lot, so we don’t know, but I presume that would be incorporated. Whether the states are putting, you know, the National Guard in your house or the federal government’s putting the military in your house. The Fourth Amendment protection against unreasonable searches and seizures - that has been incorporated. The Fifth Amendment has almost entirely been incorporated, except for one provision. Under the Fifth Amendment, there’s a provision in there that says that if the federal government is going to bring a criminal case against you, if it’s a felony or a major case, they have to get a grand jury indictment. That’s the way they have to begin that case. That has not been incorporated against states. So state governments can bring a criminal case, even a very serious criminal case, against you by just a prosecutor filling out a form known as ‘an information’. If you have a grand jury right in a state, it’s only because the state constitution says so, because that provision has not been incorporated. But everything else in the Fifth Amendment privilege against self incrimination is incorporated.
The Sixth Amendment guarantees you a right to trial, you know, counsel in criminal trials. That’s been incorporated. The Seventh Amendment has not been incorporated. What is that about? The Seventh Amendment says that in all civil cases where the amount in controversy is twenty dollars or more, you’re entitled to a jury trial. Well no one has ever thought that that was so fundamentally important that the Fourteenth Amendment incorporated that now against the states. The Eight Amendment protects against cruel and unusual punishment and excessive fines, and consensus is that that’s incorporated against the states. And finally, the Ninth Amendment says that any rights not enumerated, we shouldn’t construe it as there not being other rights. And the Tenth Amendment says that all powers, not rights, all powers not granted to the federal government are reserved to the states or to the people. And so the last two provisions of the Bill of Rights don’t lend themselves to incorporation.
So, I’ve gone through this laundry list, as I said, the upshot of which, except for the Seventh Amendment jury trial, civil cases, and the right to begin criminal prosecutions by information by a prosecutor filling out a form - pretty much everything we value in the Bill of Rights now applies not just against the federal government but also against state and local governments.
Q: In closing, tell me a little bit about the mode of interpretation - or modes - that the current Supreme Court has been using; and what the ramifications are of introducing our two newest justices.
A: Well maybe one way to think about this is to think about the hot button issues and the cutting edge issues and their modes of interpretation. There’s a school of thought that says that the powers of the federal government should be construed narrowly, particularly as against states - Federalism, let the states do the work. Those who subscribe to that view, which is more of an originalist kind of view, have been agitating, and with some success, for limits on Congress’s power to pass legislation. But they’ve been doing so in this sort of power consideration about where the power should lie. But there’s another sort of set of issues that arise, and it doesn’t matter who is exercising the power, whether it’s the federal government or the state government, and this other issue is about how rights should be interpreted. Should they be interpreted expansively and strictly against whatever power’s exercising it, almost a libertarian view? But even in that there’s a breakdown. Not all rights are…
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... defer to them and the Court shouldn’t be very active in protecting rights. Then there’s, you know, another slice that says “No, the Court should be very active in protecting rights,” but they break down into differences about which rights are worthy of protection. On the one hand, you have those who want to protect property rights - eminent domain and protection against the government…
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A: Okay, there are different strains that influence the justices in how they look at some of the hot button issues. But one fault line is how you look upon the allocation of powers in the government. There are a number of justices, sometimes they’re a majority, depending upon the case, who believe that we need to realign the powers between the national government and states. They think that the federal government, Congress, exercise its powers too expansively; that states should have more protection. That’s a Federalism kind of debate. Then there’s another debate among the justices in terms of liberties. Some would say we don’t care who is exercising the powers, that there are some liberties in the Constitution that are really special and important and no government really should be able to interfere, unless they have a really good reason. But this breaks down depending on which liberties you think are important. There are some justices who would exalt and elevate rights of property - eminent domain, regulation of business activities - believing that these things should be left free from government regulation, no matter what level of government is exercising it. There’s another group that believe that so-called rights of privacy are the ones that should get the special protection: abortion, contraception, rights to live together as a family, those sorts of things. So they would argue that yes, the court should be in there as a gladiator protecting rights against government intrusion. But they disagree fundamentally about which should get on that list of specially protected rights.
Q: Is it too early to tell how the appointment of our two newest justices may affect this matrix of considerations? Or do we have hints from their prior decisions, about which way things may go in terms of this pendulum swing?
A: Well we do have some hints, I think, from looking at the records of both of these justices, Chief Justice Roberts and now Justice Alito; in that both of them are likely to fall along the fault line of: a) Thinking that the state should exercise more powers relative to what the federal government does. And b) taking a narrow view of the so-called right of privacy; and a more expansive view of rights of property and resistance to government regulation of businesses and commercial activity.
Q: [Inaudible.]
A: Okay. Inevitably there are going to be debates because the Constitution is the basic charter of government, it’s meant to endure for the ages. And therefore, to cover all sorts of things that can happen a hundred, two hundred years from when it was adopted could hardly be predictable. That’s number one. Number two, the language of the Constitution is, in many areas, very open-ended and opaque. And so to figure out what it means, inevitably we’re going to have different theories about sources of interpretation and so on. We might be able to figure out that the president has to be thirty-five years of age, but what does it mean to provide due process of law to people? So the nature of the Constitution - being one that’s to endure for the ages, and also one that has language that can’t be self-defining - almost insists that we have theories of interpretation. And of course, once you open that door, you’re going to have different theories.
