Expert Series – The Constitution in 2020
Articles,  Blog

Expert Series – The Constitution in 2020


[APPLAUSE] Gary Stern: GOOD EVENING. I WANT TO WELCOME YOU
TO THE NATIONAL ARCHIVES AND OUR BEAUTIFUL
MCGOWAN THEATER FOR THIS VERY
DISTINGUISHED PANEL DISCUSSING THE CONSTITUTION
IN 2020, AND I ALSO WANT TO WISH YOU
A HAPPY CONSTITUTION DAY. I’M GARY STERN, GENERAL COUNSEL
OF THE NATIONAL ARCHIVES, AND I HAVE A REALLY GREAT JOB. NOT ONLY DO I GET TO DEAL WITH SO MANY COOL
HISTORICAL DOCUMENTS– THE 9 BILLION OR SO PAGES
OF THEM THAT WE HAVE IN THIS BUILDING AND BUILDINGS
ALL OVER THE COUNTRY, STARTING, OF COURSE, WITH OUR
FOUNDING CHARTERS OF FREEDOM: THE DECLARATION OF INDEPENDENCE,
THE CONSTITUTION, AND THE BILL OF RIGHTS,
WHICH ARE HOUSED JUST TWO FLIGHT ABOVE
IN THIS BUILDING– BUT I ALSO GET TO COME
TO THESE GREAT EVENTS THAT WE HAVE IN THIS THEATER,
AND EVERY ONCE IN A WHILE, I’M ASKED TO MAKE
THE INTRODUCTIONS, SO I’M ENJOYING
THIS OPPORTUNITY. TONIGHT’S EVENT IS PARTICULARLY
DEAR TO MY HEART BECAUSE I AM A GRADUATE
OF THE YALE LAW SCHOOL, CLASS OF 1987, AND ALL OF TONIGHT’S GUESTS, OF COURSE,
TEACH AT THE LAW SCHOOL AND EACH OF WHOM I FEEL
SOME CONNECTION TO. ONE OF THEM WAS
A CLASSMATE OF MINE. ANOTHER IS THE NEW DEAN
OF THE LAW SCHOOL. THIRD HOSTS MY FAVORITE
LEGAL BLOG, AND THE FOURTH COVERED
THE SUPREME COURT FOR THE “NEW YORK TIMES,” WHICH
I AVIDLY FOLLOWED AND ENJOYED. SO, WITHOUT FURTHER ADO,
LET ME TURN THE EVENING OVER TO OUR MODERATOR
LINDA GREENHOUSE, WHO, SINCE RETIRING FROM
THE “NEW YORK TIMES” IN 2008 AFTER COVERING THE SUPREME COURT
FOR 30 YEARS, IS NOW THE SENIOR RESEARCH
SCHOLAR IN LAW, THE KNIGHT DISTINGUISHED
JOURNALIST-IN-RESIDENCE, AND THE JOSEPH GOLDSTEIN
LECTURER IN LAW AT THE YALE LAW SCHOOL. LINDA? [APPLAUSE] Linda Greenhouse:
THANK YOU, GARY, AND THANK YOU FOR SPENDING PART OF YOUR CONSTITUTION DAY
WITH US. SO, WE’RE GONNA SPEND
THE CONSTITUTION DAY OF 2009 IMAGINING THE CONSTITUTION
IN 2020, WHICH, OF COURSE,
IS THE TITLE OF THE BOOK. I’LL INTRODUCE THE PANELISTS
JUST REALLY QUICKLY. THEY ALL HAVE ENDOWED CHAIRS
AT THE YALE LAW SCHOOL, AND I WON’T GIVE THE TITLES
OF THEIR ENDOWED CHAIRS, BUT JACK BALKIN, WHO,
AS GARY MENTIONED, IS ALSO THE HOST
OF A LEADING LEGAL BLOG CALLED “BALKINIZATION”
WHICH I COMMEND TO ALL OF YOU. EVERYBODY SHOULD CHECK IT
A COUPLE OF TIMES A DAY. YOU NEVER KNOW
WHAT POPS UP THERE. JACK AND REVA SIEGEL
ARE THE CO-AUTHORS OF “THE CONSTITUTION IN 2020.” ROBERT POST IS DEAN
OF YALE LAW SCHOOL. SO, WITH THOSE VERY BRIEF
INTRODUCTIONS, I THINK I’LL GIVE REVA
THE CHANCE TO JUST TELL US A LITTLE BIT ABOUT THE BOOK
AND THE ORIGINS OF THE BOOK. WHY “CONSTITUTION IN 2020”? Reva Siegel:
SO, THE GENESIS OF THIS BOOK, I GUESS I WOULD LOCATE IT
A LITTLE BIT AFTER 2000. A NUMBER OF US WERE CONVENED
TO DISCUSS CHANGES IN THE CONSTITUTIONAL
INTERPRETATION OF CONGRESS’ RIGHTS TO ENFORCE
THE 14th AMENDMENT, AND AT THIS MEETING,
SOMEONE NAMED DAWN JOHNSON, WHO IS NOW A NOMINEE TO HEAD
THE OFFICE OF LEGAL COUNSEL, TOLD US ABOUT DOCUMENTS
THAT DATED FROM THE JUSTICE DEPARTMENT
DURING THE REAGAN YEARS, AND THEY SET FORTH A BLUEPRINT
FOR THE CONSTITUTION IN 2000, AND THE CONSTITUTION IN 2000
IN THESE DOCUMENTS– IT WAS A VISION AT THE TIME
THEY WERE MADE; THEY WERE MADE IN THE 1980s– WAS DESCRIBED AS A DOCUMENT
THAT WAS TO BE INTERPRETED RIGHTLY AND WRONGLY,
AND THE REAGAN ADMINISTRATION REALLY HAD A CONCEPTION OF LINES
OF CASES THAT FAITHFULLY AND THAT UNFAITHFULLY
INTERPRETED THE CONSTITUTION. THE DOCUMENTS DISTINGUISHED
BETWEEN LINES OF CASES IN THE AREA OF FEDERALISM,
SEPARATION OF CHURCH AND STATE, AREAS OF PRIVACY, THE RIGHTS
OF THE CRIMINALLY ACCUSED, AND TALKED ABOUT THE WAYS
IN WHICH THE LAW RIGHTLY UNDERSTOOD MIGHT CHANGE. THEY DID SO UNDER THE GUISE
OF CORRECTING THE LAW, AND THEY WERE DEVISED,
BASICALLY, TO GUIDE JUDICIAL APPOINTMENTS AND POSSIBLY EVEN
GOVERNMENTAL LITIGATION, AND THE PICTURE SET FORTH
WAS OF CONSTITUTIONAL CHANGE BUT OF CONSTITUTIONAL
RESTORATION. THE DOCUMENTS INVOKED
THE ORIGINAL UNDERSTANDING AS A CORRECTIVE TO THE WAY
IN WHICH THE LAW WAS BEING INTERPRETED, AND WHEN
WE HEARD ABOUT THESE DOCUMENTS IN AND AROUND A BIT AFTER 2000,
WHAT WAS REMARKABLE WAS THAT THE LAW HAD CHANGED
FROM THE TIME AT WHICH THEY HAD BEEN WRITTEN
IN THE LATE 1980s, AND IT WAS FASCINATING TO SEE
THE EXTENT TO WHICH THE LAW HAD CHANGED IN THE DIRECTION
THAT THE AUTHORS OF THE DOCUMENTS
HAD CONTEMPLATED. THIS WAS A PROVOCATION. SOMEONE HAD SEEN LAW,
THOUGHT LAW WRONGLY DECIDED, AND ACTED IN SUCH A WAY
THAT OVER TIME, THE LAW HAD CHANGED–
TO A DEGREE, AT LEAST– IN CONFORMITY WITH THIS VISION,
AND THINKING ABOUT THIS AND THINKING ABOUT THE DIRECTION
THE LAW WAS HEADED, A NUMBER OF US BEGAN TO IMAGINE SOMETHING OF A CONSTITUTION
IN 2020. THE 2000 DOCUMENTS HAD CONCEIVED
OF THIS AS A MATTER OF CONFORMING LAW WITH A VISION
OF RIGHT REASON AND THE CONSTITUTIONALLY
TRULY UNDERSTOOD, AND THOSE OF US WHO THOUGHT
ABOUT THE CONSTITUTION IN 2020 IN THE ENSUING YEARS– THIS WAS DURING THE BUSH
ADMINISTRATION, ACTUALLY– UNDERSTOOD THE CONSTITUTION
DIFFERENTLY THAN THE AUTHORS
OF THE 2000 DOCUMENT HAD, AND THE BOOK THAT– ULTIMATELY, THERE WAS FIRST
A CONFERENCE AND THEN A BOOK, AND THERE ARE NOW SOME 27 BRIEF
ESSAYS COLLECTED IN THIS BOOK THAT EXPLORE HOW THE LAW
IS PRESENTLY UNDERSTOOD. IT MIGHT BE UNDERSTOOD
IN A RANGE OF AREAS, AND I GUESS A CORE THEME
OF THE BOOK CONCERNS IN A DEEP WAY A PICTURE OF HOW IT IS THE CONSTITUTION
DEVELOPS OVER TIME, AND TO DESCRIBE
THAT UNDERSTANDING WHICH IS CONCERNED
WITH THE DYNAMICS OF CONSTITUTIONAL CHANGE,
I’M GONNA TURN THIS OVER TO ROBERT POST, WHO’S GONNA BE
TALKING TO YOU ABOUT THIS KEY THEME
IN THE BOOK, THE NOTION OF DEMOCRATIC
CONSTITUTIONALISM. Greenhouse: REVA, CAN I BACK
YOU UP FOR A MINUTE, THOUGH? Siegel: SURE. Greenhouse: WHEN YOU SAY THAT
THE EARLIER PROJECT, THE CONSTITUTION 2000,
SET OUT TO CHANGE THE LAW AND IT WAS EFFECTIVE
AND THE LAW CHANGED, DO YOU MEAN
THE CONSTITUTION CHANGED? Siegel: I MEAN THAT
PREVAILING INTERPRETATIONS OF THE CONSTITUTION CHANGED,
AND THEY CHANGED BOTH IN CIVIL SOCIETY
AND AS UNDERSTOOD BY OFFICIALS CHARGED WITH ENFORCING
THE CONSTITUTION, BE THAT OFFICIALS
IN THE EXECUTIVE BRANCH OR OFFICIALS, JUDGES,
SITTING IN THE NATION’S COURTS, AND IT WOULD BE WRONG TO SAY
THEY CHANGE OF A PIECE AND SUDDENLY, BUT THEY CHANGED
INCREMENTALLY AND YET STEADILY IN DIRECTIONS THAT WERE
AT LEAST VISIBLE FROM THOSE WHO TALKED
ABOUT CHANGING LAW IN CONFORMITY WITH
THE ORIGINAL UNDERSTANDING. THOSE WHO BEGAN TO TALK ABOUT
THE NEED FOR INTERVENING IN THE LAW, AS PROPOUNDED
BY THE WARREN COURT, WERE CONCERNED WITH ISSUES
OF, SAY, THE LAW OF PRIVACY OR THE LAW OF, IN SOME CASES,
SPEECH, OBSCENITY, AND THEY HAD A PICTURE
OF THE ORIGINAL UNDERSTANDING WHICH THEY USED TO CRITIQUE
THE WAY JUDGES HAD INTERPRETED THE CONSTITUTION
TO THAT POINT. NOW, WHETHER THE LAW THAT
EMERGED FROM THIS PROCESS OF INTERVENTION ITSELF REFLECTED
AN HISTORICALLY ACCURATE INCARNATION OF
THE UNDERSTANDINGS OF THE DOCUMENT’S FRAMERS–
EITHER IN THE 18th CENTURY OR IN THE 19th CENTURY, IF WE’RE TALKING ABOUT
THE RECONSTRUCTION AMENDMENTS– IS ANOTHER MATTER ALTOGETHER. WHAT EMERGED
WAS PROBABLY SOMETHING THAT WAS QUITE 20th CENTURY
OR 21st CENTURY MODERN THAT WAS SHIFTED IN THE IMAGE OR IN THE UNDERSTANDING
OF OUR FOUNDERS, NOT THE SAME THING
AS THE WORK OF THE FOUNDERS. Greenhouse: FRAMED, AS YOU SAY,
AS A RESTORATION. THAT’S HOW IT WAS PRESENTED. Siegel: CERTAINLY
THE INTERVENTION WAS A CHIEF– ACTUALLY, INITIALLY,
IN THE FIRST YEARS OF THE REAGAN ADMINISTRATION,
THERE WAS A LOT OF TALK OF CONSTITUTIONAL AMENDMENTS,
OF USING ARTICLE V TO CHANGE THE CONSTITUTION,
AND PROGRESSIVELY OVER TIME, I BELIEVE, REPUBLICANS
AND CONSERVATIVES BEGAN TO ABANDON THE IDEA OF CHANGE THROUGH
CONSTITUTIONAL AMENDMENTS. Greenhouse:
BECAUSE IT’S VERY HARD TO DO. Siegel:
IT’S VERY, VERY HARD TO DO, BUT THERE WERE INITIALLY
MOVEMENTS FOR SCHOOL PRAYER AMENDMENTS. THERE WERE AMENDMENTS
FOR A HUMAN LIFE AMENDMENT. THERE WAS A FAIR AMOUNT OF TALK
OF CHANGE THROUGH ARTICLE V, AND OVER THE COURSE– I MEAN, I’VE DONE SOME READING
ON THIS TIME PERIOD. OVER THE COURSE OF THE 1980s,
THE IDEA OF CHANGE THROUGH CONSTITUTIONAL AMENDMENT
RECEDES, I THINK, OVERALL, AND WHAT INSTEAD EMERGES
IS A NOTION, POTENTIALLY, OF CHANGE THROUGH CORRECTIVE
JUDICIAL NOMINATIONS, AND ALSO, I SUPPOSE, IN MEASURE,
THROUGH LITIGATION, THAT IS TO SAY,
SUITS FILED CLAIMING BREACH OF THE CONSTITUTION,
THAT SORT OF THING, AND THIS PROCESS IS
ENERGETICALLY PURSUED AND ULTIMATELY WITH
SIGNIFICANT CONSEQUENCE IN AREAS OF FEDERALISM
AND AREAS OF, FOR EXAMPLE, PRIVACY LAW, IN THE WAYS
IN WHICH WE NOW UNDERSTAND THE MEANING OF
EQUAL PROTECTION IN ISSUES CONCERNING RACE DISCRIMINATION. THE LAW HAS CHANGED
SIGNIFICANTLY AND CONSEQUENTIALLY. THE RIGHTS OF CRIMINALLY
ACCUSED, ALL OF THESE AREAS, THERE’S BEEN DEMONSTRABLE CHANGE
IN THAT TIME PERIOD, NONE OF WHICH WAS ACCOMPLISHED
THROUGH ARTICLE V AMENDMENTS, BUT MUCH OF WHICH
WAS ACCOMPLISHED IN THE NAME OF
THE ORIGINAL UNDERSTANDING. IT’S A MATTER OF
A LONGER CONVERSATION WHETHER THE LAW THAT WAS
ENFORCED OVER THIS TIME PERIOD, THE WAYS IN WHICH
THE LAW CHANGED, COULD BEST BE ACCOUNTED FOR
IN THAT LOGIC OR WHETHER THE IDEA OF
THE FOUNDERS WAS MORE HORTATORY OR EXEMPLARY OF VALUES THAT
THOSE WHO INTERVENED IN THE LAW SOUGHT TO EFFECTUATE. THAT’S NOT A CHARGE
OF BAD FAITH, BUT RATHER TO SAY THAT THE LAW
THAT EMERGED REMAINED, I THINK, DISTINCTIVELY MODERN. NO ONE REPEALED THE SIZE
OF THE FEDERAL GOVERNMENT. NO ONE SOUGHT TO RETURN TO THE
FOUNDERS’ UNDERSTANDING OF RACE NOR EVEN TO THE FOUNDERS OF
THE RECONSTRUCTION AMENDMENTS’ UNDERSTANDING OF RACE,
NOR DID ANYONE, IN THE END, TRY TO REPEAL LAW
THAT GUARANTEED WOMEN EQUAL PROTECTION
UNDER THE LAWS. DURING THE FAILED NOMINATION
HEARINGS OF THEN-JUDGE BORK, THESE QUESTIONS WERE DEBATED,
AND THE QUESTION OF HOW FAR CHANGE IN THE NAME
OF THE ORIGINAL UNDERSTANDING WOULD BE PURSUED WAS CONSIDERED
AND DEBATED IN THE CONGRESS IN WAYS THAT INVOLVED, I THINK,
THE WHOLE NATION IN A CONVERSATION ABOUT
AN UNDERSTANDING OF WHAT IT MEANT TO KEEP FAITH
WITH THE CONSTITUTION AND WITH THE UNDERSTANDING
OF THE FOUNDING, AND WHAT EMERGED FROM THAT GREAT
NATIONAL CONVERSATION WAS A CONCEPTION OF FIDELITY
AND A CONCRETE PICTURE OF FIDELITY THAT MADE SENSE
OF OUR HISTORY THROUGH THE LENS OF OUR
LONG HISTORY AS A PEOPLE. THAT IS TO SAY, MADE SENSE
OF THE FOUNDING HISTORY AND OF RECONSTRUCTION ITSELF
THROUGH THE LENS OF OUR LONG HISTORY AND
EXPERIENCE AS A NATION, MADE INTERGENERATIONAL
SENSE OF IT RATHER THAN HISTORICAL
RESTORATIONIST SENSE OF IT. Greenhouse: RIGHT.
SO, THAT WAS ONE VISION, AND I’LL ASK ROBERT POST
TO TALK ABOUT THE VISION THAT’S ENCOMPASSED IN THE BOOK. Robert Post: SO, ONE IDEA IN
THIS BOOK THAT HAS BEEN TAKEN UP IN A NUMBER OF REVIEWS
OF THE BOOK– YOU MIGHT HAVE SEEN JEFFREY
TOOBIN’S IN THE “NEW YORKER” OR JEFF ROSEN’S IN
THE “NEW YORK TIMES MAGAZINE”– IS THIS IDEA OF DEMOCRATIC
CONSTITUTIONALISM, AND I THOUGHT I WOULD TAKE
A FEW MOMENTS JUST TO DESCRIBE TO YOU
WHAT THIS CONCEPT MIGHT MEAN. IF YOU THINK ABOUT IT,
DEMOCRATIC CONSTITUTIONALISM SEEMS TO BE
A CONTRADICTION IN TERMS BECAUSE THE IDEA
OF A CONSTITUTION IS THE THING WHICH FIXES POLITICS
AND CONTROLS POLITICS. THE CONSTITUTION SAYS
WHAT YOU CAN AND CAN’T DO IN THE POLITICAL SYSTEM, AND YET DEMOCRACY
IS THE IDEA OF POLITICS. IT’S THE IDEA OF SELF-OWNERSHIP.
I MAKE IT. SO, HOW CAN A CONSTITUTION WHICH LIMITS WHAT I CAN DO
DEMOCRATICALLY BE ITSELF DEMOCRATIC? AND THE IDEA OF
DEMOCRATIC CONSTITUTIONALISM IS THE IDEA OF HOW,
ON THE ONE HAND, OUR CONSTITUTION CAN HAVE
POLITICAL LEGITIMACY, POLITICAL LEGITIMACY BECAUSE
IT’S OUR CONSTITUTION, AND ON THE OTHER HAND,
HAVE THE PROPERTY OF A CONSTITUTION,
WHICH IS TO SAY, THE PROPERTY
OF LEGAL CONSTRAINT, OF BEING BINDING ON US
AS WE ACT IN POLITICS, HOW THOSE TWO CONTRADICTORY
IDEAS CAN LIVE TOGETHER. THAT’S THE CRUX OF THE PROBLEM
TO BE EXPLAINED. SO, IF YOU THINK ABOUT
CONSTITUTION DAY, WE’RE VERY PROUD OF
OUR CONSTITUTION TODAY, AND WE’RE VERY PROUD OF IT,
IN PART, BECAUSE IT’S A GOOD
CONSTITUTION BUT I THINK ALSO PROUD OF IT
BECAUSE IT’S OUR CONSTITUTION. WE MADE THIS CONSTITUTION, AND THAT’S WHY IT HAS
AUTHORITY FOR US, BECAUSE IT’S WE, THE PEOPLE. IT’S THE CONSTITUTION THAT
WE CONSTRUCTED SOME TIME AGO, AND, YOU KNOW, WE CAN LOOK AT
THE CONSTITUTION OF CANADA, AND WE COULD SAY, “THAT’S
A GREAT CONSTITUTION,” BUT WE’RE NOT EXACTLY PROUD
OF IT IN THE SAME SORT OF WAY. WE DON’T TAKE OWNERSHIP OF IT
IN THE SAME SORT OF WAY, AND IF SOMEONE WOULD
COME ALONG AND SAY, “YOU KNOW, WE’RE BOUND
BY THE CONSTITUTION OF CANADA,” WE’D SAY, “WAIT A MINUTE.
WAIT A MINUTE.” YOU KNOW, “THAT’S NOT OUR LAW.
WE DIDN’T MAKE THAT LAW.” SO, A LOT DEPENDS ON THIS NOTION
OF HOW WE MAKE THIS THING, THAT WE RECOGNIZE IT AS OURS. I TAKE IT THAT NO ONE
IN THIS ROOM VOTED FOR THE CONSTITUTION THAT YOU
SEE UNDER GLASS UPSTAIRS. NOT ONE OF YOU DID,
AND PROBABLY VERY FEW OF YOU HAD ANCESTORS WHO VOTED
FOR THAT CONSTITUTION, SO IN WHAT SENSE, EXACTLY,
IS IT YOURS? IN WHAT SENSE, EXACTLY,
IS IT MINE? MY GRANDPARENTS CAME
TO THIS COUNTRY AT THE BEGINNING
OF THE 20th CENTURY, YOU KNOW? THEY HAD NO PART IN MAKING
THAT CONSTITUTION OR EVEN THE RECONSTRUCTION
AMENDMENTS, AND YET THEY CAME
TO VIEW IT AS THEIRS. HOW IS THAT POSSIBLE? WELL, ONE MECHANISM BY WHICH
THE CONSTITUTION BECOMES OURS IS, WE AMEND IT. WE SAY, “IF WE DON’T LIKE IT,
WE’LL AMEND IT,” AND YOU’VE HEARD REVA TALK
ABOUT ARTICLE V. ARTICLE V SAYS
IN THE CONSTITUTION HOW WE GO ABOUT AMENDING
THE CONSTITUTION– VERY COMPLICATED,
VERY ARDUOUS PROCESS. WE HAVE VERY, VERY FEW
AMENDMENTS. BEFORE I MOVED TO NEW HAVEN,
I LIVED IN CALIFORNIA, AND THE CONSTITUTION THERE
LOOKS LIKE THE IRS CODE BECAUSE THEY AMEND IT
EVERY ELECTION, VERY LONG, LOTS OF AMENDMENTS,
AND NO ONE IN CALIFORNIA REALLY IDENTIFIES WITH
THE CALIFORNIA CONSTITUTION THE WAY WE IDENTIFY WITH OUR
RATHER STABLE CONSTITUTION. IT TURNS OUT, IF WE REALLY WANT
TO MAKE THE CONSTITUTION OURS, THE AMENDMENT PROCESS
IS TOO CLUMSY, TOO AWKWARD, TAKES TOO LONG,
AND IS TOO UNRESPONSIVE. THERE ARE TOO MANY THINGS
WE WANT TO BELIEVE ARE CONSTITUTIONAL
FOR THE AMENDMENT PROCESS TO ENCOMPASS THEM. NOW, THAT MAY SOUND
TOO PARADOXICAL, BUT I’LL GIVE YOU
A SIMPLE EXAMPLE. MOST OF YOU BELIEVE AND THE UNITED STATE
SUPREME COURT BELIEVES THAT THE EQUAL PROTECTION CLAUSE
OF THE 14th AMENDMENT PROHIBITS DISCRIMINATION
BASED UPON SEX, SO THE FEDERAL GOVERNMENT
CAN’T PAY A WOMAN LESS WAGES THAN A MAN FOR THE SAME JOB,
AND THAT YOU WOULD THINK OF AS A CONSTITUTIONAL RIGHT,
NOT TO BE DISCRIMINATED AGAINST UNDER THE EQUAL PROTECTION
CLAUSE, BUT PROBABLY, YOU DON’T KNOW
THAT THAT RIGHT DIDN’T EXIST UNTIL THE 1970s. BEFORE THAT TIME, DISCRIMINATION
BASED UPON SEX WAS ROUTINE
IN THE UNITED STATES, AND FOR THE FRAMERS
OF THE 14th AMENDMENT, IT WAS ROUTINE. IT WAS EXPECTED. THERE WERE DECISIONS
IN THE 19th CENTURY SAYING, “OF COURSE STATES COULD PREVENT
WOMEN FROM BECOMING LAWYERS,” FOR EXAMPLE, BECAUSE
THE APPROPRIATE PLACE FOR WOMEN WAS IN THE HOME. THAT’S WHERE WOMEN
WERE SUPPOSED TO BE, NOT AT THE BAR,
NOT PRACTICING LAW, NOT PRACTICING MEDICINE,
OR WHATEVER. NOW, HOW IS IT THAT
OUR CONSTITUTION COMES TO PROHIBIT
SEX DISCRIMINATION? HOW DID THAT HAPPEN? WELL, YOU WOULD SAY THE PROCESS
BY WHICH WE MAKE THE CONSTITUTION OURS–
WE AMENDED IT– AND YOU MIGHT REMEMBER
WE TRIED TO AMEND IT. REMEMBER THE ERA, WHICH WAS AN AMENDMENT TO
THE CONSTITUTION PROHIBITING– Greenhouse:
EQUAL RIGHTS AMENDMENT. ERA. Post: EQUAL RIGHT AMENDMENT
PROHIBITING DISCRIMINATION BASED ON SEX,
GOES OUT TO THE STATES, AND IT DOESN’T SUCCEED. IT FAILS. SO, WE TRIED TO AMEND
THE CONSTITUTION TO PROHIBIT DISCRIMINATION
BASED UPON SEX, AND WE FAILED TO DO IT,
AND NEVERTHELESS, WE CONSIDER IT PART
OF OUR CONSTITUTION THAT IT PROHIBITS DISCRIMINATION
BASED ON SEX. HOW DID THAT HAPPEN?
HOW, EXACTLY, DID THAT HAPPEN? THAT’S THE ISSUE
OF MAKING THE CONSTITUTION OURS. WE, AS A SOCIETY, BELIEVE
THAT MEN AND WOMEN ARE EQUAL, AND WE BELIEVE, THEREFORE,
THAT OUR CONSTITUTION, ANY CONSTITUTION
THAT WOULD REPRESENT US, WOULD PROHIBIT
DISCRIMINATION OF THIS KIND, YET WE COULDN’T DO IT
THROUGH ARTICLE V, SO HOW DID WE DO IT? WELL, WE DID IT THROUGH
PROCESSES OF INTERPRETATION OF THE CONSTITUTION BY JUSTICES
OF THE SUPREME COURT, BUT HOW DID THEY
COME TO DO THAT? AND THAT TURNS OUT TO BE
A VERY COMPLICATED PROCESS, AND THERE ARE MANY,
MANY PATHS OF INFLUENCE THAT AFFECT THE WAY THAT
JUSTICES OF THE SUPREME COURT INTERPRET THE CONSTITUTION. ONE OF THEM, OF COURSE,
IS THE APPOINTMENTS PROCESS. PRESIDENTS TEND
TO APPOINT JUSTICES WHO BELIEVE AS THEY DO IN
CERTAIN CONSTITUTIONAL RIGHTS AND NOT OTHER
CONSTITUTIONAL RIGHTS. FOR MANY YEARS,
YOU MIGHT REMEMBER, THE REAGAN ADMINISTRATION
BELIEVED THAT IT WOULD APPOINT JUSTICES WHO WOULD OPPOSE
THE RIGHT TO ABORTION IN ROE VS. WADE, AND THAT
WAS PART OF THE CAMPAIGN TO BECOME PRESIDENT
THAT CERTAIN KINDS OF JUSTICES WOULD BE APPOINTED WHO WOULD
INTERPRET THE CONSTITUTION A CERTAIN WAY. SO, THAT’S ONE PATHWAY. IT’S CALLED PARTISAN
ENTRENCHMENT, AND JACK BALKIN HAS WRITTEN
A GREAT DEAL ABOUT THAT, BUT THAT ISN’T WHAT HAPPENED
WITH RESPECT TO SEX. THERE WAS NO PRESIDENT WHO
CAMPAIGNED TO APPOINT JUSTICES TO REINTERPRET
THE EQUAL PROTECTION CLAUSE TO PROHIBIT DISCRIMINATION
BASED UPON SEX. SO, HOW DID THAT HAPPEN? WELL, IT TURNED OUT IT HAPPENED BECAUSE THERE WERE
SOCIAL MOVEMENTS. YOU MIGHT REMEMBER
SECOND-WAVE FEMINISM. FEMINISM EMERGES IN THE 1970s
AS A FORCE IN OUR SOCIETY WHERE PEOPLE DEBATED, YOU KNOW, WHAT IS THE ROLE OF WOMEN
IN THIS SOCIETY, AND WE, AS A SOCIETY–
THROUGH THIS PROCESS OF NORM CONTESTATION,
OF ARGUING WITH EACH OTHER ABOUT WHAT SHOULD BE
THE ROLE OF WOMEN– WE CAME TO THE BELIEF THAT WOMEN
SHOULD BE DISCRIMINATED AGAINST, AND BECAUSE WE CHANGED
OUR CULTURAL BELIEFS, THE PEOPLE ON THE COURT–
WHO ARE, AFTER ALL, JUST LIKE US,
MEMBERS OF THE AMERICAN PUBLIC– CAME TO CHANGE THEIR BELIEFS,
AND THEY CAME TO READ THE CONSTITUTION IN LIGHT
OF THESE CHANGED BELIEFS. WELL, THAT TELLS YOU
SOMETHING DEEP ABOUT HOW CONSTITUTIONAL
INTERPRETATION CHANGES. IT CHANGES AS THE BELIEFS
OF THE AMERICAN PUBLIC CHANGE, AND WE ALL PARTICIPATE
IN CHANGING THE BELIEFS OF THE AMERICAN PUBLIC,
EVERY ONE OF US. FIRST AMENDMENT GUARANTEES
YOUR RIGHT TO DO THAT, RIGHT? WE TAKE PART IN THIS CONTEXT. WE VOICE OUR OPINIONS,
AND AS WE, AS A CULTURE, CHANGE, SO DOES THE INTERPRETATION
OF THE CONSTITUTION. SO DOES THE MEANING
OF THAT DOCUMENT UNDER GLASS WHICH HASN’T CHANGED UPSTAIRS
CHANGED ITS SIGNIFICANCE, AND DEMOCRATIC CONSTITUTIONALISM
IS AN EFFORT TO DESCRIBE THE VERY COMPLEX RELATIONSHIP
BETWEEN CONTESTATION– DEBATES, ARGUMENTS–ABOUT
THE MEANING OF THE CONSTITUTION OUTSIDE THE COURTS–
IN THE CONGRESS, IN THE PRESIDENCY,
IN SOCIAL MOVEMENTS, IN TOWN HALLS, IN FAMILIES– AND THE WAY THAT
THE CONSTITUTION COMES TO ACQUIRE MEANING. THERE’S A VERY DYNAMIC,
VERY DIALECTICAL PROCESS BETWEEN THE WAY WE TALK
TO EACH OTHER AND THE WAY THE CONSTITUTION
IS INTERPRETED, AND THAT’S HOW WE KEEP IT
OUR CONSTITUTION. THAT’S WHY WE CAN STILL
RECOGNIZE IT AND TAKE PRIDE IN IT AS OURS AND NOT AS AN ALIEN,
18th-CENTURY DOCUMENT. Greenhouse: BUT IT’S OBVIOUSLY
A RATHER PROBLEMATIC CONCEPT BECAUSE IT’S TAKEN US– WELL, I’LL ASK JACK. SO, YOU GO DOWN A ROAD
THAT CAN TAKE YOU PRETTY FAR FROM THE CONSTITUTION OF 1789,
SO HOW DO YOU RECONCILE THE CONSTITUTION
THAT WAS WRITTEN AND THE CONSTITUTION
THAT EVOLVES THROUGH THIS PROCESS
OF DYNAMIC CONTEST? Jack Balkin: THE THING THAT
MOST PEOPLE DON’T REALIZE, I SUSPECT,
ABOUT THE CONSTITUTION WHEN IT WAS ORIGINALLY DRAFTED IS THAT IT WAS ACTUALLY DESIGNED
TO BE SELF-ENFORCING. PEOPLE THINK,
“WELL, SUPREME COURT “ENFORCES THE CONSTITUTION. SUPREME COURT PROTECTS
THE CONSTITUTION.” WHEN CHIEF JUSTICE ROBERTS
FAMOUSLY SAID HE THOUGHT THAT JUDGES
WERE LIKE UMPIRES– THEY MAKE SURE THE GAME
WAS PLAYED FAIRLY, AND A LOT OF PEOPLE
CRITICIZED HIM FOR THAT– BUT IN ANOTHER SENSE,
THE PROBLEM WITH THAT ANALOGY IS THAT THAT’S ACTUALLY NOT
HOW THE SYSTEM EVER WORKED OR WORKS TODAY. THE FRAMERS ASSUMED THAT PEOPLE
WOULD STRUGGLE IN POLITICS AND THAT THEY WOULD TRY
TO PUSH AND BEND AND CHANGE THE LAW TO SUIT
THEIR OWN NEEDS AND INTERESTS– SO IT IS TODAY
JUST AS IT WAS THEN– AND SO THEY ASSUMED THAT
WHAT YOU HAD TO DO IS, YOU HAD TO DESIGN A SYSTEM IN WHICH PEOPLE WOULD STRUGGLE
WITH EACH OTHER, AND THROUGH THEIR STRUGGLING
WITH EACH OTHER IN POLITICS, OVER TIME, THAT WOULD ENFORCE
THE CONSTITUTION. SO, IF YOU THINK ABOUT HOW
THE CONSTITUTION IS DESIGNED– THERE’S SEPARATION OF POWERS, WHICH INVITES DIFFERENT BRANCHES
TO STRUGGLE WITH EACH OTHER. YOU HAVE FEDERALISM, WHICH
INVITES THE FEDERAL GOVERNMENT AND THE STATES TO STRUGGLE
WITH EACH OTHER, RIGHT? YOU HAVE CHECKS AND BALANCES, WHICH KEEPS ANY PARTICULAR GROUP
FROM GETTING TOO POWERFUL, AND SO THAT WAS THEIR IDEA. THEIR IDEA WAS THAT IT WOULD BE
SELF-ENFORCING THROUGH THIS BACK AND FORTH,
THIS CONTESTATION, AND FINALLY, IF THINGS
REALLY GOT OUT OF HAND, THEY ASSUMED THAT
THE PEOPLE THEMSELVES WOULD, IN FACT,
DISCIPLINE GOVERNMENT THROUGH ELECTIONS
AND THROUGH PROTEST. SO, THE WHOLE IDEA
OF THE SYSTEM– WHICH INCLUDED THE JUDICIARY,
BY THE WAY; IT’S NOT THAT JUDICIARY
WAS THOUGHT AS THE BACKSTOP– THE WHOLE SYSTEM WAS THOUGHT
TO BE SELF-ENFORCING. NOW, THE THING THAT’S
INTERESTING ABOUT SUCH A SYSTEM IS THAT IT INHERENTLY WILL
ADD THINGS TO IT OVER TIME. IT WILL CHANGE OVER TIME
BECAUSE PEOPLE WILL PUSH AND PULL EACH OTHER. THEY’LL BUILD OUT INSTITUTIONS.
THEY’LL ADD THINGS. SO, FOR EXAMPLE,
THE FEDERAL GOVERNMENT AND THE STATE GOVERNMENTS
ARE SO MUCH LARGER AND DO SO MANY MORE THINGS
THAN WAS IMAGINED IN 1787. ALL THESE INSTITUTIONS
GOT BUILT UP OVER TIME, AND AS THEY BUILT UP OVER TIME,
THEY CHANGED THE WAYS IN WHICH PEOPLE ARGUED WITH EACH
OTHER ABOUT THE CONSTITUTION. THAT ALSO CHANGED THINGS
OVER TIME. SO, HERE’S SOME EXAMPLES,
SOME VERY SIMPLE EXAMPLES. THERE WERE NO POLITICAL PARTIES
ASSUMED IN 1787. FRAMERS THOUGHT POLITICAL
PARTIES WERE A BAD IDEA. IT TURNED OUT, POLITICAL PARTIES
BECAME ESSENTIAL TO AGGREGATING PEOPLE’S VIEWS
AND EXPRESSING POPULAR WILL. THEY DEVELOPED VERY QUICKLY. FRAMERS THOUGHT THERE WOULD
NEVER BE A STANDING ARMY. THEY HAD NO IDEA THAT
WE WOULD EVER BUILD UP OUR DEFENSE FORCES IN SUCH A WAY
THAT WE WOULD HAVE TROOPS STATIONED ALL OVER THE WORLD
AND BATTLESHIPS EVERYWHERE SO THAT WE COULD
DEFEND OURSELVES AND SO WE COULD EXERT OUR POWER
IN THE WORLD. THEY DIDN’T UNDERSTAND AMERICA
CAN BE A WORLD POWER AT ALL. THEY THOUGHT IT WOULD BE
AN ISOLATED POWER. THE ADMINISTRATIVE STATE, SO ALL THE GOVERNMENT BENEFITS
THAT YOU ENJOY, THOSE ARE MADE POSSIBLE
BY THE ADMINISTRATIVE STATE. THEY DIDN’T ASSUME
THERE WOULD BE ANYTHING LIKE AN ADMINISTRATIVE STATE. EACH OF THOSE THINGS
GOT BUILT UP OVER TIME, AND AS THEY BUILT UP OVER TIME,
IT CHANGED THE WAY IN WHICH THE SYSTEM
REINFORCED ITSELF. JUDICIAL REVIEW, WHICH WAS
CONTEMPLATED AT THE BEGINNING, BECOMES INCREASINGLY IMPORTANT,
ESPECIALLY AFTER THE CIVIL WAR, WHEN IT BECOMES CLEAR THAT
YOU HAVE TO PREVENT STATES FROM VIOLATING PEOPLE’S RIGHTS. IT WAS ASSUMED
THE FEDERAL GOVERNMENT WOULD VIOLATE PEOPLE’S RIGHTS. BY THE TIME OF THE CIVIL WAR,
IT’S CLEAR THE STATES ARE LIKELY TO BE VIOLATING
PEOPLE’S RIGHTS, AS WELL, SO THE FEDERAL JUDICIARY
BECOMES INCREASINGLY IMPORTANT, AND THEN WHAT HAPPENS IS,
THE FEDERAL JUDICIARY STARTS GETTING PUSHED
AND PULLED IN DIFFERENT WAYS, AND THAT’S PART OF THE STUFF
THAT ROBERT WAS COMMENTING ON. HE WAS TELLING YOU
IN A CERTAIN WAY THE KIND OF MECHANISMS THAT
WE’VE DEVELOPED OVER TIME TO KEEP JUDGES IN LINE. AS JUDGES BECOME MORE IMPORTANT,
YOU HAVE TO KEEP THEM IN LINE. HOW DO WE KEEP THEM IN LINE? THROUGH
THE APPOINTMENTS PROCESS, THROUGH ROTATION OF JUDGES
IN OFFICE, AND THROUGH CHANGING
THE GENERAL POLITICAL CULTURE IN SENSE OF WHAT’S FAIR
AND WHAT’S JUST AND WHAT WE UNDERSTAND
BY THE CONSTITUTION. YOU MAY THINK THAT THE COURTS
ARE COMPLETELY ISOLATED FROM PUBLIC OPINION
AND POLITICS, BUT IT ISN’T TRUE. IT’S NOT TRUE AT ALL. WHAT YOU DO IN POLITICS, WHAT YOU DO AND HOW YOU
EXPRESS YOUR VIEWS, HOW YOU MAKE YOUR VIEWS KNOWN,
HOW YOU ARGUE WITH PEOPLE ABOUT WHAT’S FAIR
AND WHAT’S JUST, EVENTUALLY THAT CHANGES HOW COURTS INTERPRET
THE CONSTITUTION. THAT’S THE KEY MECHANISM
OF SELF-ENFORCEMENT. IN A WORLD IMAGE, COURTS
ARE AS IMPORTANT AS THEY ARE IN OUR SITUATION, AND THE OTHER THING YOU HAVE
TO UNDERSTAND ABOUT THIS IS, PEOPLE WHO DRAFT
THE CONSTITUTION UNDERSTOOD IT WAS IMPERFECT. THEY UNDERSTOOD THAT IT WOULD
HAVE TO CHANGE OVER TIME. THEY UNDERSTOOD IT
AS AN EXPERIMENT THAT WOULD HAVE TO BE WORKED OUT
BY LATER GENERATIONS. THAT IDEA
IS REALLY CRUCIAL HERE. Greenhouse: SO, THE VERY TIGHTLY
CONTESTED SUPREME COURT NOMINATION BATTLES THAT WE’VE
LIVED THROUGH IN RECENT YEARS, THAT WAS PART OF THE ORIGINAL
DESIGN, DO YOU THINK? Balkin: NO. ABSOLUTELY.
THIS COMES OUT MUCH LATER. SUPREME COURT IS A PART
OF THE SYSTEM, BUT, AGAIN, ONCE YOU HAVE
THE 14th AMENDMENT, WHICH BASICALLY CREATES
A WHOLE NEW SET OF RIGHTS AGAINST STATES AND ONCE YOU HAVE
THE CIVIL RIGHTS REVOLUTION AND ONCE YOU START APPLYING THE
BILL OF RIGHTS TO THE STATES, RIGHT, SO THAT THE STATES
CAN NOW BE HELD LIABLE IF THEY VIOLATE
YOUR FREE SPEECH RIGHTS OR THE RIGHTS OF DEFENDANTS
OR OTHER KINDS OF RIGHTS, AT THAT POINT, COURTS BECOME
INCREASINGLY IMPORTANT, AND IT’S NO ACCIDENT THAT AFTER
THE CIVIL RIGHTS REVOLUTION OF THE 1960s, THE FIGHTS OVER
JUDICIAL NOMINATIONS BECOME REALLY IMPORTANT. WHY? BECAUSE NOW THE COURTS
ARE TASKED WITH A ROLE THAT THEY DIDN’T HAVE
AS MUCH PREVIOUSLY, AND SO YOU NEED TO HAVE
CHECKS ON THEM. THEY NEED TO HAVE WAYS
FOR THE PEOPLE TO ENFORCE THE MEANING OF THE CONSTITUTION
AGAINST THIS PARTICULAR ELEMENT OF THE CONSTITUTIONAL SYSTEM. Greenhouse: SO, I’LL JUST
TOSS OUT TO THE PANEL THIS NOTION OF DEMOCRATIC
CONSTITUTIONALISM. HOW IS IT DIFFERENT– I ASSUME IT IS DIFFERENT,
BUT HOW IS IT DIFFERENT FROM THIS SHIBBOLETH
OF THE LIVING CONSTITUTION, THE IDEA THAT THE WARREN COURT
HAD ELABORATED ON, THE CONSTITUTION JUST CHANGES
ALONG WITH POLICY PREFERENCES? Balkin: WELL, SO LET ME JUST SAY
THAT THERE’S ONE SENSE IN WHICH NOBODY REALLY DISAGREES WITH THE IDEA
OF A LIVING CONSTITUTION. EVEN ORIGINALISTS–
I’M AN ORIGINALIST MYSELF– THEY DON’T DISAGREE
WITH THE FACT THAT WE LIVE IN A VERY DIFFERENT
KIND OF SYSTEM THAN WE HAD IN 1787 OR 1868. THAT’S NOT THE ISSUE. THE ISSUE IS,
IS THERE ANY OBLIGATION ON THE PART OF JUDGES TO KEEP THE CONSTITUTION
IN LINE WITH THE TIMES, WHICH IS OFTEN THOUGHT
TO BE THE STATEMENT OF LIVING CONSTITUTIONALISM? NO. THERE ISN’T. THERE ISN’T,
BUT THERE DOESN’T HAVE TO BE BECAUSE THAT’S NOT THE WAY
A SELF-ENFORCING SYSTEM WORKS. THE CONSTITUTION CAN’T HELP
BUT, IN SOME SENSE, KEEP UP WITH THE TIMES
BECAUSE PEOPLE ARE CONSTANTLY
STRUGGLING OVER IT. PEOPLE ARE SAYING, “LOOK.
WOMEN DESERVE EQUAL RIGHTS,” AND THEY PERSUADE OTHER PEOPLE,
AND THEY PERSUADE POLITICIANS, AND POLITICIANS APPOINT JUDGES,
AND JUDGES LIVE IN THE SAME WORLD
THAT EVERYBODY ELSE DOES, AND SO WHAT HAPPENS IS,
THEY START TO SEE THE WORLD IN THAT WAY, TOO,
AND THAT’S HOW DOCTRINE CHANGES. IT’S NOT BECAUSE
SOMEBODY TOLD THE JUDGE, “HEY, YOU NEED TO KEEP
THE CONSTITUTION UP TO DATE WITH THE TIMES.” THAT’S JUST THE WRONG WAY
TO THINK ABOUT IT. Siegel: WELL, ONE WAY
OF UNDERSTANDING THE TERM
“LIVING CONSTITUTIONALISM” IS THAT IT WAS A TERM
THAT SOME MAY HAVE USED IN JUSTIFICATION OF RULINGS
OF COURTS IN THE 1960s THAT BECAME PART OF THE ARSENAL
OF CRITIQUE OF THE COURTS. I THINK IT WAS
JUSTICE REHNQUIST WHO SAID THAT A GOOD CONSTITUTION
WAS A DEAD ONE. Post: SCALIA. Siegel: WELL, I THINK THEY EACH
HAVE HAD THEIR SHOT AT IT. IN ANY EVENT, IT CERTAINLY
BECAME A TERM OF OPPROBRIUM, OF CRITICISM. IT WAS COUPLED WITH THE IDEA
OF ACTIVIST COURTS, OR ANOTHER SORT OF TERM
OF CRITIQUE WAS “LEGISLATING
FROM THE BENCH,” THE IDEA THAT JUDGES
WERE DECIDING CASES IN A WAY THAT EXCEEDED
THEIR APPROPRIATE ROLE AND STRAYED INTO A DOMAIN
THAT SHOULD PROPERLY OTHERWISE HAVE BEEN LEFT
FOR DEMOCRATIC DELIBERATION, WAS PROPERLY THE DOMAIN
OF POLITICS, BUT JUDGES CEASED APPLYING LAW
AND, ON THIS CRITIQUE, BEGAN ENGAGING
IN POLITICAL REASONING. THAT WAS PART OF THE CRITIQUE OF
THOSE WHO HELPED ELECT JUDGES– EXCUSE ME–PRESIDENTS
WHO APPOINTED JUDGES WHO HELPED CHANGE THE LAW
AS THE JUDGES– THE PRESIDENT–EXCUSE ME–DID THROUGH THE JUSTICE DEPARTMENT’S
CONSTITUTION IN 2000 PROJECT, AND IN THINKING ABOUT
ALL OF THAT, ONE CAN SAY THAT IT WAS A TERM OF OBJECTION
AIMED AT A RANGE OF DECISIONS WHICH LOOKED LAWLESS TO THOSE
WHO OBJECTED TO THEM BECAUSE THEY DISCONFORMED
WITH THEIR UNDERSTANDING OF WHAT OUR CONSTITUTION IS,
AND YET ONE COULD LOOK AT, FOR EXAMPLE,
CURRENT INTERPRETATIONS OF THE EQUAL PROTECTION CLAUSE TO PROHIBIT ANY FORM OF
RACE-CONSCIOUS GOVERNMENT ACTION AND, THEREFORE, TO LIMIT
THE GOVERNMENT ACTION THAT IS CONCERNED WITH
VINDICATING DIVERSITY OR ACHIEVING THE INTEGRATION
OF INSTITUTIONS, THOSE RULINGS, AS NEW FORMS OF
LIVING CONSTITUTIONALISM. IT’S HARD TO FIND THE WARRANT
IN ORIGINAL UNDERSTANDING TO ACCOUNT FOR THE CURRENT
INTERPRETATION OF THE EQUAL PROTECTION CLAUSE
BY CONSERVATIVE JUSTICES WHO CALL THEMSELVES
ORIGINALISTS. THERE’S ALSO INTERESTING WAYS
IN WHICH EVEN THE GUN DECISION, THE HELLER DECISION OF 2008, THIS IS THE FIRST TIME
THAT THE SUPREME COURT HAS STRUCK DOWN
A GUN CONTROL LAW, REASONING THAT IT RESTRICTED AN
INDIVIDUAL RIGHT TO BEAR ARMS. WE’RE NOT GONNA GO INTO
THE PROVIDENCE OF THAT DECISION, BUT I’LL JUST OBSERVE
AS AN HISTORICAL FACT THAT THIS WAS A NEW PLACE
FOR THE SUPREME COURT TO BE, AND WE CAN ASK OURSELVES, IN
WHAT RESPECT IS THE HELLER CASE AN EXAMPLE OF LIVING
CONSTITUTIONALISM? IN WHAT WAYS ARE THE JUDGMENTS
OF THE COURT RESTRICTING AFFIRMATIVE ACTION EXAMPLES OF LIVING
CONSTITUTIONALISM? IN THESE CASES, THEY’RE
VINDICATING VALUES THAT ARE GENERALLY ASSOCIATED
WITH CONSERVATIVE MEMBERS OF THE JUDICIARY,
AND CERTAINLY HELD TO BE CORE
CONSTITUTIONAL VALUES, I MEAN, IN ABSOLUTE
AND UTTER SORT OF SINCERITY AND EARNESTNESS UNDERSTOOD TO BE THE MEANING
OF THE SECOND AMENDMENT, THE MEANING
OF THE 14th AMENDMENT’S EQUAL PROTECTION CLAUSE
WITHOUT AN UTTER DROP OF DOUBT, AND YET ONE COULD ALSO SEE THEM
AS INSTANCES OF CHANGE. SO, THERE’S A STRIKING QUESTION
OF PERSPECTIVE HERE. IS THE PROBLEM THE IDEA
OF CONSTITUTIONAL CHANGE, OR IS THE PROBLEM THE AREAS IN
WHICH THE CONSTITUTION CHANGES? AND IT COULD TURN OUT
THAT MANY AMERICANS, IF YOU BEGAN TO INTERVIEW THEM,
WOULD BELIEVE THAT SOME OF THESE CHANGES
ARE SENSIBLE AND CONSISTENT
WITH CONSTITUTIONAL PRINCIPLE AND OTHERS ARE OUTRAGEOUS AND IN DEROGATION OF
CONSTITUTIONAL PRINCIPLE. THE ONLY PROBLEM IS THAT
IF YOU PUT US ALL IN A ROOM WITH ONE ANOTHER,
WE WOULDN’T REALLY ALL AGREE ON WHICH CASES WERE WHICH,
AND SO ONE WAY OF THINKING ABOUT WHAT’S GOING ON HERE
IS THAT WHAT WE’RE SEEING HAPPEN IS AMERICANS ARGUING
ABOUT WHAT THE TRUE MEANING OF THE PRINCIPLES
OF THE DOCUMENT MIGHT BE, ARGUING WITH ONE ANOTHER,
ELECTING OFFICIALS WHO ULTIMATELY APPOINT JUSTICES
WHO HAVE TO DELIBERATE WITH ONE ANOTHER IN DEEP AND
UTTER EARNESTNESS AND FIDELITY ABOUT THE MEANING
OF THE DOCUMENT, AND THEY GIVE IT SENSE OVER TIME
THAT SHIFTS IN A WAY THAT SOME OF US WILL SEE
TO BE ABSOLUTELY THE OUTWORKING OF KEY PRINCIPLES AND OTHERS TO BE
DIVERGING FROM THEM, AND THEN WE’RE STILL IN A SPACE
OF ARGUMENT WITH ONE ANOTHER, AND THE CONSTITUTION,
WE CAN UNDERSTAND AS SITTING IN THE MIDST
OF ALL OF THAT BEING WHAT JOINS US IN ARGUMENT
WITH ONE ANOTHER, THE DOCUMENT TO WHICH WE APPEAL
IN DEEP CONVICTION, THAT IT’S WHAT IT IS WE SHARE
IN COMMON AS A PEOPLE, EVEN AS WE KNOW WE DISAGREE WITH
ONE ANOTHER ABOUT ITS MEANING. Post: YOU KNOW, THERE IS A SENSE
IN WHICH THE IDEA OF LIVING CONSTITUTIONALISM
IS COMPLETELY UNCONTROVERSIAL, SO YOU TAKE ANY HISTORIAN
OF AMERICA AND YOU READ A HISTORY
OF UNITED STATES POLITICAL DEVELOPMENTS
OR CONSTITUTIONAL DEVELOPMENTS, THERE’S CHANGING. NO HISTORIAN, NO POLITICAL
SCIENTIST FOR A MINUTE WOULD SAY THAT THE MEANING OF
THE CONSTITUTION HASN’T EVOLVED SINCE 1789, JUST WOULDN’T EVEN BEGIN
TO THINK OF THAT AS A QUESTION. SO, IF WE LOOK AT THIS
FROM THE OUTSIDE, OF COURSE THE MEANING
OF THE CONSTITUTION EVOLVES AND CHANGES IN TIME, AND NO ONE WOULD THINK
ANYTHING ELSE. NOW, WHEN YOU LOOK AT IT
FROM THE INSIDE, WHEN YOU LOOK AT IS AS A LAWYER
AND YOU SAY, “WELL, I’M SUPPOSED TO BE
BOUND BY IT. “HOW CAN THIS CHANGE
IF I’M BOUND BY IT AND THERE’S THE TEXT
AND THE TEXT HASN’T CHANGED?” THAT POSES A LITTLE BIT MORE
OF A PROBLEM, SO I DO A LOT OF WORK,
FOR EXAMPLE, ON THE FIRST AMENDMENT,
AND WHEN MOVIES FIRST APPEARED, IT WENT TO THE SUPREME COURT,
AND SUPREME COURT SAID, “WELL, MOVIES AREN’T WITHIN
THE FIRST AMENDMENT “BECAUSE MOVIES
ARE LIKE CIRCUSES, “AND CIRCUSES AREN’T PROTECTED
BY THE FIRST AMENDMENT. “THAT’S NOT A MEDIUM
OF COMMUNICATION. THAT ISN’T HOW PEOPLE
DEBATE WITH EACH OTHER,” AND NOW, OF COURSE, WE THINK
ENTIRELY DIFFERENTLY. NOW, IS THAT BECAUSE
THE TEXT HAS CHANGED OR CIRCUMSTANCES HAVE CHANGED
OR THE MEANING OF MOVIES? WE LIVE IN A SOCIAL WORLD
IN WHICH THE VALUE WHICH THE FIRST AMENDMENT
IS THERE TO PROTECT NOW ENCOMPASSES MOVIES. YOU CAN PARSE THAT MANY WAYS,
BUT THE POINT IS, WE GIVE MEANINGS
TO THE FIRST AMENDMENT NOW WHICH WOULD’VE BEEN
INCONCEIVABLE TO THE FRAMERS
OF THE CONSTITUTION. A FAMOUS EXAMPLE OF THAT
IS THAT THE CONSTITUTION GIVES AUTHORITY TO CONGRESS
TO MAKE RULES FOR THE ARMY AND THE NAVY, BUT IT DOESN’T MENTION
THE AIR FORCE, AND I GUARANTEE YOU THAT
THE FRAMERS DIDN’T CONTEMPLATE, DIDN’T HAVE IN THEIR MIND
OR INTENTIONS THE AIR FORCE, AND YET DO THEY HAVE POWER
TO MAKE RULES FOR THE AIR FORCE? OF COURSE THEY DO. SO, HOW YOU BEGIN TO THINK ABOUT
THE DEVELOPMENT OF THESE THINGS AS CIRCUMSTANCES CHANGE IS,
I THINK, WHAT THIS METAPHOR OF THE LIVING CONSTITUTIONALISM,
IN ESSENCE, CAPTURES. NOW, THAT MEANS TO SAY
THAT YOU HAVE TO ADJUST TO CHANGING CIRCUMSTANCES
IS TO SAY THERE’S GONNA BE CONTROVERSY
BECAUSE SOME PEOPLE WILL SAY YOU SHOULD ADJUST ONE WAY,
AND OTHER PEOPLE SAY YOU SHOULD ADJUST
A DIFFERENT WAY, AND SO THE MINUTE
YOU HAVE THIS PROBLEM OF CHANGE AND ADJUSTMENT,
YOU’RE GONNA HAVE ALSO THE PROBLEM OF CONTROVERSY,
AND THEN YOU HAVE THE PARADOX
THAT REVA IS POINTING TO, NAMELY, WE’RE BOUND
BY OUR CONSTITUTION. WE’RE ARGUING ABOUT
THE MEANING OF OUR CONSTITUTION, AND YET WE’RE MAKING
THAT MEANING, AND WE’RE DISAGREEING
ABOUT THAT MEANING, AND THE CONSTITUTION EMERGES
FROM THAT DISAGREEMENT. AS THOSE PARTS OF OUR VALUES
THAT WE AGREE SOMEHOW THROUGH THE COMPLEX PROCESSES
OF JUDICIAL INTERPRETATION AND BACKLASH AND
REINTERPRETATION, THE VALUES THAT WE AGREE
TO LIVE BY, THAT BECOMES
THE CONSTITUTION ITSELF, AND THAT CHANGES IN TIME. Greenhouse: SO, JUST TO TAKE
ONE RECENT EXAMPLE, I’D LIKE TO GET YOUR RESPONSE
TO THE PROCESS THAT WAS REVEALED BY
THE TRAJECTORY FROM THE SECOND HALF
OF THE 1980s, WHEN THE SUPREME COURT
HAD THE CHANCE TO ENUNCIATE
A CONSTITUTIONAL FRAMEWORK FOR THE CLAIM TO GAY RIGHTS
AND DISMISSED IT OUT OF HAND– WELL, 5-4, JUSTICE BYRON WHITE
SAYING FOR THE MAJORITY THE CLAIM WAS, AT BEST,
FACETIOUS– AND NOT 20 YEARS LATER, IN 2003
IN LAWRENCE AGAINST TEXAS, THE COURT VOTES 6-3 THAT THERE
IS A CONSTITUTIONAL BASIS FOR THE CLAIM TO GAY RIGHTS. SO, DISCUSS THAT
WITHIN THE FRAMEWORK OF DEMOCRATIC CONSTITUTIONALISM
BECAUSE IT WAS A VERY DRAMATIC AND, I THINK, UNUSUALLY SHORT
AND EXPLICIT, NOT KIND OF THE BUBBLING UP AS THE DE FACTO
EQUAL RIGHTS AMENDMENT, BUT THE COURT SAID
ONE THING ONE DAY AND NOT 20 YEARS LATER
SAID THE OPPOSITE. Balkin: WELL, I MEAN, LAWRENCE
IS ACTUALLY A VERY GOOD CASE. IT’S INTERESTING
TO COMPARE LAWRENCE WITH BROWN VS. BOARD
OF EDUCATION IN ’54. HERE’S A POINT. IN 1986 WHEN THE COURT
TAKES LAWRENCE, HALF OF THE STATES HAVE ALREADY
DECRIMINALIZED SAME-SEX SODOMY, HALF OF THEM,
SO THERE’S ALREADY A CHANGING PUBLIC VIEW
ABOUT HOMOSEXUALITY, BUT IT’S ALSO, AS YOU REMEMBER, RIGHT AT THE TIME
OF THE AIDS CRISIS, AND THAT, I’M SURE,
HAD AN EFFECT ON THE WAY THE COURT
DEALT WITH IT, AND THE COURT WAS
A VERY CLOSE CASE, 5-4. ORIGINALLY, JUSTICE POWELL
GOES THE OTHER WAY, AND THEN HE DECIDED
HE’D SWING BOTH WAYS IN THE COURT,
AND HE FINALLY COMES DOWN ON THE SIDE OF ALLOWING
CRIMINALIZATION. LATER, HE SAID HE REGRETTED IT.
IT WAS VERY CLOSE CASE THEN. WHAT HAPPENS BETWEEN 1986
AND 2003? WELL, SEVERAL THINGS. FIRST OF ALL, ALMOST ALL STATES
DECRIMINALIZE SAME-SEX SODOMY. THERE ARE ONLY 13 LEFT,
AND IT WAS NEVER ENFORCED. “WILL & GRACE” BECOMES A
NUMBER-ONE TV SHOW, WHICH IS BOTH A CAUSE AND A REFLECTION
OF HOW AMERICANS’ ATTITUDES ABOUT HOMOSEXUALITY
HAVE CHANGED. AND HOMOSEXUALITY BECOMES
MORE OPEN AND PUBLIC AND MORE ACCEPTED IN LIFE. AND IN THAT SENSE, IT’S JUST–
IT MAKES NO MORE SENSE ANYMORE FOR THE SUPREME COURT TO SAY
THAT YOU CAN THROW HOMOSEXUALS IN JAIL REALLY ESSENTIALLY
FOR BEING HOMOSEXUALS. AND SO IN A SENSE, WHAT
LAWRENCE IS IS JUST A CONFIRMATION OF WHERE THE
COUNTRY HAD ALREADY HEADED. ONE OF THE THINGS THAT’S SO
INTERESTING ABOUT LAWRENCE IS THAT WHEN THE CASE WAS
DECIDED, THERE WAS ALMOST NO OUTCRY ABOUT THE
DECISION PER SE. Greenhouse: THERE WAS A
BIG OUTCRY FROM, SAY, JUSTICE SCALIA. Balkin: JUSTICE SCALIA, BUT
HE WAS NOT MAKING A CLAIM ABOUT THAT. WHAT’S INTERESTING IS THE
MORAL MAJORITY, AND THEY SAID, “WELL, YOU KNOW, WE DON’T
REALLY HAVE–YOU KNOW, THIS IS “NOT SO IMPORTANT TO US, BUT WE
REALLY HATE THE FACT THAT “THE COURT IS DOING IT, AND WE
REALLY ARE WORRIED ABOUT GAY MARRIAGE,” YOU SEE? THAT’S WHAT JUSTICE SCALIA WAS
WRITING ABOUT IN HIS DISSENT. IT WAS AS IF BY THE TIME
THE CASE HAD BEEN DECIDED, EVERYONE HAD SAID, “OK,
THAT’S IT. LET’S MOVE ON. NOW LET’S FIGHT
ABOUT GAY MARRIAGE.” AND THAT TELLS YOU THAT THE
SUPREME COURT ACTUALLY CAME RATHER LATE TO THE PARTY–THAT
IS, THAT IT FINALLY CAME TO THE PLACE WHERE THE
COUNTRY ALREADY HAD BEEN FOR SOME TIME. NOW, IF YOU COMPARE THAT
WITH BROWN, IT’S A VERY DIFFERENT STORY. IN BROWN, WHAT HAPPENS IS,
AT THE TIME BROWN IS DECIDED, ABOUT HALF THE STATES HAVE
OUTLAWED DE JURE SEGREGATION, AND OUTSIDE THE DEEP SOUTH,
ALMOST ALL OF THEM HAVE–WHERE IT STILL EXISTS, IN A SMALL
NUMBER OF STATES, IT’S LOCAL OPTION. TOPEKA IS A LOCAL
OPTION CASE. AND THE WHITE HOUSE IS
OPPOSED TO PLESSY AND WANTS TO OVERTURN JIM CROW. THE STATE DEPARTMENT THINKS
WE’RE GETTING KILLED BY THE RUSSIANS. BAD PROPAGANDA. AND NATIONAL ATTITUDES AND
WORLD WAR II AND THE FIGHT AGAINST FASCISM, WHICH IS
A FORM OF INSTITUTIONALIZED RACISM, CHANGES AMERICANS’
MINDS ABOUT ALL THIS. ALL THESE G.I.s COME HOME FROM
EUROPE–BLACK G.I.s COME HOME FROM EUROPE. THEY’D FOUGHT FOR OUR COUNTRY. AND SO BY THE TIME THAT BROWN
WAS DECIDED, THERE’S BEEN A SEA CHANGE IN ATTITUDES,
AND HARRY TRUMAN ASKED THE COURT TO OVERTURN PLESSY IN
1950, 4 YEARS BEFORE BROWN, AND THE COURT SAYS NO. THEY WAIT 4 MORE
YEARS BEFORE DOING IT. BUT WHAT’S INTERESTING ABOUT
BROWN IS, BROWN THE COURT ACTS A LITTLE SOONER THAN IT DID IN
LAWRENCE, AND THERE IS MASSIVE OPPOSITION IN ONE REGION
OF THE COUNTRY, THE SOUTH. AND THEN IF YOU THINK ABOUT
THE SEX EQUALITY CASES, BY THE TIME THE SUPREME COURT
DECIDES THE SEX EQUALITY CASES IN THE SEVENTIES, WHAT HAPPENS
IS, EVEN THE OPPONENTS OF E.R.A.–REVA HAS WRITTEN
ABOUT THIS, SHE CAN TALK ABOUT IT–BASICALLY SORT OF
HEDGE THEIR BETS AND SAY, “OK, WE BELIEVE IN EQUAL
PAY FOR EQUAL WORK. WE BELIEVE IN EQUALITY BUT NOT
ALL THIS CRAZY STUFF,” RIGHT? AND SO IN A SENSE, THEY
ALREADY CEDE GROUND BY THE TIME THE COURT DECIDES IT. THESE WERE ALL ACTUALLY 3
EXAMPLES OF THE COURT IN SOME SENSE FOLLOWING RATHER THAN
LEADING AND THAT THE REAL BATTLE IS BEING FOUGHT OUT IN
AMERICAN POLITICS OVER WHAT EQUALITY MEANS. Siegel: I THINK THERE’S
ACTUALLY IN THE “CONSTITUTION IN 2020” BOOK A VARIETY OF
VOICES SPEAKING ABOUT THE WAYS THAT COURTS ENFORCE
THE CONSTITUTION. THERE ARE SOME VOICES, SOME OF
THE AUTHORS, CONTRIBUTORS TO THE BOOK VIEW THE COURTS
IN THE WAY THAT JACK IS DESCRIBING, AS ESSENTIALLY
MAJORITARIAN INSTITUTIONS. THEY REFLECT PUBLIC OPINION
OR EVEN, ON THIS ACCOUNT, LAG BEHIND PUBLIC OPINION. Greenhouse: SO THEIR JOB
IS TO SORT OF RATIFY. Balkin: TO RATIFY CHANGES
THAT HAVE ALREADY HAPPENED IN SOCIAL MORALITY. THERE ARE OTHER VOICES IN THE
BOOK–AND I SHOULD POINT OUT THAT THAT PICTURE OF COURTS
AS MAJORITARIAN INSTITUTIONS MERELY MOPPING UP AND
RECORDING CHANGES THAT ARE ALREADY CONSENSUAL AND AGREED
UPON BY ALL AMERICANS–THAT’S NOT THE IMAGE OF THE COURT
THAT, FOR EXAMPLE, AMERICANS ARE CONCERNED ABOUT WHEN
THEY TALK ABOUT THE COUNTERMAJORITARIAN DIFFICULTY. THERE THEY’RE WORRIED ABOUT
THE IDEA OF UNELECTED JUDGES WHO LACK DEMOCRATIC WARRANT
INTERVENING IN MATTERS AND LAWS THAT ARE THE
OUTGROWTH OF DEMOCRATIC POLITICS AND ESSENTIALLY
PREVENTING AMERICANS FROM DOING WHAT OTHERWISE THEY HAVE
CONCLUDED TO DO AS A MATTER OF COLLECTIVE DELIBERATION. THERE ARE OTHER VOICES IN THE
“2020” BOOK THAT ACTUALLY SEE COURTS AS POTENTIALLY
MORE ACTIVE PLAYERS IN THE ELABORATION OF
CONSTITUTIONAL MEANING, AND IT’S AN INTERESTING CASE
TO THINK ABOUT THE STORIES THAT JACK WAS JUST
SETTING OUT THERE. THERE IS A DEEP AND IMPORTANT
SENSE IN WHICH THE COURT IN BROWN AND THE COURT IN
LAWRENCE, THE COURT THAT DEALT WITH ISSUES OF RACE AND THE
EQUAL PROTECTION CLAUSE AND THE COURT THAT RECOGNIZED
THE FREEDOM OF SAME-SEX COUPLES TO BE FREE FROM
CRIMINAL PROSECUTION–THAT THOSE COURTS WERE
REFLECTING COMMON VIEWS. AND YET AS THEY STRUCK DOWN
STATE LAWS TO EXPRESS THIS UNDERSTANDING AND AS THEY
JUSTIFIED THOSE DECISIONS, THEY WERE GIVING AN ACCOUNT OF
CONSTITUTIONAL GUARANTEES THAT HAVE THE ABILITY TO CALL INTO
QUESTION OTHER PRACTICES OTHER THAN THE ONES THAT
THEY STRUCK DOWN. WE NOW THINK OF THE COURT’S
RULING IN BROWN AS CALLING INTO QUESTION NOT ONLY SCHOOL
SYSTEMS THAT WERE EXPLICITLY SEGREGATED BY RACE BY LAW BUT
ALSO OTHER SOCIAL PRACTICES THAT MIGHT BE UNDERSTOOD
TO DISCRIMINATE ON THE BASIS OF RACE,
ALL THE WAY OUT TO, FOR EXAMPLE,
AFFIRMATIVE ACTION CASES. SOME VIEW THE MEANING OF
THE CLAUSE IN THAT WAY; OTHERS DO NOT. AND SIMILARLY, THE SCOPE
OF THE COURT’S RULING IN LAWRENCE, STRIKING DOWN
CRIMINAL SODOMY STATUTES, IS UNCLEAR, WAS CLAIMED
UPON BY AMERICANS WHO WERE CONTESTING THE RESTRICTION OF
THE INSTITUTION OF MARRIAGE TO CROSS-SEX COUPLES. AND THIS PICTURE OF COURTS
INTERVENING IS VIEWED BY SOME AUTHORS IN THE BOOK AS
POTENTIALLY A GOOD, EVEN IF COUNTERMAJORITARIAN, BECAUSE
ULTIMATELY, IN THE END, STILL PART OF DEMOCRATIC
CONSTITUTIONALISM. HOW AND WHY? IT’S NOT GOING TO BE POSSIBLE
FOR ANY COURT ULTIMATELY TO DISTURB THE MARRIAGE
RELATIONSHIP OR TO DISTURB THE WAYS IN WHICH AMERICANS RELATE
ALONG LINES OF RACE IF THERE ARE NOT IN CIVIL SOCIETY AND
IN GOVERNMENT OTHERS PREPARED TO TAKE UP AND DEFEND
THOSE JUDGMENTS. AND SO ONE CAN SEE WHAT COURTS
ARE DOING IN THESE INSTANCES AS IN PART MAKING VISIBLE
A PARTICULAR AND POSSIBLY CONTESTABLE ACCOUNT OF
OUR COMMITMENTS AND ASKING AMERICANS, WHAT, TRULY,
DO CONSTITUTIONAL GUARANTEES MEAN IN MATTERS ABOUT WHICH
AMERICANS ARE STILL IN UNEASY IF NOT SOMETIMES QUITE EXCITED
DISPUTE WITH ONE ANOTHER? AND IT COULD WELL BE THAT
COURTS ENGAGED IN THAT PROCESS OF INTERVENTION AND
REFLECTION, WHILE IT’S NOT WHOLLY COUNTERMAJORITARIAN–
THE ISSUES GOT PUT ON THEIR PLATE IN A WAY THAT EMERGED
OUT OF PUBLIC CONVERSATIONS ABOUT NORMS AND WAS GROUNDED
IN MANY FORMS OF POPULAR CULTURE AND THE MEDIA–
NONETHELESS ARE THEMSELVES VOICES IN THAT CONVERSATION
AND QUITE AUDIBLE VOICES IN THAT CONVERSATION
BECAUSE THEY’RE HIGH VISIBILITY ACTORS. WE FIGHT OVER WHO
OUR JUDGES ARE. WE GIVE GREAT HONOR TO
OUR COURTS, DECIDING OUR CONSTITUTIONAL MATTERS. AND WE HAVE PRACTICES OF GREAT
DEFERENCE TO THEIR RULINGS. SO THEY’RE BIG, HIGH-STAKES
DECISIONS, AND THEY CAN ACTUALLY, IN TURN, INFLUENCE
NORMS IF THERE ARE AMERICANS WHO ARE PREPARED TO
STAND UP AND SAY, “YES, AS A MATTER OF
PRINCIPLE, THAT’S A RULING IN DEEP FIDELITY TO
OUR AGREEMENTS.” THE SECOND AMENDMENT DECISION
COULD WELL BE UNDERSTOOD AS SUCH A DECISION. Post: YOU KNOW, IN THE
TRADITIONAL IDEA OF THE JUDGE COMING OUT OF THE WARREN
COURT AND THE BROWN ERA IS EXEMPLIFIED IN A DECISION
CALLED COOPER VS. AARON, WHICH SOME OF YOU MIGHT
REMEMBER, IN WHICH THEY ORDERED THE DESEGREGATION
OF THE LITTLE ROCK SCHOOLS, AND FAUBUS STOOD UP AND SAID,
“NO. OVER MY DEAD BODY,” AND EISENHOWER HAS TO
CALL OUT THE NATIONAL GUARD, AND THE COURT IS SEEN
AS STANDING STEADFAST FOR CONSTITUTIONAL RIGHTS
AGAINST A WAYWARD DEMOCRACY. SO THIS IDEA OF THE JUDGE AS
HERO, OF THE WARREN COURT AS STANDING UP FOR THE RIGHTS OF
THOSE WHO HAVE NO POLITICAL BACKING–AND THINK HERE OF
THE CRIMINAL DEFENSE RIGHTS, MIRANDA WARNINGS, THE RIGHT TO
A LAWYER IF YOU ARE ARRESTED AND SO FORTH AND SO ON–THESE
CREATED AN IMAGE OF THE JUDGE AS A KIND OF HERO STANDING
UP AGAINST THE POLITICAL TIDE AND PROTECTING THE
RIGHTS OF THOSE WHO WERE OTHERWISE DEFENSELESS. AND THAT WAS A VERY
TRADITIONAL SORT OF LIBERAL IDEA. IT WAS CRITIQUED AS
AN IMPERIAL JUDICIARY, AND THERE’S BEEN A RATHER
LARGE REACTION TO IT, SO MUCH SO THAT MANY BELIEVE, AS JACK
HAS JUST STATED, THAT IN FACT IF YOU LOOK CLOSELY AT THESE
OPINIONS, REALLY THE JUDGES ARE JUST RATIFYING WHAT
PEOPLE BELIEVE ANYWAY. ANOTHER WAY TO LOOK AT THIS
QUESTION WOULD BE TO SAY THAT THE COURTS ARE THEMSELVES A
VOICE, AS REVA HAS SUGGESTED, ONE VOICE WITHIN THE POLITICAL
SYMPHONY THAT WE SING OUT OUR CONSTITUTIONAL VALUES IN,
AND AS ONE PARTICIPANT, IT CAN BE MORE OR LESS
AHEAD OF THE CROWD. IT CAN HAVE MORE
OR LESS INFLUENCE. IT ALL DEPENDS ON
THE CIRCUMSTANCES. Siegel: I THINK–I
THINK–OH, I’M SORRY. Post: AND I JUST WANTED TO SAY
THAT ONE IMPLICATION OF THAT, TO BUILD UPON YOUR QUESTION,
ABOUT THE RECENT DECISION IN LAWRENCE ABOUT–I THINK
JACK’S ABSOLUTELY RIGHT THAT THE REAL QUESTION THAT WAS SO–
THAT LAWRENCE POSED TO THE COUNTRY WAS GAY MARRIAGE,
AND YOU CAN SEE HOW THE COUNTRY HAS, STATE BY STATE,
FOUGHT OUT THIS ISSUE OF GAY MARRIAGE. IN CALIFORNIA, YOU GET A
DECISION OF THE CALIFORNIA SUPREME COURT, AND THEN
YOU GET IT OVERTURNED BY A CONSTITUTIONAL AMENDMENT. NOW THERE’S A LAWSUIT ABOUT
WHETHER THAT AMENDMENT IS ITSELF CONSTITUTIONAL,
AND SO ON. WE ARE FIGHTING THESE OUT,
AND WE’RE INTERESTINGLY FIGHTING IT OUT IN STATE
VENUES–IN THE STATE OF CONNECTICUT AND THE STATE
OF NEW YORK AND THE STATE OF CALIFORNIA, IN THE STATE
OF MASSACHUSETTS–AND AS A TECHNICAL LEGAL MATTER,
THESE STATE DECISIONS HAVE NOTHING WHATEVER TO DO WITH
THE UNITED STATES CONSTITUTION THAT’S IN THIS BUILDING. BUT IF YOU ACCEPT THE IMAGE OF
DEMOCRATIC CONSTITUTIONALISM THAT WE’RE PUTTING FORWARD,
ACTUALLY IT DOES BECAUSE THAT MEANS THAT STATE BY STATE,
WE’RE CHANGING THE WAY WE LOOK AT THE MARRIAGE RELATIONSHIP. STATE BY STATE, WE’RE CHANGING
WHAT CONSTITUTES THE SORT OF RELATIONSHIPS TO WHICH WE
WANT TO GIVE CONSTITUTIONAL PROTECTION AND HONOR. AND EVEN THOUGH PEOPLE ARE,
AS A TECHNICAL MATTER, FIGHTING ABOUT MASSACHUSETTS
LAW OR THEY’RE FIGHTING ABOUT CALIFORNIA LAW, THEY’RE
REALLY FIGHTING ABOUT OUR LAW, AND THAT’S GONNA ULTIMATELY BE
REFLECTED IN HOWEVER THE COURT IS GONNA DECIDE THIS ISSUE
OF GAY MARRIAGE, IF NOT NOW, THEN THEN. AND THERE IS NO
BARRIER TO ENTRY. YOU DON’T NEED LIFE TENURE,
AND YOU DON’T NEED TO BE CONFIRMED BY THE SENATE TO
PARTICIPATE IN THOSE DEBATES STATE BY STATE, AND IT WILL
HAVE AN IMPACT ON HOW THE COURT ULTIMATELY INTERPRETS
THE CONSTITUTION IN THIS REGARD. SORRY. Siegel: I JUST WANTED TO SAY
THAT EARLIER, LINDA HAD ASKED ABOUT THE RELATIONSHIP OF
DEMOCRATIC CONSTITUTIONALISM AND LIVING CONSTITUTIONALISM,
AND IF YOU IMAGINE JUDGES AS JUST ENGAGING IN MANAGERIAL
CONTROL OF AMERICANS AND THEIR DAILY LIVES, JUST TOP-DOWN
ORDERING PEOPLE AROUND, THE IDEA OF CONSTITUTIONAL
CHANGE IS A SOMEWHAT THREATENING ONE BECAUSE IT’S A
LOSS OF DEMOCRATIC AUTONOMY. BUT WHEN YOU LOOK AT JUDICIAL
REVIEW IN THIS PICTURE THAT WE’RE SETTING FORTH ABOUT THE
WAY–YOU KNOW, IN RESPONSE TO YOUR QUESTION ABOUT SAME-SEX
MARRIAGE, YOU CAN SEE THAT IT’S A MUCH MORE DIALOGIC
PROCESS, THAT THERE’S A DECISION, AND CERTAINLY IN
THE STATE DECISIONS, THERE ARE STATE DECISIONS WHICH HAVE
HAD THAT EFFECT FOR THE RELEVANT COMMUNITY. THERE’S BEEN HUGE ARGUMENT
OVER THEM BUT ALSO EVOLVING SENSE ABOUT RIGHT AND WRONG
AS THE ISSUE HAS MOVED ACROSS STATE BORDERS. IF NOTHING WERE AT STAKE IN
A JUDGMENT, MEANING IF ANYONE WERE FREE TO IGNORE IT, NO ONE
WOULD PAY PARTICULAR ATTENTION TO THE RULINGS OF COURTS. BUT SOMETHING IS AT STAKE. THE INITIAL FIRST COURTS TO
MAKE THESE KINDS OF RULINGS HAD THEIR JUDGMENTS OVERTURNED
BY STATE CONSTITUTIONAL AMENDMENTS, AND THEN GRADUALLY
THEY’VE BEGUN TO STICK IN SOME PLACES AND GET FLIPPED IN
OTHERS, AND YOU’RE SEEING A VERY SERIOUS PUBLIC
CONVERSATION TAKING PLACE THAT JUDGES HAVE PLAYED A ROLE
IN PUTTING ON THE AGENDA BUT IN THE END ARE NOT
THEMSELVES GONNA SETTLE. AND NEITHER WAS THAT
THE CASE IN BROWN. I MEAN,
THE COURT MADE A RULING, BUT IT ULTIMATELY WAS NOT
FORCED IN LAW UNTIL THE CONGRESS ITSELF PLAYED A
VERY SIGNIFICANT ROLE IN GIVING THAT RULING BITE. SO THAT’S A MUCH MORE
DIALOGIC PICTURE OF COURTS. Greenhouse: WE HAVE A FEW
MINUTES LEFT BEFORE WE OPEN IT UP TO QUESTIONS FROM THE
AUDIENCE, SO I’LL ASK EACH OF YOU TO LOOK AHEAD TO 2020
AND ANTICIPATE WHAT MIGHT BE CONSTITUTIONAL–IN THE
DEFINITION OF CONSTITUTIONALISM THAT WE’VE BEEN USING HERE–A
CONSTITUTIONAL ISSUE COMING DOWN THE PIKE THEN. Balkin: WELL, WE EACH HAVE
DIFFERENT SPECIALTIES, AND SO WE’LL TALK ABOUT OUR
SPECIALTIES, BUT–SO LET ME SAY, OBVIOUSLY ONE OF THE
THINGS THAT’S GOING TO BE LITIGATED OVER THE NEXT DECADE
IS GOING TO BE HOW WE BUILD OUT THE VARIOUS SURVEILLANCE
SYSTEMS THAT WE HAVE GENERATED. A LOT OF PEOPLE ASSOCIATE ALL
THIS SURVEILLANCE THAT WE HAVE WITH 9/11, BUT IN FACT IT
PREDATES IT, AND IN FACT WE’VE DEVELOPED WHAT SANDY LEVINSON
AND I CALLED A NATIONAL SURVEILLANCE STATE, WHICH IS
THE SUCCESSOR OF THE NATIONAL SECURITY STATE, IN WHICH
WE INCREASINGLY TRY TO USE INFORMATION, COLLATE IT,
ANALYZE IT, IN ORDER TO STOP PROBLEMS IN ADVANCE,
STOP THREATS IN ADVANCE, AND DELIVER SOCIAL
SERVICES USING INFORMATION DATA COLLECTION. AND AT THE SAME TIME THIS IS
HAPPENING, I THINK PRIVACY HAS, FOR MANY AMERICANS,
BECOME ONE OF THE MOST PRECIOUS AND VALUED
CIVIL LIBERTIES. AND IT’S NOT AN ACCIDENT THAT
THESE TWO THINGS HAPPENED AT THE SAME TIME. AS GOVERNMENT BECOMES
MORE POWERFUL IN A CERTAIN KIND OF WAY,
THEN PEOPLE START TO FOCUS ON QUESTIONS OF LIBERTY AND
FREEDOM IN THE SAME AREA, AT THE SAME TIME. SO IT’S NOT AN ACCIDENT,
BY THE WAY, THAT WHEN THE NEW DEAL STARTS, THE
ADMINISTRATIVE STATE STARTS, PEOPLE START THINKING MORE
HEAVILY ABOUT CIVIL LIBERTIES. IT’S NOT AN ACCIDENT THAT THE
CIVIL LIBERTIES REVOLUTION REALLY FOLLOWS ON THE NEW
DEAL, FOLLOWS AFTER IT. THE SAME THING
IS HAPPENING NOW. WE’RE DEVELOPING ALL THESE
STATE CAPACITIES FOR ANALYZING INFORMATION AND COLLECTING IT,
AND IT’S GONNA LEAD TO A LOT OF QUESTIONS ABOUT HOW WE
PROTECT PRIVACY IN THIS NEW WORLD WHERE GOVERNMENT
NOT ONLY COLLECTS LOTS OF INFORMATION ABOUT US
BUT WORKS WITH PRIVATE ORGANIZATIONS THAT AREN’T
BOUND BY THE CONSTITUTION AND SHARES THAT INFORMATION. AND MANY OF THOSE
SOLUTIONS ARE NOT GOING TO BE FROM COURTS. THEY’RE GONNA BE THROUGH
STATUTES, THROUGH THE WAY YOU DESIGN THE EXECUTIVE BRANCH
TO PREVENT ABUSE, AND THROUGH TECHNOLOGICAL DESIGN. ANOTHER REALLY IMPORTANT AREA,
TECHNOLOGICALLY–SO I’LL TALK ABOUT TECHNOLOGY BECAUSE
I HAVE A CENTER ON LAW AND TECHNOLOGY–IS GOING
TO BE FREEDOM OF SPEECH. FREEDOM OF SPEECH IS GOING TO
DEPEND ON HOW WE DESIGN OUR TECHNOLOGY, HOW WE DESIGN OUR
BROADBAND NETWORKS, WHETHER OR NOT YOU HAVE ACCESS TO TALK
TO PEOPLE USING THAT. TECHNOLOGY IS GONNA MATTER
IN TERMS OF GENETICS, RIGHT? THE NEXT KIND OF BIG
DISCRIMINATION ISSUE COMING DOWN THE PIKE IS GOING TO BE
ABOUT GENETIC DISCRIMINATION, AND WE’RE GONNA FACE ALL
SORTS OF DIFFICULT QUESTIONS ABOUT GENETIC ENGINEERING,
WHICH ALREADY EXISTS TO A VERY LIMITED DEGREE IN THE
WAY IN WHICH WE USE IN VITRO FERTILIZATION. THE SUPREME COURT HAS
ACTUALLY NEVER DECIDED A CASE ABOUT IN VITRO FERTILIZATION,
WHICH IS VERY COMMONLY USED, BUT IN FACT IT RAISES ALL
SORTS OF DIFFICULT MORAL AND INTERESTING QUESTIONS
AND CONSTITUTIONAL QUESTIONS. AND AS THE SCIENCE GETS MORE
ADVANCED AND THE TECHNOLOGY BECOMES AVAILABLE TO MORE
PEOPLE, ALL OF THESE QUESTIONS ARE GOING TO BE IN FRONT OF
US, BUT THE IMPORTANT THING TO UNDERSTAND IS THAT WE
SHOULDN’T THINK THAT THE COURT IS GONNA TELL YOU
WHAT THE ANSWER IS. THE IMPORTANT THING TO
UNDERSTAND IS THAT AS TECHNOLOGY CHANGES AND POSES
NEW PROBLEMS OF FREEDOM AND LIBERTY FOR US,
THE AMERICAN PEOPLE HAVE TO THINK ABOUT WHAT THEY THINK
THE PRINCIPLES BEHIND THE CONSTITUTION MEAN
IN THESE CONTEXTS. THEY SHOULDN’T USE THE
COURTS AS THE GUIDE. THEY SHOULD UNDERSTAND THAT–
THE WAY I LIKE TO PUT IT IS THIS: COURTS ARE BAD AT
TACKLING, BUT THEY’RE GREAT AT PILING ON. [LAUGHTER] WE HAVE TO DO THE
TACKLING OURSELVES. Greenhouse: REVA? Siegel: WELL, I GUESS TO
DRAW OUT A THEME OF THIS CONVERSATION, WE’VE BEEN
TALKING ABOUT THE WAY IN WHICH THE CONSTITUTION IS ENFORCED
BY MULTIPLE ACTORS IN OUR COUNTRY, NOT ONLY BY COURTS,
BUT ALSO BY ELECTED OFFICIALS IN THE REPRESENTATIVE
BRANCHES OF GOVERNMENT, IN THE EXECUTIVE BRANCH
AND THE CONGRESS AND STATE LEGISLATURES, AS WELL AS
BY CITIZENS WHO DON’T HOLD GOVERNMENT OFFICE. AND THINKING ABOUT THAT
THEME AND THE GENERAL NOTION OF THE CONSTITUTION’S MULTIPLE
ENFORCERS, I GUESS I WOULD DRAW ATTENTION TO WAYS WE
MIGHT SEE CONSTITUTIONAL QUESTIONS WHERE WE HADN’T SEEN
THEM BEFORE IF WE LOOKED TO THE ACTIONS OF, FOR EXAMPLE,
THE CONGRESS OR TO THE LEGISLATIVE BRANCHES AND
CONSIDERED THE WORK THEY DO WITHIN CONSTITUTIONAL–WITHIN
A CONSTITUTIONAL LENS. SO ONE BIG EXAMPLE MIGHT BE
THIS BIG NATIONAL CONVERSATION THAT’S GOING ON OVER HEALTH
CARE, SORT OF WHAT ARE THE MINIMUM RIGHTS OF MEMBERS OF
THIS SOCIETY AS EQUAL CITIZENS OF THIS SOCIETY? WE KNOW THIS IS NOT A QUESTION
THAT THE COURT OR ANY COURT WE NOW KNOW IS ABOUT TO TAKE UP
AS AN INITIAL MATTER, BUT WHEN WE LOOK AT WHAT’S GOING ON ON
THE HILL RIGHT NOW, THERE’S A BIG CONVERSATION GOING
ON ABOUT WHETHER WE’RE PREPARED TO SAY,
AS A NATION, THAT THESE ARE THE KINDS OF WAYS THAT WE ARE
GONNA COMMIT TO ONE ANOTHER ABOUT WHAT IT MEANS TO BE
A MEMBER OF THIS POLITY. IT MIGHT BE UNDERSTOOD IN
PROTO-CONSTITUTIONAL TERMS. OR WE COULD MOVE TO ISSUES
THAT WE DO THINK TO BE IN THE PROVINCE OF COURTS–FOR
EXAMPLE, ISSUES OF EQUAL PROTECTION AND RACE
DISCRIMINATION OR CHOICE, FOR EXAMPLE, AND AGAIN,
SHIFT OUR LENS AWAY FROM WHAT IT IS THAT COURTS TAKE UP ON
THESE QUESTIONS AND THINK WHAT IT IS THAT LEGISLATURES
MIGHT ADD TO THE BUSINESS OF ENFORCING CONSTITUTIONAL
GUARANTEES. LEGISLATURES HAVE
DIFFERENT FORMS OF LEGITIMACY AND WARRANT AND CAPACITY
AND INSTITUTIONAL SKILLS AND ABILITIES, AND SO WHEN
WE’RE THINKING ABOUT, OR WE’RE WORRYING ABOUT THE WAYS IN
WHICH THE CRIMINAL JUSTICE SYSTEM MAY HAVE RACIAL BIAS IN
IT, MAYBE THIS IS A QUESTION THAT WE OUGHT TO MAKE MORE
SYSTEMATICALLY, A QUESTION FOR THE LEGISLATIVE BRANCH. CONGRESS CERTAINLY, IN
VARIOUS WAYS, TAKES IT UP UNDER SENTENCING. THIS IS SOMETHING
THAT COULD BE A PART. IT’S HARD TO TAKE IT UP
IN DEMOCRATIC POLITICS BECAUSE WE’RE ALL FROM NEW
HAVEN, WHERE THERE’S A VERY HIGHLY COVERED CRIME THAT’S
BEING COVERED RIGHT NOW. PEOPLE HAVE SECURITY ISSUES
DOMESTICALLY AS WELL AS INTERNATIONALLY, AND IT
MAKES IT HARD TO TAKE UP IN POLITICS, BUT THERE’S ALSO
SOMETHING, I THINK, DEEPLY TRUE ABOUT OUR WORRYING ABOUT
WHAT IT MEANS TO ENFORCE THE EQUAL PROTECTION OF THE LAWS WHEN WE WORRY ABOUT
COMMUNITIES, SIGNIFICANT PERCENTAGES OF WHOSE CHILDREN
FIND THEMSELVES ENTANGLED WITH THE CRIMINAL
JUSTICE SYSTEM. OR YEAH,
THE THIRD QUESTION I HAD PUT ON THE TABLE–THE ISSUE
OF FREEDOM OF CHOICE. IF WE’RE WORRIED ABOUT SORT
OF LIBERTY TO FASHION ONE’S FAMILY LIFE, WHAT DOES IT MEAN
IF LEGISLATURES WERE WORRIED ABOUT GUARANTEEING THAT? WHAT DOES IT MEAN FOR
LEGISLATURE TO WORRY ABOUT FREEDOM OF CHOICE WHERE
THE ISSUE MAY BE A FAMILY’S ABILITY TO RAISE
CHILDREN IN HEALTH? THAT MAY BE ENFORCED AND
DEFENDED DIFFERENTLY BY COURTS– EXCUSE ME, BY A LEGISLATURE
THAN IT MIGHT BE BY COURTS, AND IT WOULD ALTER WHAT’S
AT STAKE WHEN WE’RE TALKING ABOUT STANDING BY
FREEDOM OF CHOICE. IN FACT,
THE ABILITY OF PEOPLE TO HAVE CHILDREN THEY WANT AS WELL
AS TO REFRAIN FROM HAVING CHILDREN IS PART OF THAT
QUESTION, AND IT REALLY SORT
1241
01:00:58,434 –>01:00:00,667
OF PRESENTS DIFFERENT
QUESTIONS TO US AS MEMBERS OF A COMMON COMMUNITY TO
ASK HOW IT IS WE HELP PEOPLE REALIZE THAT–THAT IS,
THE DESIRE TO BEAR CHILDREN AND HAVE A FAMILY AND NOT
MERELY TO REFRAIN FROM IT. SO THOSE ARE 3 I’D PUT
ON THE TABLE. Post: IF I HAD TO THINK OF THE
MOST POWERFUL SECULAR TREND IN CONSTITUTIONALISM NOW,
I WOULD SAY IT HAS SOMETHING TO DO WITH GLOBALIZATION–THAT
IS TO SAY, THE BOUNDARY BETWEEN THE OUTSIDE
AND THE INSIDE. I THINK WE’RE BECOMING
VERY CONFUSED ABOUT THAT. TRADITIONALLY, WHEN WE DEALT
WITH MATTERS AS QUOTE UNQUOTE “SECURITY MATTERS,” WE HAD
A SET OF RULES THAT WE DEALT WITH THEM BY, AND THE
SECTIONS OF THE FBI THAT DEALT WITH SECURITY WERE PARTITIONED
OFF FROM THOSE THAT DEALT WITH CRIME. THE CIA WAS GIVEN ITS
JURISDICTION OUTSIDE OF THE COUNTRY. SO SECURITY ISSUES WERE PUT
TO THE OUTSIDE OF THE BORDERS OF THE COUNTRY, AND WHEN THEY
CAME IN AS SECURITY ISSUES, THEY WERE DEALT WITH IN A VERY
GINGERLY WAY, AND MOSTLY WHEN WE HAD PROBLEMS OF SOCIAL
CONTROL ON THE INSIDE, WE DEALT WITH THEM
AS CRIME PROBLEMS. AND WE HAVE VERY PARTICULAR
AND STRINGENT RULES ABOUT HOW WE DEAL WITH CRIME–WHEN YOU
CAN BE INVESTIGATED, WHEN YOU CAN BE INDICTED, WHAT SORT OF
RIGHTS YOU HAVE, HOW YOU CAN BE PUNISHED, HOW YOU
CAN BE SECURED. WE DON’T ALLOW DETENTION–
PREVENTIVE DETENTION BECAUSE YOU MIGHT BE DANGEROUS–
THAT SORT OF THING. NOW, I THINK AS SECURITY
BEGINS TO COME TO THE INSIDE, AS THE THREATS THAT WE
NORMALLY THOUGHT OF AS COMING FROM FOREIGN COUNTRIES BEGIN
TO BE FELT DOMESTICALLY, AND AS WE BLUR THE LINE
BETWEEN WAR AND CRIME, BETWEEN WHAT’S A SECURITY ISSUE AND
WHAT’S A CRIMINAL ISSUE, ALL OF THESE VERY ELABORATE
DICHOTOMIES THAT WE’VE BUILT UP IN OUR CONSTITUTIONAL
LAW TO WHICH ATTACH MANY OF THE PROTECTIONS OF THE
FOURTH, FIFTH, AND SIXTH AMENDMENTS, ARE GOING TO
BECOME UNDONE, AND WE’RE GONNA FACE SERIOUS CONCEPTUAL
PROBLEMS OF HOW WE DEAL WITH SOCIAL CONTROL AT HOME,
WHY IT IS WE ALLOW OURSELVES TO DO GREAT FREEDOM OF ACTION
WHEN WE CLASSIFY SOMETHING AS A SECURITY ISSUE INSIDE,
CALL IT TERRORISM OR WHATEVER, AND WE PUT SUCH HANDCUFFS ON
LAW-ENFORCEMENT OFFICERS WHEN WE CALL IT A CRIME. WELL, THESE ARE CONCEPTUAL
CATEGORIES THAT ARE VERY ANCIENT, AND THEY MEAN
SOMETHING TO US, AND WE’RE IN THE PROCESS OF WATCHING
THEM DISSOLVE BEFORE OUR EYES, AND THIS IS GOING TO BE ONE
MAJOR AREA OF CONSTITUTIONAL RECONSIDERATION THAT WE WILL
NOT BE ABLE TO AVOID, I THINK, IN THE NEXT 15 YEARS. AND WE HAVE TO THINK ABOUT
WHAT WE’RE GOING TO DO ABOUT THIS. I THINK–I’M SORRY. Greenhouse: NO, I DIDN’T
MEAN TO CUT YOU OFF. I WAS GONNA SAY THAT’S A
VERY PROVOCATIVE NOTE, MAYBE, ON WHICH TO END OUR PART OF
THE PROGRAM AND TO TURN IT OVER TO QUESTIONS,
IF THERE ARE ANY. THERE ARE MIKES, AND BECAUSE
THIS IS BEING RECORDED, YOU HAVE TO ASK A QUESTION INTO
A MIKE IF YOU HAVE A QUESTION, OR ELSE WE’RE HAPPY TO
KEEP MUSING ABOUT THIS. GIVE PEOPLE A CHANCE TO
GET TO THE MIKES. Man: ALL RIGHT. MY QUESTION
FOR DEAN POST– Greenhouse: TALK
INTO THE MIKE. Man: OK, LET’S TRY THAT. MY QUESTION FOR DEAN POST AND
THE OTHER MEMBERS OF THE PANEL– I THINK I UNDERSTAND
THE NOTION OF DEMOCRATIC CONSTITUTIONALISM WHEN OVER
A LONG PERIOD OF TIME THAT CONFRONTATION AMONG
NORMS IS CONVERGING. BUT WHAT HAPPENS IF OVER A
VERY LONG PERIOD OF TIME, THE CONFRONTATION AMONG NORMS
DIVERGES, AND ESPECIALLY IF IT BECOMES A SECTIONAL, REGIONAL
ISSUE WHERE SOME STATES ARE GOING IN ONE DIRECTION,
OTHER STATES IN ANOTHER. HOW DO YOU RESOLVE THAT IN
TERMS OF YOUR VIEW OF THE ROLE OF THE COURT? Post: WELL, I’LL SPEAK VERY
BRIEFLY, AND THEN I’LL TURN IT OVER TO REVA AND JACK ON THAT. YOU KNOW, BROWN COULD BE
AN EXAMPLE OF THAT. ONE OF THE WAYS THAT
HISTORIANS UNDERSTAND BROWN IS AS A QUESTION OF YOU HAD A
SECTIONAL EXCEPTIONALISM–THE SOUTH WAS THAT EXTRAORDINARY,
SPECIAL, PECULIAR INSTITUTION, AS THEY CALL IT, AND THE REST
OF THE COUNTRY HAD HAD ENOUGH. SO IT IMPOSED NATIONAL NORMS
ON A SECTION, AND IT TOOK 2, 3 GENERATIONS. WE STILL, IN SOME WAYS, ARE
IN THE MIDDLE OF THAT RECONSTRUCTION. SO WHEN THERE IS ONGOING
CONTROVERSY OF THAT GREAT AND DEEP NATURE,
THERE ARE NO RULES. I MEAN,
WHAT HAPPENS IS, YOU SEE EMERGENT–YOU SEE THE STRUGGLE
CONTINUE, AND YOU SEE THE TERMS OF THE STRUGGLE CHANGE. SO NO ONE ANY LONGER
DEFENDS OVERT RACISM. NO ONE ANY LONGER
DEFENDS OVERT SEGREGATION. BUT RACE IS OMNIPRESENT IN
OUR CONSTITUTIONAL ISSUES. IT’S JUST BEEN DISPLACED
ONTO OTHER ISSUES. IT COMES UP IN THE GUN
CONTROL QUESTIONS THAT REVA TALKS ABOUT. IT COMES UP IN ISSUES
OF CRIMINAL DEFENDANTS. IT COMES UP IN MANY,
MANY GUISES. IT COMES UP IN AFFIRMATIVE
ACTION, AND SO THE SAME STRUGGLE MORPHS IN ITS
FORM AND CONTINUES. IT’S NOT LIKE IT DISAPPEARS,
AND IT WILL CONTINUE SO LONG AS THERE ARE DIVERGENT VIEWS
ON THE QUESTION IN SOCIETY, AND COURTS ARE NO
MAGIC BULLET FOR THAT. THE CONSTITUTION IS
NO MAGIC BULLET. THE CONSTITUTION BY ITSELF
CAN’T SOLVE OUR PROBLEMS. WE HAVE TO SOLVE OUR PROBLEMS
AND MAKE THOSE SOLUTIONS HAVE THE SHAPE AND SOLIDITY OF
CONSTITUTIONAL VALUES. Siegel: YOU KNOW,
THE ACCOUNT OF DEMOCRATIC CONSTITUTIONALISM THAT WE’RE
GIVING AND THAT APPEARS IN THE “2020” BOOK IS NOT ON
ITS FACE NORMATIVE–NORMATIVE IN THE SENSE OF TELLING A
COURT HOW TO DECIDE A CASE. IT’S NOT A THEORY
OF INTERPRETATION. IT HAS IMPLICATIONS FOR OUR
REASONING ABOUT WHAT IT IS WE OUGHT TO DO AS A PEOPLE,
BUT IT DOESN’T, FOR EXAMPLE, DIRECTLY TELL YOU WHAT TO DO
IN A PARTICULAR CONFLICT. IF WE’RE LOOKING AT THE
QUESTION JUST DESCRIPTIVELY, HOW HAS THE SYSTEM THAT
WE’RE DESCRIBING HERE, OUR CONSTITUTIONAL ORDER,
DEALT WITH THIS KIND OF QUESTION, IT HAS A VARIETY
OF DEVICES THAT RECOGNIZE REGIONAL VARIATION, RECOGNIZE
ENTRENCHED DIFFERENCES OF VIEWS, AND RESPECT THE
HETEROGENEITY OF VIEWS THAT AMERICANS HAVE, DEVICES THAT
RECOGNIZE SOME MATTERS ARE FOR STATE CONTROL AND KEEP THE
FEDERAL GOVERNMENT OUT OF IT, WHETHER IT’S A MATTER OF
THE POWER OF THE CONGRESS TO LEGISLATE OR A MATTER,
EVEN, OF THE COURT TO DECLARE RIGHTS. BUT IN THE END, THIS IS A
UNION THAT DOES UNDERSTAND ITSELF BOUND UNDER ONE
CONSTITUTION, AND THERE ARE MATTERS THAT BECOME OF
SUFFICIENT CONCERN THAT THERE ARE JUST JUNCTURES AT WHICH
COURTS ARE PREPARED TO ENFORCE NORMS AGAINST DISSENTING
MEMBERS OF THE COMMUNITY, EVEN WHERE IT CAUSES
RESISTANCE OR RESENTMENT, AND THERE ARE NORMS OF THAT
KIND WHETHER YOU WANT TO THINK ABOUT BROWN AS ONE OF THEM,
AS AN EXAMPLE OF ONE OF THEM, OR LAWRENCE AS AN EXAMPLE
OF ONE OF THEM, OR HELLER, THE GUN CASE THAT WE TALKED
ABOUT AS AN EXAMPLE OF ONE OF THEM. THERE ARE ACTUALLY AREAS OF
THE COUNTRY THAT ARE VERY PASSIONATE ABOUT HAVING GUN
CONTROL LEGISLATION, INCLUDING THE DISTRICT, AND THEIR
ABILITY TO HAVE IT WAS ALTERED FUNDAMENTALLY BY THE
ENFORCEMENT OF THIS INDIVIDUAL RIGHT BY THE COURT IN 2008. SO, WHAT THAT TELLS US IS
THAT WHILE WE HAVE A VARIETY OF MECHANISMS FOR LEAVING
STATES TO GO THEIR OWN WAY AND FOR LEAVING LOCALITIES
TO GOVERN THEMSELVES AND WE DEFINE RIGHTS, OFTEN,
MORE NARROWLY THROUGH JUDICIAL REVIEW IN ORDER TO PRESERVE
AND RESPECT THAT SPACE, WHEN SOMETHING DEEP ENOUGH IS
AT STAKE, THERE COMES A POINT WHERE COURTS INTERVENE, AND
WE ACTUALLY LIVE IN A WORLD IN WHICH WE WANT COURTS TO
DO THAT WHEN THE FUNDAMENTAL ULTIMATE VALUES ARE AT STAKE. IF A SCHOOL WERE SAYING,
YOU KNOW, “WE BELIEVE “IN RACIAL SEGREGATION. IT’S OUR WAY,” IT’S PART OF
THIS SYSTEM OF GOVERNMENT, ULTIMATELY, TO STEP IN
AND TO SAY NO, AND IF THAT COMMUNITY FEELS
SUFFICIENTLY WRONGED AND IT CAN EXPLAIN ITS WRONG TO THE
REST OF US IN TERMS THAT MAKE THAT WRONG INTELLIGIBLE
TO US AS A MATTER OF OUR CONSTITUTIONAL VALUES, WE MAY
BE, IN THE END, MOVED TO GIVE MORE ROOM TO THEM, BUT IT’S
GONNA TAKE A VERY, VERY LONG PROCESS OF ARGUMENT AT THIS
POINT IN OUR NATIONAL HISTORY. Balkin: AND I SEE IT SLIGHTLY
DIFFERENTLY THAN REVA DOES, SO THIS IS MY ANALYSIS OF IT. BASICALLY, FEDERAL COURTS
ARE NATIONALIST INSTITUTIONS. THAT’S REALLY WHAT THEY ARE. THEY BASICALLY GET THEIR
POWER AND AUTHORITY FROM BEING COURTS OF THE UNITED
STATES AS A WHOLE. IN ESSENCE, THEY’RE
NOT COUNTERMAJORITARIAN WITH RESPECT TO THE NATION. THEY’RE USUALLY ONLY
COUNTERMAJORITARIAN WITH RESPECT TO A PARTICULAR
REGION OR A SET OF REGIONS, AND IF IT TURNS OUT THAT YOU
GET SIGNIFICANT PUSH-BACK REGIONALLY WITH RESPECT TO A
CERTAIN ISSUE, THEN WHAT TENDS TO HAPPEN, HISTORICALLY,
IS EITHER YOU GET NONENFORCEMENT IN THAT REGION,
OR YOU GET A COMPROMISE THROUGH ANOTHER
DOCTRINAL MEANS. MY EXAMPLE IS SCHOOL PRAYER. BASICALLY, THE SUPREME COURT,
IN THE EARLY SIXTIES, SAYS YOU CAN’T HAVE SCHOOL
PRAYER ANYMORE, RIGHT? IN THE PUBLIC SCHOOLS. COMPLETELY UNENFORCED IN
LARGE PARTS OF THE COUNTRY, FOR DECADES. SLOWLY CHANGING. BY THE 1980s, WHAT HAPPENS IS
THAT RELIGIOUS CONSERVATIVES FIND A NEW WAY TO GUARANTEE
THE RIGHT TO SCHOOL PRAYER THROUGH THE FREE SPEECH
CLAUSE OF THE FIRST AMENDMENT. THEY DO THIS BY HOLDING SCHOOL
PRAYER AFTER HOURS ON SCHOOL PROPERTY, AND THE SUPREME
COURT HEARS A SERIES OF CASES IN THE 1980s WHICH NOW–NOT
UNDER THE ESTABLISHMENT CLAUSE, BUT UNDER
FREEDOM OF SPEECH. ESSENTIALLY SAYS THIS IS
SPEECH, AND IT SHOULD BE PROTECTED, AND SO IN ESSENCE,
YOU NOW CAN HAVE SCHOOL PRAYER AFTER HOURS IN SCHOOLS,
WITH SCHOOL STUDENTS, RIGHT? THAT IS THE WAY IN WHICH
REGIONAL CONFLICTS GET COMPROMISED THROUGH DOCTRINE. THE OTHER EXAMPLE
IS ABORTION, RIGHT? THE SUPREME COURT STARTS
OUT WITH ROE VS. WADE, WHICH HAS A RELATIVELY
INFLEXIBLE MODEL OF REGULATION, AND BY 1992,
IT DEVELOPS A MUCH MORE FLEXIBLE MODEL OF REGULATION
WHICH ALLOWS CERTAIN JURISDICTIONS TO COME UP WITH
REGULATIONS WHICH, IN EFFECT, BLOCK THE ABILITY OF A LARGE
NUMBER OF WOMEN TO GAIN ACCESS TO ABORTIONS. IF THEY HAVE ENOUGH MONEY
TO GO OUT OF STATE, THEY CAN STILL DO IT, BUT IN LARGE
PARTS OF THE COUNTRY, AND MISSISSIPPI IS AN EXAMPLE
THAT I KNOW ABOUT, IT’S VERY, VERY DIFFICULT TO GET AN
ABORTION, NOT BECAUSE IT’S ILLEGAL TO DO SO BUT JUST
BECAUSE THE REGULATIONS, WHICH THE COURTS UPHOLD,
ESSENTIALLY MAKE IT VERY DIFFICULT. AND THAT TURNS OUT TO BE–THAT
KIND OF MECHANISM TURNS OUT TO BE THE WAY IN WHICH WE
MANAGE REGIONAL DIFFERENCES. Greenhouse: WE’LL TAKE
ANOTHER QUESTION OVER THERE. Man: YES. I WAS WONDERING IF
THE PANEL COULD ADDRESS THE ROLE OF DEMOCRATIC
CONSTITUTIONALISM IN DEFINING THE BOUNDARIES OF WHAT WE
CONSIDER THE POLITY OR THE COMMUNITY, THE “WE,
THE PEOPLE,” AND I SPEAK AS A LOCAL PERSON. I KNOW THERE’S A COUPLE OF US
HERE WHO HAVE FOUND OURSELVES FROM VERY EARLY ON DEFINED
OUT OF THE POLITY IN THE SENSE THAT WE HAVE NOT GOTTEN THE
SAME RIGHTS TO VOTE AND TO DECIDE UPON THE RULES UPON
WHICH WE ALL–UNDER WHICH WE ALL LIVE– D.C. VOTING RIGHTS, TO BE
VERY SHORT AND TO THE POINT. WHAT IS THE ROLE OF DEMOCRATIC
CONSTITUTIONALISM IN DEFINING WHAT IS THE BOUNDARY OF “WE,
THE PEOPLE” AND WHAT ARE THE FUNDAMENTAL BEDROCK PRINCIPLES
AND RIGHTS OF PERSONS BELONGING TO THE POLITY,
AND CAN WE DEFINE CERTAIN PEOPLE AS HAVING LESS RIGHTS
SIMPLY BECAUSE OF WHERE THEY LIVE? Balkin: I’M NOT
GONNA TALK ABOUT THE THEORETICAL QUESTION. I CAN JUST GIVE YOU A
VERY SIMPLE ANSWER ABOUT THE CONSTITUTION. IF CONGRESS WANTED TO GIVE
THE RESIDENTS OF THE DISTRICT OF COLUMBIA REPRESENTATION
IN CONGRESS, THEY COULD DO IT TOMORROW. THEY WOULD NOT NECESSARILY
BE ABLE TO DO IT THROUGH THE BILLS THAT ARE CURRENTLY BEING
OFFERED, BUT THEY COULD DO IT VERY EASILY. THEY COULD DO IT, FOR EXAMPLE,
THOUGH RETROCESSION, VIRTUAL RETROCESSION, BY WHICH THEY
COULD SAY THAT THE DISTRICT OF COLUMBIA COULD BE TREATED
AS A DISTRICT OF THE STATE OF MARYLAND OR THE STATE OF
VIRGINIA, WHICH IT ORIGINALLY WAS, AND SO IT COULD CREATE AN
EXTRA HOUSE DISTRICT THAT WAY, AND IT COULD ALSO GIVE THEM
THE RIGHT TO VOTE FOR SENATORS IN VIRGINIA OR MARYLAND. THIS IS COMPLETELY
CONSTITUTIONAL. THERE IS NO PROBLEM WITH IT. THERE IS ALL SORTS OF
HISTORICAL EVIDENCE–IN FACT, THE RESIDENTS OF ARLINGTON
VOTED–WHEN ARLINGTON WAS PART OF THE DISTRICT OF COLUMBIA
BEFORE IT WENT BACK INTO VIRGINIA–THERE WAS NO
PROBLEM WITH IT AT ALL. THE REASON WHY IT
HASN’T HAPPENED IS NOT BECAUSE THE
CONSTITUTION FORBIDS IT. THE REASON WHY IT HASN’T
HAPPENED IS BECAUSE YOU CAN’T GET A SUFFICIENT COALITION OF
PEOPLE WHO ARE WILLING TO DO THIS THING, WHICH IT SEEMS TO
ME THEY OUGHT TO DO, SINCE IT SEEMS TO ME RIDICULOUS THAT
THE RESIDENTS OF THE DISTRICT OF COLUMBIA SHOULD HAVE NO
REPRESENTATION IN CONGRESS. Greenhouse: WHY DON’T WE
TAKE–WE HAVE TIME FOR ONE MORE QUESTION. I SEE ONE MORE QUESTION. Man: SPEAKING ABOUT JUDICIAL
ACTIVISM, WHAT DO YOU THINK OF THIS SITUATION IN NEW YORK
BETWEEN THE BANK OF AMERICA AND MERRILL LYNCH WHERE THE
FEDERAL JUDGE HAS TOSSED OUT THE AGREEMENT MADE BETWEEN THE
UNITED STATES AND THE BANK OF AMERICA, AND NOW IT LOOKS
LIKE ATTORNEY GENERAL CUOMO IS GOING TO INDICT
EVERYBODY THERE? Greenhouse: YEAH, I GUESS ONE
COMING ISSUE THAT NONE OF YOU ADDRESSED WAS THE WHOLE
ECONOMIC FRAMEWORK IN WHICH THE COURTS USED TO DEAL
A GREAT DEAL WITH THE NATIONAL ECONOMY. Balkin: IT’S COMING BACK. Greenhouse: IT’S COMING BACK,
SO DO YOU WANT TO ADDRESS THAT QUESTION? Balkin: DO YOU WANT TO
SAY SOMETHING ABOUT THAT? Post: WELL, UNFORTUNATELY,
I DON’T KNOW THE CASE WELL ENOUGH TO COMMENT ON IT,
SO I CAN’T REALLY TALK. IT WAS JUDGE RAKOFF,
IF I REMEMBER CORRECTLY. I HAVEN’T READ THE RULING,
SO I COULDN’T TELL YOU. BUT ON THE ECONOMIC QUESTION,
THE NEW DEAL COMPROMISE WAS COURTS WOULD GET OUT OF
THE BUSINESS OF ECONOMIC REGULATION AND PROTECT HUMAN
RIGHTS, AND THE ISSUE THAT IS COMING UP BEFORE US IS,
WILL COURTS STICK TO THAT? I MEAN,
IT’S BEEN PART OF AN AGENDA OF A GOOD NUMBER OF PEOPLE TO
HAVE COURTS PROTECT ECONOMIC RIGHTS UNDER THE TAKINGS
CLAUSE AND UNDER THE DUE PROCESS CLAUSE,
REGULATORY TAKINGS AND SO FORTH AND SO ON. SO ONE ISSUE WILL BE,
WILL CERTAINLY BE CONTROVERSIAL–THE EXTENT
TO WHICH YOU CAN REGULATE FINANCIAL INSTITUTIONS
AND BE CONSISTENT WITH THE CONSTITUTION AND NOT BE
TAKING THEIR PROPERTY. THAT YOU WILL SEE AN
INCREASE IN LITIGATION AS THE GOVERNMENT BECOMES MORE
INVOLVED, ENTANGLED WITH THE PRIVATE ECONOMY AS IT HAS NOW. Siegel: THERE’S ALSO JUST
INTERESTING STRANDS OF, YOU MIGHT CALL IT, POPULAR
CONSTITUTIONALISM THAT ARE PRESENT HERE IN THAT THE
GOVERNMENT HAS MADE CERTAIN ARRANGEMENTS TO NEGOTIATE
THE UPHEAVALS IN THE MARKET, AND THERE’S BEEN POPULAR
SKEPTICISM AND RAGE AT CERTAIN FEATURES OF THOSE
ARRANGEMENTS, AND THERE’S BEEN INTERESTING STORIES IN THE
PRESS ABOUT CERTAIN CASES WHERE JUDGES HAVE BEGUN TO
SORT OF POKE AT–FOR EXAMPLE, MORTGAGE FORECLOSURES. I DON’T KNOW IF PEOPLE–
THERE’S A JUDGE IN NEW YORK STATE THAT WAS WRITTEN UP IN
THE “TIMES” AS INVALIDATING CERTAIN NUMBERS OF THESE
FORECLOSURES ON TECHNICAL LEGAL GROUNDS BUT IN PART
RESPONDING TO A FELT SENSE THAT THERE HAD BEEN AN
INEQUALITY IN WHO HAD GOTTEN BAILED OUT AFTER THE UPHEAVALS
OF THE MARKET LAST YEAR, AND SO THERE’S SORT OF
BOTH QUESTIONS OF THE ROLE OF COURTS IN THE NATIONAL
ECONOMY AND THE ABILITY TO PRESERVE THE SORT OF–RESTRICT
GOVERNMENT FROM TAKING PROPERTY OF THE WEALTHY,
AND THEN THERE’S THE OTHER SIDE OF IT, WHICH IS THE SORT
OF WAYS IN WHICH POOR PEOPLE ARE–THE LESS STRONG ARE
PROTECTED IN THE PROCESS AND THE INTERESTING WAYS IN
WHICH JUDGES CAN BE VOICES ON BOTH SIDES OF THIS. Post: CAN I JUST MAKE A
COMMENT ON THE LAST QUESTION BEFORE, THOUGH? IT’S ALWAYS SAID ABOUT
DEMOCRACY THAT IT MEANS GOVERNMENT BY THE PEOPLE,
BUT THE INTERESTING THING ABOUT DEMOCRACY, IT DOESN’T
DEFINE WHO THE PEOPLE ARE. YOU KNOW, WHO ARE “WE,
THE PEOPLE”? AND THERE’S NOT A DEMOCRATIC
WAY OF ANSWERING THAT PARTICULARLY, AND SO
THAT QUESTION ABOUT D.C. REPRESENTATION IS REALLY
ALSO VERY MUCH THE QUESTION ABOUT THE PARTICIPATION OF
UNDOCUMENTED AND IMMIGRATION ISSUES AND THE RELATIONSHIP
OF POPULATION FLOWS TO CONSTITUTIONAL RIGHTS. THESE ARE ALL QUESTIONS
THAT WE’RE GOING TO SEE MORE AND MORE OF. MY OWN INTUITION HERE IS THAT
AT ITS ROOT, DEMOCRACY MEANS THAT THE GOVERNMENT IS SUBJECT
TO PUBLIC OPINION, AND WHAT’S VERY INTERESTING IS, WHATEVER
YOUR STATUS, WHETHER YOU’RE IN D.C. AND CANNOT VOTE FOR
A SENATOR OR WHETHER YOU’RE AN UNDOCUMENTED IMMIGRANT AND
CAN’T GET SOCIAL SECURITY– EITHER ONE–YOU STILL
HAVE THE RIGHT TO SPEAK, TO DEMONSTRATE, TO HOLD
DEMONSTRATIONS IN THE STREETS, AND IN THAT WAY AFFECT PUBLIC
OPINION, AND AS YOU AFFECT PUBLIC OPINION, YOU
AFFECT–YOU EXERCISE PART OF DEMOCRATIC SOVEREIGNTY,
EVEN THOUGH AS A TECHNICAL LEGAL MATTER, YOU’RE
NOT PART OF THE POLITY. SO IT’S A VERY COMPLICATED
QUESTION, HOW ONE ACTUALLY GETS REPRESENTATION HERE. IT’S VERY MUCH LIKE THE
ISSUE OF DEMOCRATIC CONSTITUTIONALISM THAT WE WERE
TALKING ABOUT WITH RESPECT TO COURTS. Greenhouse: THAT’S A
TERRIFIC NOTE TO END THIS ON. I THANK THE PANEL. JACK AND REVA ARE GOING TO BE
SIGNING THE BOOK UP, SO FEEL FREE TO GO UP AND GET A BOOK
AND GET THEIR SIGNATURE, AND THANK YOU ALL FOR SPENDING
PART OF YOUR CONSTITUTION DAY WITH US. [APPLAUSE]

Leave a Reply

Your email address will not be published. Required fields are marked *