document was drafted to give you that history is some babies surprised to learn that it does not include of bill of rights george mason proposed be added prior to the end of the constitutional convention that it was unanimously rejected so that state declaration said the federal bill of rights was necessary or even dangerous. so with ratification of no bill of rights so the call for the anti-federalist there also interested in the amendments that will alter the power of the new federal

government. madison n, the father of a constitution but that was unacceptable. for congress to pass the bill of rights once the constitution was adopted to reject those amendments to change that structure with the state ratifying conventions and buys 1788 the broader value of of bill of rights thomas jefferson said that political truth in the solemn manner to counteract the interest in medicine intended and

instead that it goes over to consideration as well send for ratification and that is the tenth the 14 states for those 10 amendments that we now call the of bill of rights. into explorer that legislative history with the special report that is of mail a law of side of vague auditorium and that is available online on the washington times website. in to welcome to this stage

happy bill of rights day. [applause] >> thanks for coming down on one of the coldest bill of rights days in an recent memory on the anniversary of the ratification thanks for the introduction. and as someone who covers the supreme court and the appellate court and of bill of rights is the great privilege to have those

esteem circuit judges that they are on the of frontlines. they are not always self-explanatory. those problems of what they mean in the years ahead. thank you so much for coming out clincher our audience will appreciate how to think about the of bill of rights and imagine the different ways we might have in us digital era up. so thanks again for coming we will have questions later

but we will try to have a conversational discussion about the bill of rights. the lighthouse's issues a law of proclamations and preparatory announcements and the proclamation day and because that presentation looking at what obama had to say about that with his message he said the syllable liberties under the law for many but those that follow the are ratification and sacrifice to four people and goes onto say and talk about the away the rights were

expanded reaching for those ballot workers they remind us our freedom is intertwined you can read it all on the white house website but it it was never inevitable result is people are willing to have those doors of opportunity. i think about of bill of rights that is frozen in the year 1791 or is it something that is applied differently or evolves nor is there a way to reconcile that original language that perhaps is little different from people like james

madison and water we talking about? to bail me have relevance or do they have meaning today? judge come id you have seniority in this group? if so, then with the great distinction is a great responsibility. >> it is an honor to be here i am grateful to be here with my esteemed colleagues. and of those vigorous debates those judges that has taken place since the framing of the constitution. and what i have developed over time, you use the

phrase the bill of rights and frozen in time. i am of the of view there are certain values expressed at the time of the founding of of bill of rights and expresses a definite to view and certain activities and it is our responsibility to enforce those but not change them. what we are about is not determining the merits of the case for what is right and just and equitable but with is ratified by those of the united states.

i am of the school that with those changes made to the law that is the mental process. into make those changes. and with that responsibility. with of bill of rights or the amendments. and with the dispute at hand. a la the of what i agree with ann to salute those on

the brutal night. and then to spring there were a law of state constitutions that the time for ratification and what we have seen in the bill of rights had a very healthy and robust history in 1791. and if it is interesting so far as they contained prescription aimed the government's relation to the individual. but the tax has not changed and without being too much

the facts have changed and technology has brought about the subsequent amendments but face it, of the supreme court decision has changed and all of that informs the of modern-day interpretation of the pragmatic reality and that seems remarkable to me. >> it is repetitive but don't want to seem not thankful. but it in this day and age

the the bill of rights is very succinctly document with these 10 foundational principles. and the words are very st. st. with a due process of law that congress will respect that establishment of religion and you say those words are frozen in time into the constitutional document with those are the words redo unchains them except that constitutional amendment but to apply those words to us circumstances of

the course of 200 years is a i think of it that i a kindly associate in the car could friends make good neighbors. maybe in the human to human context in a van that structure what that bill of rights is the is the whole constitution that is hugely important the division of

>> is there now an annotated bill of rights that you can say based on judicial interpretations and statutory elaborations that answers pretty much most of the questions that might arise under it? or is there still a great unknown that's related to what those very terse but eloquent words mean? >> we don't need to go finish we just started the seniority -- >> we'll start with this end. [laughter] >> well, to keep us 'em moyed there are -- employed, there are, and actually as a matter of reality, it is actually amazing how often i've said to colleagues as a practicing lawyer, as a judge to law clerks i can't believe this hasn't been answered by now. and that's because if defenses are written in the constitution, the country itself keeps growing

and changing and new questions arise as technologies come along, and what's a reasonable search of a stagecoach versus a reasonable search of a car using gps technology, how to you answer those questions. so it does keep -- the issues do keep changing and coming up in new forms. we, you know, on the d.c. circuit have jurisdiction over guantanamo. something you know about. and how the constitution applies to enemy combatants detained in land rented by the united states in a foreign country. well, as it turns out, it hadn't been answered when it first came up, and it had to be answered. so there's new applications that arise all the time -- in and as it turns out, the first answer that we gave was not acceptable to the supreme court. [laughter] >> that was before i came along. [laughter] just kidding.

so i think it's, you know, it's important that, as you said, we're not here to the ore write the constitution. i don't think any of us want to do that, and and i don't want to live in a country where judge just get to rewrite the constitution at liberty. i think we can see countries like that around the world, and that's not what we want to be. but to struggle really hard and mightily with our colleagues to figure out how it applies is a challenge. >> yeah. on the question of whether all the answers are in, of course, the answer is, absolutely not. it's remarkable how much hasn't been decided. and it's equally phenomenal how we haven't even thought of so many questions yet. when i, when i teach law school, i often point out with emphasis that it wasn't until 1976 that the supreme court actually decided the question do you need an arrest warrant to arrest the

person in a public place. now, you might think considering the fourth amendment and 200 years plus of criminal adjudication that question surely would have been presented well before 1976. but there it was. another simple example under the fourth amendment, do you need an arrest warrant to make a routine felony arrest in a person's home. supreme court said, yes. 1980. and you can understand why law students at the time would think, wait a minute, surely the supreme court's gotten around to answering that question. so they are, there are lots of fairly obvious questions that we can anticipate but so many that we can't possibly anticipate that are surely if not yet in the pipeline, are on their way to the courts. >> and i have my theory for why that's taking place and why the bill of rights is, therefore,

perhaps more relevant today than it's ever been. and that's because we live in a time where there's been this vast expansion of the power of government. right if -- right? and so the bill of rights is supposed to help or -- and as government power has increased significantly over the last 40, 50, 60 years or so, those issues come up. more and more we find that individuals' interactions with the government implicate liberty interest and other interests protected by the bill of rights. and so that's why i think it's an ever-present issue, ever-present challenge. so it really isn't frozen in time. these really are dusty old concepts by people wearing three-cornered hads. they were alayoff -- hats. they were alive then, and i think in many ways they're more alive today to than ever as we

try to figure out what does liberty, what do these other rights mean in the modern setting where the government has such vast power to into every nook and cranny of our lives. >> judge given makes a good point. i'll remind us -- judge griffin makes it a good point. justice rehnquist made it a routine part of his annual message on the judiciary lamenting the federalization of crimes. it seems that for a decade or more this was always a part of his end of the year message to congress and the people. and that's the point that you're making by your comment, judge. >> if i could also add though, there's another thing, and that's also monumental changes that have happened over time and to whom the bill of rights

applies or to whom it protects. as originally enacted, it was -- the anniversary we're celebrating applied its limitations on the federal government only, not the states. and who the people were was a much narrower bunch than it has come to be over time where, you know, both the civil war, power of women and as our society has grown, the number of people and the understanding of its protections and its application after the civil war, most of its provisions to the states. and so the, it's a bit younger document in that sense. not chronologically, but in the breadth and scope of its application than i think a lot of people understand up front. and i guess the last thing i would say is it's not only the government changes, but i think there must be something about human nature and how we interact with each other because, you know, the ten commandments have been around way longer, and people still fight about that

equally succinct document, what it says and what it means and how it applies to their daily lives. as our interactions change, we just keep debating over how documents operate in that context. >> just a little historical note, you know, there's many communities around the country you can see a ten commandments monolith in front of a public building or elsewhere. it actually was, believe it or not, a marketing campaign for the movie, and we wrote about this. there was a, that the fox studios and the fraternal order of eagles had a great marketing thing where stars from the picture went and unveiled these monoliths around the country. so there's an interesting story there. but that'll be on another night at the archives -- >> like the supreme court cases. >> that's exactly right. involving the first amendment, which we'll get back to. >> can i -- i think something that's worth commenting on has just to occurred in our, in our agreement about something that's very fundamental. so we began by saying we all

agree that the role of a judge is to understand what the amendment means and to apply it dispassionately. we all have different backgrounds, we're appointed by different presidents, and that's a view that we all share. that's not a view that is shared universally. there are many in the academy and there have been times in our nation's past where some judges took a very different thought that the provisions of the constitution were an invitation to judges to construct their own vision of fairness or justice. and that's just not a view that, at least in my experience, that reigns at least on my court or the courts of appeals. and i think it's really important for the american people to know that. the judiciary has, battles over

the judiciary are high hi political. but in -- are highly political. but in my experience, 11 years on the d.c. circuit, this is the view of the judges regardless of the president who appointed them. as justice kagan said at her confirmation hearings, it's the law all the way down, right? it's law at every step. it's not, you're not -- judges aren't using their position to advance their own view of what the just society ought to be. we're doing the best that we can to follow the law as enacted by we, the people. and something judge davis said, i think, is really important in terms of how the three of us go about it. we don't get to look at the constitution, understand its history and decide on our own what it means. because we are, as the constitution says, we all belong

to an inferior court, right? it's the supreme court that's the ultimate arbiter, at least as far as we're concerned, of what those provisions mean. and so that means that even if i have a personal view that would differ from the supreme court's about the meaning of some provision of the constitution, stare decisis precedent requires that these three judges here and our colleagues follow what the supreme court says. now, this might be a more interesting discussion if we were three justices, right? because the rules work a little differently for them. >> there's an opening, i hear, so if you want to raise your hand. [laughter] >> i've never heard a more elegant description of locker in v. new york. i think it was buried in there. >> that's a due process question with. we'll get to that. one point just for the audience for people who may not be versed

in legal scholarship, that, you know, in law the later-enacted measure takes precedence over something that came before or at least helps intercept something that came before. and so what the judges were talking about is that you had other amendments like the 14th amendment and subsequent amendment that give, perhaps, another angle to look at prior enacted provisions that initially only applied to the federal government under the bill of rights. and that's -- and because there are suggestions in the 14th amendment about application of the bill of rights to the states but not a direct command, that's left a fair bit of leeway that we've seen over in the 20th century particularly about how those measures apply. but that's just sort of a background that, yes, it's not frozen, there have been subsequent amendments which in some ways give more meaning to the words that came before and reflected what people saw at the time, if i'm not wrong. correct me if i'm wrong. so -- >> well, the classic example of that, of course, i'm backing you

up here, jess, this is no equal -- there's no equal protection clause in the fifth amendment, but there is in the 14th amendment. one of the civil war amendments. and the supreme court -- seems to me correctly -- inferred that the meaning of due process in the fifth amendment surely must include the equal protection guarantee that's more explicit, not more explicit, is explicit in the 14th amendment. so that's iconic -- >> is there a specific thing that would be different, perhaps, if it wasn't? >> well, if there were an equal protection clause in the fifth amendment, maybe the 14th amendment wouldn't have been necessary. >> could be, could be. but as judge davis, i think you're talking about this case from the '50s where after brown v. board of education found that equal protection of the. >>th amendment -- of the 14th amendment applied to the states. federal government, d.c.,

federal enclave had segregated schools. could you possibly have a situation where segregation was illegal in all the 50 states but completely constitutional in the united states, in the capital of the united states? that'd be like saying people here couldn't vote. [laughter] so -- preposterous. [laughter] so a little constitutional joke there, forgive me. [laughter] bill of rights day is always kind of a fun day. >> fun day. [laughter] >> let's talk about some of the specific provisions of the bill of rights. the first clauses apply to religion. the congress can't, as you say, make -- passing laws respecting establishment of religion or prohibiting the free exercise thereof. we've seen those clauses, the free exercise clause, the establishment clause be very important many litigation -- in litigation around the country. they constantly come up. the first words in the bill of rights x yet they still are a

measure of dispute over what exactly they mean in each particular case. they apply equally to very established religions like christianity or judaism or islam and newer ones like one from utah which believes in mummify case and had its own alternative bill -- ten commandments that they wanted to put up on monoliths. how do you figure out what those words mean? i mean, establishment of religion to someone in the 18th century maybe meant the established church of england, right? or the official government church. that's what "establishment" meant. what do they mean now when we have a country with many, many, many more religions, where a government is not in a position to judge and shouldn't with be the validity of one religion over another, where government programs and policies may conflict with tenets of different religions? and all you've got are those

half dozen words or what have you in the first amendment to figure it out. how do you even approach a question like that? >> well, this is where the work of organizations like -- [inaudible] comes in to be so helpful. in many ways, it's a matter of history. i mean, we're talking about trying to recover -- not to recover, trying to understand what did the framers intend by that. what was the understanding of the public at the time that the amendment was ratified. and that's a historical quest. now, we're not historians, at least i'm not a historian. and so we're generalists. but the -- at least as i perceive it, the quest that we're on is a historical -- once again, to identify what is the value that's being protected or expressed and then how does that apply in a circumstance which may be very different in some ways than it was before.

at least that's how i approach it. i start with the history of the matter. >> well, and i would say first of all, you know, you have to start with the whole text. that's one thing. so it's not just an establishment of religion, it's laws respecting an establishment of religion, so we have to figure out what respecting means as well as what an establishment means and what religion is. sometimes that becomes an issue in its own right. now, we're the lucky ones, we aren't taking the first cut at this document. it has been interpreted by many judges and justices before us. and so in addition to history, we look at what, in particular, supreme court has said those words mean and the lines that it has sort of drawn, how it's said where the fence hall lie. and that at least -- shall lie. and that at least gives us a

framework for trying to figure out how it, how the next step, how the next link in the chain is supposed to go when you see dividing lines that they have drawn, what is okay and what is not okay. now, that is, you know, an ongoing -- it is a work in progress in the sense that new decisions are always coming. but i always find it really helpful to look at those decisions and study them not just for what they held in their case, but the reasoning and principles that they give, sharing their ideas on what those historical documents say and what the line was that the bill of rights meant to draw there. what's the word that it used. >> and i think interpretation also draws on the ongoing dialogue that takes place between the people and the courts and especially between congress and the courts. and particularly in the first

amendment context, congress has spoken drawing on what congress believes those words mean or should mean, because congress has a voice in the interpretation of the constitution and the bill of rights every bit as much as the courts do. although courts, the supreme court is the last word. there are lots of other words out there to be spoken in the effort to draw meaning from these, from these words. so i think that hearkening back to your earlier comment there is this dialogue that goes on that, as i say, plays a role in figuring out what those words meant back then and what the practical application of those words are or should be today. >> if i could add, we as judges -- people don't come to

us and say, wow, here's an interesting constitutional question, what do you think. we have, this is knot in the constitution, an adversarial system of justice in which -- this part is in the constitution -- cases come to us, we're passive in the sense that we don't reach out to decide issues. people have to come to us with, in terms of the body of the constitution, cases or controversies. and they present the dispute through, you know, their lawyers and will tell their story. here is the problem. here is the conflict. here is its impact. here's what it means. and that gives some real flesh to, literally, some real flesh to what the dispute is and evaluating how is the government operating on this individual. what impact is it having on their religions that gives us a concrete framework in which to take those precedents, take those historical documents and apply them.

and so i think it's different than some other countries where, of course, we have a much more, you know, what do you think role and offering advisory opinions as is often referred to. we courts have a much more circumspect role in that sense which is consistent with, as judge griffin's explained, the fact that we're not elected and we're not writing a constitution. we're here to solve problems that people have. >> and this religious liberty issue dramatizes in high relief the currentness of the controversy over the meaning of the bill of rights. look at something remarkable that's happened in my lifetime. back in 1993 the congress of the united states unanimously passed a bill called the religious freedom restoration act. president clinton signed it with great ceremony in the rose garden.

it was, he considered, one of his signal achievements. there was unanimity about -- it was not a partisan issue. here we are some 30 years late persian it's a very partisan issue. the phrase "religious liberty" itself for many a code phrase for bigotry. the same, effectively the same bill that was passed unanimously by congress causes a great deal of controversy in states today. i'm just mentioning that to say how fluid the situation is and how alive these phrases are. you were saying it's not -- these things aren't settled. they're very much alive, and, you know, the courts today and in the coming years are going to be faced with these issues about what does religious liberty mean today in the marketplace, in the public square. and it's a fluid situation. >> yeah. i mean, because we're talking

about, you know, we're 15% into the 21st century, we've got a bit to go, do you have any thoughts on what are the questions, you know? i'm not asking for the answers, but what are the questions, maybe more specifically we're going to see in terms of establishment of religion or free exercise of religion? what do you think might be coming down the pike when we look at -- >> doesn't take a crystal ball on the free exercise. it's the tension between our national commitment to nondiscrimination, right, to equal protection and our national commitment to freedom of religion. and how that, how that plays out. i think that's, i'm not a prophet, but that's an issue that's not -- it's right in front of us now. i think on the free exercise side of it, that's the -- >> right. and i think, you know, for the audience when you think about what is exercise or free exercise of religion mean, one of the ways this issue has come up has been the supreme court

recognized same-sex marriage. a lot of americans have religious objections to it. to what extent did they have to through their commercial activities support or at least serve same-sex marriages? that's one of the issues we've seen mainly as a state court issue under state anti-discrimination laws. but, you know, what is that boundary. but one can imagine many other types of questions coming up over the century ahead about, you know, new, different religions having objections to different things that could arise and drawing that line is something that's hard. and i guess, you know, so that's certainly one we're going to see, and that is interesting in that the supreme court has really enunciated a right that was not recognized before. and it's caused, you know, a reaction. what about -- >> [inaudible] >> sure. >> because i think it is not a

linear with process. we don't say, okay, this year let's deal with the first amendment. we can march through it here, but that's not how it works. so what happens is you had the religious freedom restoration act was in response to one supreme court decision contracting what had been a prior understanding of the free exercise clause. you've got that going on, and you've got -- at the same time, there may be changes or shortly thereafter changes in the scope of the equal protection clause and roles of states versus federal governments getting changed over here. so there's lots of pieces getting interpreted all the time by the supreme court. they're marching through all different amendments, a variety of amendments every term, and it's how those pieces come back together that themselves create new issues. synergies that come out of this as we keep working our way through our constitution and how it applies to our lives. so that's what can create new issues that before didn't seem to come up because the understanding and interpretation

the supreme court has given us has changed. >> and here, in my view, here's the good news and the bad news. the good news is the constitution seems to be a part of almost every political discussion that takes place in any election. and it's fashionable, and i know julie's got her pocket copy of the constitution, and i think judge millett has hers -- >> i did, i brought -- >> i've got a bigger version, but it's fashionable in washington amongst politicians to have your pocket constitution, and that's great. the more education, the more discussion we have about the constitution, the better. that's the really good news from my vantage point. the bad news, it isn't easy to understand. these are tough issues. and as judge millett said and judge davis said, they're set forth in spare language, language, much of which was written in the 18th century.

we don't talk that way today, so there's just the rhetorical challenge of reading old language. but more than that, we have courts and individuals who have struggled with these for years. and to try and understand the historical setting, to try and understand the development of the issues as they've developed over the years, it's not, it's not easy. it's not easy work. it's hard work. but, you know, we can to hard things. that's the the, that's what citizenship is to be about. but i offer that just because i'm -- as a citizen and even as a judge, i'm a little bit wary of folks who come before us in court and say this is clear. it's easy this way. it's not. they're difficult issues, and we just identified one, the competition between nondiscrimination principles and religious liberties. those are tough issues.

and they need to be resolved by thoughtful citizens and, hopefully, thoughtful judges, because they're big challenges ahead of us. >> and you can even get them within the first amendment. there's been many, many cases about competition between free peach and free exercise of religious -- free speech and free exercise of religious. all three clauses coming together and when is the free speech of religious groups, is there a risk when public, when government recognizes that, are they then establishing a religion? be and are they discriminating against the speech of other people? is so even within amendments themselves, they can start trying to figure out where those lines are. it becomes a quite complicated task. >> that's exactly right. and what you're hearing a description of, of course, and you know this intuitively is a clash of values, a conflict in values. as a country, as a society, as a

democratic family -- small d democratic -- [laughter] we have a number of values that come into conflict. and, indeed, as you've just heard from my colleagues, many of those conflicts arise themselves within the context of bill of rights guarantees. and it is hard, it is hard. it requires hard work on part of judges, and i think part of what this program is about, it requires hard work on the part of is the citizenry -- of the citizenry to do the work as best you can given where you are to understand the document in the bill of rights guarantee so that you are an informed citizen and can be a part of that dialogue to which i referred earlier. >> let me ask you about one of the things, and we took, you know, that i think is really foremost on people's minds as we think about the top thetic tonight which is the -- topic tonight which is the effect of technology on these different rights that we see.

for example, you know, the first amendment refers to freedom of the press. well, in the 1790s the press was a thing made out of wood with metal pieces, you know, little letters, and you knew how to twist it, and it pressed a, you know, printed a page. now, what is the press? anybody, would, you know, their phone and twitter. we talk about, you know, all, you know, the freedom from search and seizure in the 1790s. a search was, you know, the red coats grabbing you and having, and looking through your pouch, you know? and what a searching now can be, you know, some algorithm in a server sitting somewhere or in a satellite, you know? how, how do you reconcile these massive technological changes that by their very scope may change, there may be, you know -- does the quantity of

change affect the quality of the right or the protection? >> well, the genius of the founders, and and i use that word advisedly because as justice marshall was wont to say and you heard it echoed in jess' summary of the president's statement today, the constitution was just a remarkable document, but it wasn't perfect. and there's no perfection in human endeavor. and justice marshall used to say how the amendment process, including the first ten as well as the reconstruction amendments and others -- one of which we celebrated this year, giving the vote to half our population 100 years ago -- there's a lot of imperfection there. but the genius of the founders was to craft the document, including the bill of rights despite the specificity you find in many of the amendments, that

would account for the unforeseeable and the unforeseen. and is so, yeah -- and so, yeah. who is the press today? some blogger? my daughter who texts her friend about something, a public interest? these are hard questions, as judge griffin says, and we start with the text, but the text isn't going to give us reliable answers. the text alone today will not give us reliable answers to these profound questions. and so we've got to look to other sources beyond the text, certainly tradition and history, but even the text tradition and history aren't going to provide the answers. and so, yeah, it's tough work. so go and tell your friends you met three judges tonight, and they do really tough work. [laughter] >> so i had the privilege of

being on the three-judge panel of the d.c. circuit that first considered the case that, excuse me, became the jones gps case. the case was whether the police attaching a gps to a car without a warrant violated the warrant clause of the fourth amendment. and it was a fascinating case. the briefing, the arguments by the lawyers on both sides were just spectacularly good. i can't disclose what took place in our conference with the three judges, but i took a great deal of pleasure in noting that the press accounts assumed that the judges would have various views on issue by virtue of the president that had appointed us. and i the can tell you when we got into conference, all of the press accounts were entirely wrong in their guesses. because what we were dealing with was a novel application of

a longstanding principle. but how does it apply in a circumstance that literally has never been had before. and i have to tell you, it took us months for the three judges before we could decide what the outcome was. and that's not typical. in most of our cases we hear the oral argument, and in fairly short order we know what the outcome will be and then write opinions about it. in this case, it took months of exchanging memos back and forth amongst the three judges because we were wrestling with this issue what does the fourth amendment mean when it comes to gps surveillance. i mean, obviously, if you talk about gps surveillance to anyone in 1791, they'd have no idea what you were talking about. but the it was a combination of, again, the historical work was significant to try and find out what is at the heart of this fourth amendment which is such a critical and important bulwark

against government overreach into the private, into the lives of private citizens. what was, what was involved with that. i'd like to report that the supreme court adopted our reasoning. it did not. i think justice sotomayor did, but justice scalia ended up with the same result we did, that it was unlawful. but for different reasons. but the struggle, watching that process unfold as we struggled with the historical question, trying to identify the value and is seeing how that value might apply to a completely novel circumstance was actually an exciting adventure. >> i was going to say i think, and you may recall from the case as well that there ended up even being lines talking about, well, what would happen if back in, when the bill of rights was written had taken an itty bitty constable and put it in the stagecoach?

so there are, you do certainly try to analogize as best you can, although i don't -- it's hard to analogize itty bitty constables. but, you know, even when it's a new, novel application, you're asking yourself what is the line that was drawn here between governmental power and individual rights. think about it. think about it in ways that are at least is there an analogy, is there a reference point, is there something somewhat similar in prior cases that we can look to. and that's what we try to draw upon in this process. >> yeah. this was, this was a case where, as judge griffin said, the police just slapped a gps tracker on a guy's car without -- they had a warrant, but it was expired. so for legal purposes, they didn't have a warrant. and the government's argument was that, well, if i was a cop standing in the street and i saw someone, i could just follow him down the public street, so this is just the same as if i had an

unlimited number of cops who could follow the suspect down every street 24 hours a day for three months. because it's, in theory, the same thing. and the tease circuit said -- the d.c. circuit said, well, no, it's not really the same thing. the supreme court also said it's not the same thing. they had different reasoning, but i think it was a unanimous decision that affirmed -- you had a majority opinion, a concurrence by justice sotomayor and then you had a minority opinion. but they all agreed that this was a search. whether it was reasonable didn't come up at that point, but there was an implication -- >> i have to tell you what sort of struck me was i was late to watching "the wire," the show on hbo, but i was watching it x. there's like, in season two they just do that. [laughter] well before your case came up that this is such a novel thing, it's actually a plot line. they're actually in a garage,

and they just put the tracker on it. so it was well, i mean, they were just doing it, okay? so by the time it got to your court, it maybe was sort of part and par el of police practice -- part and parcel of police practice here in the chesapeake region. >> we all know life imitates art. about 15 years ago justice scalia, in a remarkable opinion, anticipated griffith's case, a piece of technology known as the thermal imager. and the argument made in that case was, well, we could -- this had to do with a marijuana grow operation in oregon. and the argument, one of the arguments the government made was we could station officers outside the house and detect rate of heat escaping from the house by measuring the relative rates of snow melt from the roof, which is certainly true.

and justice scalia said, no, no, no, it's not the same thing. it's not the same thing. so these practical considerations of cost and traditional practice do come into play. and by the way, in that case apropos be judge griffith's earlier comment, justice scalia wrote the majority opinion in favor of the defendant in that fourth amendment case, and justice stevens wrote the four-justice dissenting opinion. so one can't always predict based on sort of traditional notions of how judges are going to come at some of these questions, how they're going to actually come at them when the real concrete cases -- >> you can always predict those two justices will always be on the other side no matter what the issue. go ahead. >> i was just going to say part of what's going on is things are evolving. life is changing and evolving, so it's not often things are

coming entirely out of the blue. sometimes they do. part of the issue is how much information. it's not just that you're following someone, it's how much information they can accumulate and collect. it was how much -- like you said, you wouldn't have that many police officers and how much information the government could get at hand. and we've had this same issue when police officers transition from fingerprinting to dna. the amount of information you get from a fingerprint is one thing, the amount you get from swabbing the inside of somebody's cheek is another thing. and dealing with, you know, where does that cross the line? when government gets more information, is it getting too much, or is it just getting what -- is it doing a similar thing, something physical to you, to get information it needs for identifying purposes? and these are the types of balancing requirements that are built into the fourth amendment's constitutional tech that we're trying to apply -- text that we're trying to apply. it's not just the technology itself, but what the technology

can sweep in and the amount of information it's providing. >> and justice kennedy's opinion in the case just referred to was quite emphatic in its reliance on current knowledge that the dna protocols used by the fbi and the states for so-called dna fingerprinting will not reveal anything about the person other than the identity. and there are very reputable scientists out there today who say that assumption clothed in such assurance actually may not be true. we don't know all that we might come to know about what's in this so-called ted dna. dead dna. so it's a moving target. the bill of rights is not a moving target, but its

application in concrete cases is a constantly moving, dynamic enterprise. >> and in that case just for our home audience and those here tonight, that was another 5-4 case at the supreme court, and the flip was justice thomas who often agrees with justice scalia. but scalia was in the dissent along with justice ginsburg in that case. they held that the swab is okay for identification purposes, although in that particular case the police really did know who their suspect was, but their assertion was they were doing it for that reason. but it did raise this question of we can find out not just the person's identity, but his whole genetic history, future and so on. police said we're not looking at that, and the court accepted that. perhaps there'll be a case in the future where authorities go further and the question of whether they can or not. i guess that may come up as well, the courts have upheld warrantless aerial surveillance of looking in people's backyards. that's pre-drone. now that everyone can get a

remote-controlled device and fly it over someone's backyard to see what's going on, maybe that will be a question that arises at some point. let me ask -- believe it or not we've got, we've got 30 more minutes, but i want to keep moving along on these ten amendments. you know, the second amendment one amendment until very recently did not have an authoritative statement from the supreme court at least on whether it contained an individual right to possess a weapon at least in some circumstances. and the court said by a 5-4 decision that it does. a affirming a d.c. circuit opinionment -- opinion. but technology affects weapons. one question out there is, is a taser the kind of weapon that is protected by the second amendment right. you know, weapons i guess at the time of the adoption involved

muskets or knives. what, how do courts approach that? is a, you know, how to you decide if a taser is a weapon that is included? what about other types of new devices that might be weapons or might be recreational devices? there was a case from new york involving martial arts equipment. is that a sporting equipment, or is that a weapon? does it trigger constitutional rights? how are you going to draw that kind of line when, obviously, the framers -- thinking about colonial militias -- were not thinking about tasers to or stun -- tasers or stun guns or nunchucks. >> i don't know. [laughter] no, i think we do know, the supreme court has told us in the heller decision that you referred to, that the second amendment is not limited to simply the types of technology that was available, excuse me, in 1791.

but then that introduces the question that you've asked, what technology does it include. and, obviously, we can't answer the taser question now. that's an issue that hasn't been resolved and and not in front of us. but i think the methodology is still the same. you try and, you know, identify the value that was protected in the amendment and then apply it here. i will say this about the second amendment, i was on that case that became heller. it was called parker in the d.c. circuit and then went up and became heller. and i can remember well -- i don't know anything about guns. i'm a suburban guy, grew up in fairfax county. guns scare me to death. but i can remember seeing that the case was going to be on my docket, and with some excitement i blocked off an entire week

that i was going to work just on this case. and i remember getting all these law review articles out of all these briefs, and my clerk and i were just going to spend a week working on this. and i began by reading some history. i remember reading an article by sanford levinson from texas, lawrence tribe from harvard, i thought i would start with some political progressives, see what their view of the matter was. took me about six or seven hours to get through those. and to me, the history showed, whether i liked it or not, showed that in 1791 there was this background assumption that people had the right to a firearm to defend themselves. but i blocked off a whole week of, to prepare. so i went ahead and read through

all the briefs. to me, it was not a particularly difficult case after that. the supreme court, it was split 5-4, but it was a very significant case in many ways because both the majority and the minority used this model that i was talking about of learning the history, trying to understand what was happening in 7-- 1791, what was the value that was codified. and as we know, the supreme court decided that there is a right to bear arms to defend yourself in your home -- that's as far as they've gotten right now. but now we're dealing with what beyond there. and those are unresolved issues for us. >> well, what's amazing about that case is not only, as you said, it took until relatively recent times for that even to come up, for the supreme court

to resolve, but it was a few years after that that they decided that the second amendment right applied to the states. that was d.c. and so they hadn't yet even decided when that was a right only against the federal government or the state governments. and while that was the case involving what type of arms are covered under the second amendment, there's still, you know, where you get to bear these arms is still, are still very much open questions. you know, the understanding being that you can't march into the supreme court with them, that security interests must come into play -- >> or here. >> or here. >> or here. [laughter] >> so there is, you know, there's much yet to be resolved in that area. and, you know, on the technology front the types of arms, while we still have rifles like folks may have had back in, somewhat like what folks would have had

back in the day, there are, as we know, incredibly powerful weapons, automatic guns that -- bazookas, these types of things and how it's going to apply to things with that level of lethality is still yet to be resolved. >> i'd like to invite you all to come up and have questions of, and we'll keep talking while you line up on both sides of the theaters. and, again, the questions we ask, i'm trying to talk broadly about these issues. but here we'll take a, an audience question. >> justice in the case of cherokee indians, justice marshall made the decision that they should not be moved, and president jackson said that justice marshall has made a decision, and he should go and enforce it.

do you think the new president-elect is going to have the power to abandon the bill of rights and the constitution altogether? >> well, this is a question about, you know, what is the authority of the courts when they make a decision. there's a story that -- we don't know if it's true, but it's too good to not be true, so let's assume it is. [laughter] when the supreme court ruled in favor of the cherokee indians who were being dispossessed of land, they had a treaty right to, president jackson soon to be off the $20 bill -- [laughter] said, well, you know, chief justice marshall's made his decision, let him, you know, you and what army, basically. well, you know, what is the authority of the courts to have the government, we've got, you know, whether it's the current president or the next president or the sheriff in some county in

a remote part of the country. why, why to they follow your interpretations? how can you know that they are when you've got such a big country and people have power from the white house to the city hall to the local county jail? >> well, i doubt that any one of the three of us wants to say a word about the president-elect. but i will say this, and others have said it far better than i could possibly say it. there was an allusion earlier tonight. perhaps this word wasn't used, but as unelected members of the third branch, what we hopefully bring to our work -- and i know that my colleagues sitting here with me do -- is a humility in the work that we do. as judge millett said earlier,

she won't want to, she wouldn't want to work in a system where judges could write the constitution. what i'm trying to say is that it's your faith in our probity, in our integrity and our commitment to our oath that makes it possible for us to do our work. you know? we're known as the least dangerous branch, and it's been said we don't have armies, we can't raise taxes. it's only the belief of the people in what we do that gives meaning to john marshall's famous dictum that it's a constitution, and it's the judicial branch that gets to interpret that document. and i, and i suspect my colleagues to a greater or lesser extent, have had the great privilege to travel around the world working with judges really in africa, in east asia, in eastern europe, and i wish

that every citizen of the united states could share in some of those travels and is see, for example, as i saw in zimbabwe the abject fear on the part of the judges of the supreme court when visited by one of the ministers from the government who said to him we would hate to see anything terrible happen to a member of your family. in response to a judgment that the court had rendered. so it's important that with our judicial independence which is critical to the work we do and to our real system of democratic governance, constitutional democratic governance, that we stay in to our lanes which is, i guess, the phrase of the year and continue to work to earn your trust and your regard. and this includes, of course,

members of the elected branch so that they will continue to give credence to our judgments. [inaudible conversations] >> i mean, judge davis is exactly right, and i think it would be an enormous mistake if anybody left this session thinking the bill of rights and these important issues we've been talking about are just for lawyers and judges to resolve. we have to decide the cases that come to us, but appreciating and valuing and defending the bill of rights is, i think, the patriotic duty of every citizen. and you need to understand the bill of rights which we're aptly focused on, it's the 225th anniversary, is part of a larger document. we began by saying the original constitution with its structure of government, dividing it between the three branches of government as we know and states and the federal government, but

it is actually a whole document and has to be read together. and the bill of rights has to be read in the context of the end ration of powers, the role of the different branches, enforcing and respecting the bill of rights and all parts of the constitution. and i think it is absolutely critical that people teach this to their children. we have to teach it to our children. we have to teach it to each other, but we also have to understand that these values, these fences we've been talking about are really what define us as a nation and make us different than so many other constitution -- constitutional systems of government. they really are. and we don't appreciate them, if we don't understand them, if we don't defend them, if we aren't willing to talk with each other -- and that means living it too. if you're not willing to understand the principles of the beautiful diversity of our

country that is embodied in the bill of rights, the free speech, the freedom of religion, the equal protection, then you've got to live that in your life as well. and we need to, we really need to come together as a country on that. and that is that we believe deeply and mightily in our constitutional structure of government, and we may not always agree. we won't always agree on exactly how those words are going to apply in each new case one at a time. but we treasure and revere those values, and we respect the integrity of our governmental processes, and the courts as they are doing their darnedest and best efforts to try to apply it with integrity. judge us on the integrity of to our reasoning. you might disagree, but have we reasoned through in a way that is respectable and consistent with what we've discussed tonight. >> you know, i think one of the really remarkable things about the american experience is how frequently when the supreme

court decides an issue and it's contrary to what the president or the executive branch thinks, what do they do? they follow supreme court's interpretation. that's a remarkable testament to the strength of the constitution and to the society that it's created. but that will only continue and happen -- and we've heard a lot about justice marshall tonight, and properly so. justice marshall famously said that's only going to happen as long as the judiciary has credibility, that we're not just junior varsity politicians as justice breyer said. that what we are is we're trying to apply the law as it's been enacted by we, the people. but i think the history is remarkable in that regard. that when the supreme court decides an issue, a

constitutional issue, the executive follows it. that's been the unbroken history. >> right. well, you know, history doesn't only move in one direction, but it is true that that example from the 1830s, justice breyer wrote a book where he points out by the 1950s the supreme court and the judiciary had gained so much credibility in our system that after cooper v. aaron when the supreme court said the schools had to be integrated in little rock, arkansas, even though president eisenhower disagreed, he enforced that decision. on the other hand, former house speaker gingrich said he thought cooper v. aaron was wrongly decided. so, you know, these things are always open for reconsideration. let's -- we have a question on this side. >> yes. first of all, thank you for coming here tonight. as a college student, i've -- there's been increased concern

that college administrations are kind of stifling free speech on campuses. so my question is how do you think the application of the bill of rights evolved in its application on college campuses in the past ten years? >> well, part of it is which college. first of all, the constitution does not police the interactions of private -- >> specifically public universities. >> has to be a public university. or college that you're dealing with. and then, you know, there are -- the first amendment has its rules about freedom of speech, and people can bring disputes and challenges. and we've had establishment clause ones involving the university of virginia as well, lewins between free speech --

lines between free speech and the establishment of religion as we've talked about before. .. >>

>> but that to rise on a niort most basic set of foundation is your answer to everything taxpayers have voices. >> obviously we cannot comment on any particular dispute but freedom of speech the idea is man in mind it is uncomfortable speech with those decisions

by the supreme court of the united states that is what it means. also freedom of religion. added is intended to create a space about uh nature of reality. and where we feel uncomfortable at times but that struck me a great deal but the idea is we have a collective enterprise where we try to find space for our fellow citizens to express thoughts to live according to their own conscience but that means a bill be different that the traces

the make for our own minds and we need to be able to say there is space for all of the views and expressions of. >> alone will tiny voice of dissent but they said it would protect the ratings so it shows that government cannot go there of free speech defect qualifier is with those decisions but it what was referenced the

constitution is only meaningful if it protects the speech that you like and then you consol around the country where there protect the and speech that they like it is only what you don't like. but it is protecting things that may not be in your self-interest but protecting the heather's who expresses those views. so you may be the of one of maturity does not want to hear so that is what that is about. >> instead of having a strictly narrow by historical definition of the bill of rights we have a

functional definition that included article one section nine and 10 talking about the 13th edward t. the best bids with the door concept but talk about the love press event research and an arms also be meeting of the quality of. >> right think that is happening just like the marriage equality cases of the supreme court that is an example of a renewed close look that justice brennan with the equal treatment of the of = is as much of a violation as anything else.

the larger quality case to be the most profound so there are all kinds of developments to required uh justices to figure out what they mean. >> the 14th amendment has its own program. [laughter] in those are definitely important questions with founding of us constitution.

and those don't address the of quality directly. to say that we have to look through that lens but i just wanted pdf to have all drippy evening. >> one more question. >> 84 the terrific conversation. >> to hope that the of bill of rights'' being in particular so it was dave harmonizing document. with the second amendment

but they are subject to a lot of disagreement. and to celebrate that agreement. and with the cause of concern. >> and the purpose that almost all americans could fight for the bill of rights that they have against their government they do not define all their activities or existence. so those are difficult issues so remember with the

structure of the constitution to society of which they will live. we make the rules. but we the people need to get to decide. and with a fundamental right. there are limits for those that set the rules. that is through the debate is. but these are tough questions have welcomed the debate. but the framers saw those rights they thought they

were god-given rights. you can believe they are inherent in that they do exist. with the limits of majority rule. that is a dead and make enterprise -- dynamic enterprise. >> no where in the constitution or another amendment will you find the phrase perception of in the sense but it is the absolute bedrock of our criminal justice system. part of what the of bill of rights did was rated discussion -- framed constitutional democracy and

we know that all not provide answers to all above questions and all of that ongoing dialogue, i think we make a more perfect union. in a civil and respectful way. >> as a practicing lawyer to involve the fourth amendment there is an article that somebody sent me in the british newspaper and him paraphrasing bette to be uniquely american of the concept of my rights.

and if we don't agree with the answers of louis r. as a uh people every individual has rights that they cannot step on. but the sense of parts of being an american is something very different mitt is of feature that fragile balance and that the constitution tries but that is absolutely a critical as what has allowed our constitution than others have his starkly -- historic

les. >> that is perfect conclusion with barely half of those amendments. so one can hope. and one particular thing with the d.c. circuit that issue that might be before the court to become sole impressed with the effort to that the judges and lawyers put into these questions with that sensitivity with that respectful approach

into cannot watch them judging. and thanks to those judges who came out tonight. and the way that we might ponder. [applause] >> thanks to come and speak at the national archives. i have no doubt the video will be used is an classrooms around the country and that is the great discussion.

[inaudible conversations]

[applause]

bob. >> alliance steve from uh committee of 10 relations it is up pleasure to welcome you all to our fourth speech celebrating the 50th anniversary at the national committee of u.s. generations we have then educating americans about china with the bilateral relationship to author the exchange's and informed

discussion with the trade representative's as well as national security advisor and to have a similar program like we did where we will interview chinese leaders many are alumni of the program. for the former secretary of state also national security adviser and with the foreign ministry shin and instrumental from of the

reestablishment of relations with china. he spent 45 years with that important bilateral relationship and we appreciate you being here because we know you have to be slightly jet lag after that. also recently we hope to hear more about that trump tower. we have been fortunate to have user from the board of directors for more than 12 years. today is the 20th anniversary of secretary albright nomination to be secretary of state under president clinton. [applause] having served four years as

u.s. ambassador to the u.n. u.n., she became the first woman to serve as secretary of state and at that time the highest-ranking woman ever in the united states government. i heroin to my three daughters, secretary albright play a leading role to china's succession of the wto to represent the united states at the 1997 transfer of sovereignty over hong kong. we were fortunate to have purser on the board of directors seven years. also to thank our sponsors the tightness center, mastercard for funding this program and especially the china center before providing this venue and for those not in person

today this morning was overcast. we were worried we would not have a spectacular view but the day turned into a bright blue day and we watched in incredible sunset and we hoped that was the u.s. china relations in the future. may be cloudy now but said he in the future. [applause] and to thank both secretary albright and kissinger to train us today. you have both contributed to world peace in ways to numerous to enumerate. if vice started to list all of your accomplishments we would not have time for any questions so thank you for being here and i will start

with a question for secretary kissinger. >> may enter rubbed how happy i am to be here with you. you mentioned today dr. kissinger was the first% to call me when i was named secretary of state he said madeleine you will do great you have taken away my wine unique characteristic to be an immigrant secretary of state. i said no. i don't have an accent laugh laugh. [applause] >> we will go back further them that 1971. that there was no contact between the united states and china 22 years. what made you go to china? what did you seek to

accomplish and what lessons can we apply to the relationship? and now you could write a book on and you have so keep that have five minutes. >> her / me say that madeline and died -- i and the other parties have been close friends have never looked at politics as partisan and whine of the strong elements is the us succession of the american presidents and chinese leaders that have followed of fundamental similar course intended 1971 we had

the attitude that we would improve relations with china now. specifically into the international system because that was a contradiction. but each country has its own set of problems the vietnam war, so it took awhile to establish contact it took about three years to establish contact in complicated ways.

but one of the major decisions there were constant clashes between the chinese san the soviets. and we would look at the map and come to the conclusion that russia was the attacker in these circumstances. so we have the problem of deciding that these two countries where should they be? and we decided it is not in the american interest in the

moves that culminated 1971. and in my first meeting so now, here we are and then and said what is so mysterious about china? i forget it was negative was but he said think about it. we hundred million of us and to in so that we ought to

learn of feet to others thinking and motivations and butter is applicable today? >> and with the carter

administration working with the national security council i was there with the normalization. and i watched wide had been in fact, an organized way to follow up on what dr. kissinger had done to proceed with normalizing the relationship. i was sitting aside the situation room constantly seeing different people go with and then all of a sudden wonderful moment came back with the chinese leader coming to the united states but we were determined to pursue the story to bring china into the system. i sat there with line a chinese counterpart because

we could never get them to participate of less it had something to do with interference or internal affairs. so i finally gave up ball to let him be strong. in the end to talk about more than of talking points so i do think that what none of the issues how to bring a normal trading relationship by having permit relations because basically we would

pull up the plant to see if it was growing and that was a great source of irritation for. to bring them into the of a dead buteo with be a adn to put them into the international system and it made that possible for some of the rules of trade international not just in a bilateral way. it is all part of the same story to see that china was respected and what part of of functioning international system and that was the view that president carter and president obama has had that we have to consider the number to be economy they have to be part of a functioning international system.

>> did it work? did that work for america at? >> i think there are questions but what i found interesting by the way we know of that any diplomat has a consistent and principal position. but uh bottom line is that there were times there were issues. they want to be seen as the world's largest developing country is hard to be the number two economy pencil talk about the largest developing countries so that is the argument. then there are specific cases. >> dr. kissinger do you

think the succession by china worked for a merca? >> yes i do. i think the fundamental issue has been they could pursuits' the objectives that it would never happen that we would have identical views on all issues. whether we could achieve parallel objectives. in the situation of that negotiation undoubtedly made equally be true.

by having china as part of the economic system is better than having a trade war with the united states and china but within that general proposition, i would hope improvements could be found and should be found and maybe even system mike discussions. but the fundamental objective, to be a member of the international system, when we first opened to china the chairman did not want - - chairmen now did not want negotiations it was less between the united states.

so to say this in that context of expanding exploding economic relationship and there is room for improvement but it was a good thing. >> i will come back to that but because we set at it, waterworld the trade which is the epicenter of of 9/11 tragedy and today we are celebrating their rebirth of the area that this is terrific what is the role of fighting terrorism in the u.s.-china relationship? >> i think clearly we are

threatened by a terrorism in a number of different ways and we have similar issues in in terms that there is something we're doing that is wrong. frankly i think the role is to share information but the question is what is information and how is it gathered? but there are ways to cooperate and reid of bank of piracy as much as terrorism, and there has been cooperation on gatt, the chinese have been very helpful on at and they have been very helpful comment to me the issue of terrorism is not how you deal with the end but prevented in the first place and those are the issues we can work on together and also you may think this is

pushing it but the fact they are participants in the u.s. peacekeeping operations, with the issue of stability, and the only problem those only groups that we think are terrorist but they don't think so but that isn't the only country with a disagreement but ultimately the civilized countries have to figure out how to share information. >> there are lovable son of terrorist -- levels of terrorist in countries and a terrorist attack based on

old international system. now the underlying tendency to create the universal caliphate that they would then be subjected with of manifestation, uh chinese do not have those same kind of issues that we have had in some of the country's in parts of china so we have at

least two common objectives. with uh terrorists around the world with in various countries and second, to create the international system which makes it more difficult for terrorists particularly do we have a common interest for the geographic territory like the sovereign states and that is why the evolution of some parts can be of grave consequence and then she

mentioned so in terms of those general objectives and how '02 apply those to be explored that has been considerable progress made. >> is there any evidence and is there any sense for china to work with north korea and every and -- iran to support isis'? have you heard of anything like this like working that

is inconceivable to me. >> i ran does not support isis in the world the faqs thises talked-about the elephant in the room secretary kissinger what did they say on friday? what message did you convey is the secret police those of much -- those of us watching will no. file was read from it but the security people took of memo. [laughter]

my view has been frequently published that the united states and china are the two countries whose countries and complex would make any solution very difficult so it is important for the united states to being transparent with each other with the strategy. we are both major countries in refuse to step on each

other's toes because of the magnitude but this situation that would arius -- arius to make racist that is no different than one day could not manage it so they have to try to design a way that they could cooperate by which people can work for the common objectives. but fundamentally it has been significant progress made with every administration. with every new

administration there is a concern maybe there is a different course. we but in the early clinton administration president clinton tried to deviate from the established pattern but within two years he realized that was based on our common interest that requires but i believe this

is needed no and i am hopeful the and will develop >> let me just say that i have told the chinese friends not to pay attention to what the candidates say about them. governor clinton said the butchers of beijing but once president-elect he took another approach. i do think the chinese has gotten used to some of the things the elected officials have said, but i am concerned because in some ways raising questions of the things that henry did with the shanghai communique

and the china policy. so what president clinton and was saying that those that were arrested your modem it down by the tanks that americans always whenever i've met with the chinese with those issues to do with it to that -- tibet i had no idea what have been daily know what i read about basically questioning the issue of our relationships with taiwan. as part of the normalization we had the taiwan relations act as part of the agreement but what was the intent of

the phone call? >> dr. kissinger did president elect ask you to go to china? did he ask you to deliver a message? >> [laughter] i of course, was aware of and is thinking and he knew that i was going but not as a presidential emissary but as a trap i had planned many months earlier. >> were you surprised that he accepted a call? do you think that is in the interest of sound and productive u.s. china relations?