book available for a 95 plus shipping and handling at cspan.org. for additional resources you can go to the constitution center interactive constitution. >> c-span where history unfolds daily. in 1979, cspan was created as a public service by americans cable television company. today we continue to bring you unfiltered coverage of congress, the white house, the supreme court and public policy events in washington d.c. and around the country. c-span is brought to you by your cable or satellite provider. >> up next, a preview of the second season of landmark cases, historic supreme court decisions. the cspan series is the human

stories behind the supreme court most historic ruling. >> welcome to the constitution center. and the president of this wonderful institution which is the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. tearful. that is so inspiring. wonderful live c-span audience. you can see the great members of constitution center by people around the country are inspired by this mission of constitutional education and believe it is important for citizens to educate themselves so american democracy can thrive and survive. in this mission we are so excited to be partners with c-span. we have a wonderful collaboration a few years ago, landmark cases which described the human stories behind some

of the most important supreme court cases of all time. that was inspired by a comment that justice ginsburg made at the constitution center event a few years ago where she said how inspiring it would be to hear those human stories so people can relate to the cases and understand the constitutional principles behind them. that series was such a success that literally by popular demand we are launching tonight landmark cases season two. hooray. we have a series of new cases and we are going to talk about the human stories and to describe them, we have a dream team of respondents. i will introduce them in the second but first i have to put put in a plug for upcoming constitution center events, last week we had this wonderful event with justice ginsburg, she came back and talked about gender equality

in the future the constitution, we have coming up the following events as part of our america's town hall program of which this program is one, coming up later this month we have dean heather gergen, how the right and left can unite around federalism, and on march 15, they will come to discuss renewing the founders promise and on march 20, i'm so excited, this just arrived in the mail, the hard copy of this thrilling new book about an underappreciated constitutional hero william howard taft. justice ginsburg will interview me about our most judicial president and presidential chief justice and a man who lost 75 pounds on a paleo diet after he left his unwanted presidency. those are the exciting events coming up and out is my great pleasure to introduce my colleague, friend, collaborator, visionary head of c-span, susan.

[applause] >> note to self, never followed jeff rosen at the podium. happy presidents' day. we are going to talk about the supreme court tonight on presidents' day but what really could be more fitting than one of the most important responsibilities that presidents have during their term in office to select judicial appointees to the supreme court. it's very appropriate for this very special day. i want to echo jeff's comments about our great working relationship, as long as there's been a national constitution center it is educational and nonpartisan mission, so much mirror c-span's nearly 40-year-old educational nonpartisan public affairs charter and so it was a wonderful collaboration. in fact, during the 2016 conventions, we set up our studio and have a beautiful view of independence hall. i'm in native of philadelphia so it's nice to be home.

as jeff rosen said, they were kind enough to invite my colleagues and i to the national constitution center in washington a few years ago. the story that ruth bader ginsburg told was a loving virginia and how compelling it was to think about them in their bedroom and the police breaking in because interracial marrie marriage was outlawed. that poignant human story just resonated with us and we came back to our office and said, why do we take on the cases that have dramatic human stories. working with the folks at the constitution center in their great scholarship here we collaborated with a really great group on our first set of cases. it's hard to know only have a hit because we don't have any ratings but we had a lot of good feedback and the programs are interactive so we had a lot of people phoning in and

sending tweets and facebook messages and we liked it. that was the best part. what can be better when you have a job you're learning something, you work with great people and you're getting a lot of positive feedback. it hit on all of those buttons. when the election was historica, this was just a natural for us. we have we are starting all the way back in 1819 with mcculloch versus maryland and we will end up with 1978 case when alan baci challenged affirmative action in the state of california and we chose cases that are not just historically interesting but relevant to our live today. will be looking at cases that deal with civil rights and free speech, issues with the right to privacy, things that

we are all talking about and debating in our society. you will learn a bit of 200 years of judicial history but also think about how these cases continue to impact our society today. i just want to say quick note about my colleagues because this is a lot of work for a summer of busy covering the calcongress that's been keeping us quite active. a few of us has taken us on as a bit of a labor of love. could you wave your hand so people know who you are? our executive producer for special projects, ben o'connell will be producing the series for us, the senior producer. nate hurst is next to him and he's been working with us on a week to week basis to line up all the gas. we have two folks at home in washington. randy is one of our field crew people and we are sending them out, this goes to the people

story. he is going on location to personal stories, the hometowns of where these cases took place and getting video, visiting chinatown and going to des moines. you'll see the places where these take place. the series starts next wednesday night. it will be live for 90 minutes and we'll go for 12 weeks. each one gets its own program. we're hoping so much to have you in our audience, phoning with questions or send us a facebook, and make it interactive. just as tonight, your questions really make the discussion. thanks for helping us kick it off tonight. thank you for your enthusiasm and being here. i will turn it over. thank you. [applause] >> thank you so much susan. susan is a masterful moderator

and it's such a pleasure to learn with her about these incredible cases. ladies in german, you are in for a treat. i hope this will be a concentrated constitutional fee feet, an hour where we have two of america's leading experts on the constitution from different perspectives to help take us through these cases, to learn together and spread the light. we have america's teacher of the constitution. he was my teacher of the constitution, my first teacher in law school and he has spread his wisdom and knowledge to me and to thousands and hundreds of thousands of others by means of wonderful technologies, he is the author of many books including the constitution today, timeless lessons for the issue of our era, he is studying political science at yell and he is the leading constitutional methodology that some have called new

textualism or original is in for liberals that argues that the text and history of the constitution honestly interpreted should lead to results of different political balances. joining him in this incredible discussion is michael s paulson. he is distinguished chair and professor of law at the university of st. thomas, author of numerous books including the constitution an introduction which i have here which justice samuel alito called solid, reliable, interesting, informative and a lively tour of the constitution. he approaches things, according to justice alito from a more originalist perspective, more conservative point of view and i just learned in the green room that they were high law school roommates.

what do you imagine that these two brilliant scholars of the constitution did in law school? i wasn't surprised to learn they debated the constitution so heatedly they would follow each other into the communal restrooms and they were brushing their teeth and mike what argue that he was a wild ride living constitutional and he called him a rigid originalist and i hope your teeth cap rushed and i'm sure the debate was absolutely fascinating. we will continue it tonight. let us jump in. we have to use every moment of this precious time. we will begin with mcculloch and maryland, 1819. i need my constitutional reading glasses and i think we need the text of article one, i haven't tried it. wonderful. the congress shall have power to make all laws necessary and proper for carrying into

execution the foregoing power and all other powers vested by this constitution in the government of the united states. the second bank of the u.s. created here in philadelphia, there branches a bunch of cities including baltimore. in 1818 the maryland legislature passes a bill taxing out-of-state banks and the question is, does congress have the authority to establish the bank, did maryland law unconstitutionally interfere with congressional powers. the important opinions of the court has many memorable lines including the power to tax involve the power to destroy and unlike the articles of confederation, the tenth amendment doesn't include the word expressly and this is evidence of the constitution not limiting congress to do only those things listed in article one. you have called it the most

central case in our constitutional canon and you have said i teach my students mcculloch before because i think it's a better example of legal craft. what is it so important and what you want our audience to know. >> constitutional law isn't just about what the rules are. what congress can do, what congress can do, what the president can and can't do. what questions are important, even more important, how do you do constitutional, how do you make a constitutional argument paired what counts. only judicial precedent? what about text or history, the original intent, the structure of the constitution. it is a beautiful example of all the different tools and techniques of proper constitutional analysis.

a holistic analysis been brought to bear so if i want to teach my students more than anything else, how too do constitutional law, how to make arguments, mcculloch is a great place to start. >> wow. mike, you also have high praise for mcculloch and in this book, the constitution, an introduction, you say that it has relevance for the court's decision to uphold the affordable care act. tell us about how it has come to stand for broad interpretation of national power which has prevailed although jackson's veto stands. >> you wouldn't think that a case about taxing a bank would be such exciting but it is. this controversy goes to the root of how broad the national government's powers are to legislate for the country and it goes back for hamilton to jefferson. i think i've seen this debate re-created in the musical hamilton. i won't do any wrap but john

marshall, in upholding the constitutionality of the bank of the united states basically plagiarizes arguments alexander hamilton to george washington to convince him that the powers granted to congress should be construed for all their worth. the idea, the necessary and proper clause means not that there are powers beyond the constitution but that the constitution grants congress the rod sphere of powers. the power to create a national bank isn't specifically enumerated but there are powers to regulate commerce and commercial affairs and banking, bankruptcy, and so the creation of a bank of the united states was necessary and proper for carrying into execution the other broad power. he's right, it really is foundational to nearly everything that congress has done. many people think congress has gone too far, but all of

today's controversies how broad congress powers are really go back to the context of this. there's another aspect which is the one where you hear this line the power to tax is the power to destroy. the state was taxing the operations of the bank the united states. if the bank, if federal interests is constitutional, then a state can't interfere with it under the supremacy clause of the constitution. national law beats inconsistent state law and i think it's a wonderful case that's foundational for not only how broad congress powers are, but the relationship between the states and national government. in fact, you can see the roots of lincoln's arguments against succession in the argument of why it is constitutional for the states to interfere with the operations of the nation.

>> i'm so tempted to take another round on the sprint i just want to make sure we get through all 12 pieces, but i'm going to resist the temptation and we will leave time for questions when we come back. okay. it's time for another amendment and a really important case. this is a big one. ladies and gentlemen, the 14th amendment to the constitution turns 150 this july. it is the cornerstone of the constitutional achievement of the civil war after lincoln promised a new birth of freedom at gettysburg. it says, let's read it and think about each of these, no state shall make or enforce any law which should abridge the privileges or immunities of the citizens of the united states, nor shall any state deprive any person of life, liberty or property without due process of law nor deny any person within its jurisdiction the equal protection of the law. the case we're talking about

now is the civil rights case, 1883, the civil war is over, it's time for reconstruction and the centerpiece of the achievement is the civil rights act of 1875. charles sumner, the author of the bill is so committed to this bill which will for bid discrimination in places of public accommodation that on his deathbed he says my bill, my bill, don't let them forget my bill. the bill passes and yet just a few years later in 1883, the supreme court strikes it down and hold it unconstitutionally exceeding congress authority under the 14th amendment. this is an amazing human story in this case that i'm sure we will tell in the series but justice john marshall who writes a famous dissent has riders block. he doesn't know what to say pretty so upset by this evisceration and his wife finds that the supreme court, this sober. [inaudible] where chief justice wrote this

got decision saying african-americans have no rights which white people are bound to respect, the case that the amendment was designed to repudiate. she puts on helen's desk, she comes home from church and realizes it's him and suddenly as if overcome by spirit, he writes the spectacular dissent and predicts that someday the decision will be viewed in infamy. that's the civil right cases. there's so much to say about this but i want the audience to understand. by what grounds did they pass this and by what brown's was his dissent. i think a better channel john

marshall because what did he say in the mcculloch? congress should have broad power. the constitution doesn't say bank or air force or individual mandate, but congress should have broad power when actually implementing the great purposes for which the constitution was established. national security above all and the bank is useful for national security, banks are very helpful to win wars and marshall mentions that, now after the civil war, the federal government basically gives him a new confidence, a new focus and says civil rights, the 13th amendment, and slave slavery and congress shall have power. the language used is congress shall have power to pass appropriate legislation. the word appropriate is actually taken from matt versus marilyn so the framers of the 13th amendment ending

slavery want congress have broad power to end slavery. the framers of the 14th mmi have this language but they also have language at the end of the 14th amendment think congress should have rod power so john marshall says what was the basic problem that generated the reconstruction amendment, it was racism in america and congress has broad power to try to end racism and the sentence that we have up on the screen says no state shall, but right before that sentence it is one more pretty important, all persons born or naturalized in the united states are subject to the jurisdiction thereof are citizens of the united states in the state they reside. anyone born in the united states is born and equal citizen. we are all born equal. we are all created equal. that's linked to this idea at gettysburg, channeling jefferson and for all born

equal and congress have power to enforce this, harlan said congress should be able to prohibit race discrimination in accommodations, hotels, theaters so he says let's read congressional power broadly in the spirit of john marshall and mcculloch, reading and amendment that actually borrowed language, the word appropriate. what does the majority say in response? a public accommodation, these are owned by private persons, hotels, theaters, railroads, not the government, it says no state shall and congress doesn't have broad power to regulate nonstate actors. remember this in 14 doesn't just say no state shall, as is everyone's born a citizen, john marshall told us to construe federal power broadly but the court, 821, rejects

that and that's why in my lifetime and a lifetime of some of you, congress needed to re- path the civil rights act of 1875 basically becomes the civil rights act of 1964, lyndon johnson helps push through in honor of mark king and john kennedy and this time the supreme court upholder and the 1960s. >> they just described so well how the citizenship clause of the 14th amendment doesn't have a state action requirement but he also said that theaters in public accommodations are essentially having the nature of private entities even though there i really owned. do conservatives believe that the majority was right? >> well, i don't know that i can speak for all conservatives because i actually think the civil-rights cases were wrongly decided. i'm actually with a keel on that result.

here's the argument. he captured this pre-well. the 14th amendment is a restriction on what state governments can do. the 13th amendment prohibited slavery and could reach private conduct in one of the arguments for sustaining the civil rights case, it the discrimination laws was that was enforcing the prohibition on slavery and i think the supreme court rightly said that is going beyond prohibiting, the discrimination is something different from slavery and the power to outlaw slavery and enforce the ban on slavery doesn't get you all the way. i think the argument in's, motels, railroads where public accommodations can therefore part of the government is wrong. i think that most, the civil rights cases is actually correctly the origin of the

idea that the 14th amendment is a restriction of what state governments can do and it has to be something that really is attributable to the actions of the state. here's where i would end up disagreeing with the result of the supreme court. congress has a power to pass laws enforcing the prohibition of states, denying equal protection. there is a sense in which the state's failure to protect equal rights is an affirmative ground on which congress could prohibit the failure. congress could step in and remedy, it could pick up where the states have dropped off and i think that's the most persuasive reason for thinking the majority of opinions of civil rights cases is actually wrong. i like the point that basically the civil rights act of 1964 is the civil rights act of 1875, revisited or reloaded as it were. it's interesting that the

power on which the civil rights act of 1964 was sustained was the commerce power. that was necessary and proper to carry into effect the commerce power which is an argument they rejected and it could not have been plausible in 1883. it's interesting that the enforcement of civil rights ultimately rests on the power of congress to regulate and not the power to enforce equal protection of the law. quite an irony. >> it is indeed. thank you for relating the commerce clause of article one and the 14th amendment. our nee next case, this is a mere three years after the civil rights case, generally this is not a time in which the cause of racial equality has many victories before the

court, but it is an exception. it strikes down laws into closing laundries that are owned by chinese immigrants in san francisco. it is a unanimous decision and it's a case where there's lots of migration by chinese people to the u.s. during the gold rush, the city of san francisco wants to close down laundries and passes this law which gives a board total discretion over who gets to issue laundries and although they have 89% of the lobbyists, they don't get a single permit and the supreme court says this is an unequal enforcement of the law which violates equal protection cause despite the laws impartial wording and the famous words are, if the law is applied by public authorities with an evil eye

and unable hand to make unjust and illegal discrimination between persons in similar circumstances, the denial of equal justice is still within the prohibition of the constitution and how on earth did people decide if equality wins during this period was so few victories. >> one thing i would like everyone to notice because we have this language up on the screen is that privilege and immunities are protections for citizens. what are basic privileges? the really fundamental and important and i would say free speech, free press, free exercise of religion, stuff in the bill of rights, but the stuff in the bill of rights you might say, when that include due process. yes it would. then why do they say due process but here's why. if you look carefully, due process protects not just citizens but persons. that would be aliens president trump emma i mean my fellow citizens here.

>> nonpartisan. >> this was an amendment not just about protecting citizens but protecting aliens rates. in san francisco, some of the folks were not u.s. citizens, they were immigrants from china and we today think what equal protection is is the law itself where whites are treated differently from blacks are men's and women and we read it differently. you're entitled to the protection of equal law and that's key but the equal protection of the law, in part is whatever laws do exist have to be enforced in an evenhanded way in this law

wasn't. on its face. it didn't say nothing about race but in the application the government was treating people with yellow skin different than people with weight and different from other types and that's this language of evil eye and unable hand. they were denied equal protection of law because it was an evenhanded law on the space but it was being applied in a completely uneven, unequal way. >> any dispute about the correctness and what is the significance today if even a formally neutral law may be unconstitutional if it's affected by the discriminatory intent. >> more no disagreement at all. this is a case, oddly, about architecture. the san francisco ordinance prohibited or required a special license if you operated a laundry in a wooden

building. the problem was in san francisco, at the time, before the turn-of-the-century, almost all the buildings were wooden. the overwhelming number of chinese operated laundries were in wooden laundries and the law was neutral on its space but the problem was that it was enforced in a blatantly discriminatory manner that basically only one chinese laundry out of hundreds was granted permission to continue to operate. they were fine ten dollars, refused to pay the fine and then was in prison which is how it got up to the supreme court. i love the principle that a law can be neutral on its face but if it's just naturally enforced, that can render an

otherwise seemingly valid law unconstitutional. >> it's now time for 1896 versus ferguson, who has heard of this. [laughter] we know this infamous decision which upheld a law which required separate but equal railroad cars and if the civil rights cases represented the end of the high point of reconstruction, this issues in the jim crow era when southern states and others really begin to mandate a kind of american apartheid and the case is so important because it was overturned in brown versus board of education where thurgood marshall read justice john marshall dissenting opinion before he argued plessy versus ferguson and john marshall dissenting opinion has come to be celebrated as one of the

greatest prophetic statements of liberty and equality and constitutional history. i will read from it because it is jarring at the beginning. he begins by making what would strike us as nativists comments about chinese-americans and he shares some of the anti- immigrant bias and he goes on to say something about white people sing the white race deems itself to be the dominant race in this country so it is in terms of prestige and achievements and education and wealth and power so i doubt if it will not continue to be if it remains true to its great heritage. a rather jarring beginning and then he goes on to say but in view of the constitution, in the eye of the law, there is in this country no superior dominant ruling class of citizens. there is no cast here and here are the famous words, our

constitution is colorblind and neither knows no tolerates classes among citizens in respect of civil rights, all citizens are equal by the law. help us unpack this jarring combination of nativism and white pride with declaration of equal quality when it comes to civil rights but not political and social rights. let's connect the dots. all citizens are equal before the law. what language is he channeling? actually not equal protection which is about first amendment but the missing sons that everyone born in america is born a citizen and therefore an equal citizen. that first sentence which overruled is what he's channeling, he is channeling john marshall because remember , he thought the civil rights cases of 1883 were wrongly

decided. he was the great dissenter. he thought congress could prohibit race discrimination in the railroads. if the supreme court has upheld that law, it would be a simple preemption case just as mike told you before when the federal government says one thing, states can't do the other thing. if they create a bank they can't destroy it. if the federal government says no race discrimination of railroads, this is a state law that was undermining that so if they had simply been followed in the civil rights case of 1883, the congressional law would have been in place, this is by singing easy and congress is in effect at. they are ready said no race dissemination and railroads but they lost those cases but he was channeling john marshall saying congress should be allowed to prohibit this and who was he anticipating, thurgood marshall who reads plessy versus ferguson and his great dissent which in effect becomes law in brown versus

board of education and i think it may even be in this case where he is, he does use the well that roger used, it's like the equivalent of babe ruth called shots. he's alone in dissent. he says i predict this case will come to be seen as another dread scott. think about the audacity of someone alone in dissent to say it and to prove right by history. we do think today that his dissent is really the right approach, but if you're with him, and i hope you all are, then i think we should be with him as mike and i are in the civil rights cases of 1883 and today supreme court cites the civil rights cases with 1883,

the strong approval and i think, shame on them. >> mike, i want our audience to understand what justice brown majority opinion. >> that was his name, justice brown, they are deep and he said if anyone objects to separate but equal, that's just the fault of african-americans. it's nothing inherent in the segregation itself and with the power of justice harlan's response to everyone knows what the real purpose of segregation was mainly to humiliate afghan americans, and i'll just ask you, was he right which mark are there conservatives or originalists who think that on original is grounds that the majority was right. >> he was clearly right and plessy is one of the most clearly wrong cases ever to be decided by the supreme court.

it is instructive that it's 8 - 1 and it's possible for a supreme court decision to have enormous public support and enormous majority support of the justices and still be up flagrantly miss led understanding of the constitution. one of the lessons in 1896, the civil war ends in 1865 and during the reconstruction period, the early interpretations of the 14th amendment is that the law must be the same for the black and white. i think that wine comes from a case called stroud or versus west virginia. there can be no separation, distinction, discrimination between the races as a matter of law. what is instructive is that by the 1890s, that idea is lost to the supreme court and here i might provoke an angry response.

because the supreme court feels that the meaning of the words of the constitution must change with the social mores of the time, that's a very appealing notion, but look how the social mores changed. much of the reasoning of justice brown opinion is that we must read the constitution to be socially reasonable and into with the times and the tune of the times had become segregationist. it takes brown versus board of education 70 some years later to overrule that precedent on the basis of the fact that we all know that the law should be the same for everyone. i think the lesson of brown versus board of education, the ultimate lesson is same as the good line in justice harlan's dissent which is that our constitution is colorblind. anytime the government categorizes, distinguishes or separates on the basis of race, that should be regarded

as unconstitutional. you'll want to hear to what the civil war era adopted and that was intended to be. [inaudible] >> we will return to that in just a bit. : the case that became the foundation for roe versus wade. so it's the late 1960s and connecticut is the only state in the nation that's still bands the use of contraceptives for married

couples. you can learn about the stories behind this case in david gero's superb book about the rights of privacy where he describes interplay between pt barnum and katharine hepburn's mother and michelle griswold is the executive director of planned parenthood in connecticut, we will learn all about that but the constitutional question is does the constitution protect the right of marital privacy against restrictions on a couple's ability to be consul? you can take a law class about griswold but there are at least three basic arguments for striking down the law. justice william o douglas is a very freewheeling opinion for the majority. it's famous for its invocation of the numbers formed by animations in the various different parts of the constitution which he says coalesced into a free-floating right to privacy. i heard a chuckle in the

audience and there was a chuckle as well when they read douglas's draft and it seems so loosey-goosey and justice hugo black said the right of married couples to associate is new to me, basically. douglas was being too freewheeling and conflating various parts of privacy in the second, third, fourth, all the various amendment, fifth amendment and creating a free-floating right of privacy. justice john marshall harlan the second has a narrower opinion. >> grandson of the first. >> and a great born-again conservative says that there's a right of spatial privacy in the home. perhaps rooted in the fourth amendment and it might be intrusive to enforce these laws, you have to break in to that home in ways that might violate the spirit and there's also justice harlan's opinion that this law is so unusual. it's the only one of its kind

that the traditions of the country have evolved in a way that has recognized marital privacy as a right under the due process of the 14th amendment so that's my quick summary and you will do much better, unpack the various reasons where you find most responsive or if you have a different spot to the case. >> dems fighting words for some folks who insist that actually, we at the constitution doesn't quite give all. john marshall, some people say we must never forget the constitution we are expounding. they say some people talk about how it evolves and marshall didn't believe in evolution. he had written the origin of species in the beagle in 1819, john marshall believed animals entered the ark 2 x 2 so he's not an evolutionist and night says we shouldn't be.

i'm halfway in between. here's the thought. the constitution prohibits something, if there's a right in the constitution then we have to stick by that. if it says equal, we should always do equal even if social mores change. it says equal and gosh darn it segregation isn't equal. but the constitution also says i don't think we should ever evolve away from the core rights but the constitution in the ninth amendment when it comes to the federal government and the privileges or the immunities clause when it comes to the fourth amendment gestures towards enumerated rights. there may be more rights, nevertheless the more, the question is how do you find those extra ones? those additional ones. equal means equal so the segregation wasn't equal so it's invalidated but if there are more rights, how do we find them? john marshall harlan, the

grandson did have an idea. we can look at state practices, state constitutions and on the griswold, no state other than my home state of connecticut had made it a crime for married couples to use contraception in the home, though that an unenumerated right. we look to separation of independence and state constitutions to find more rights rather than less and the person by the way who first taught me that the key passage, was john marshall harlan the younger. his statement that no state other than connecticut did this, and that's why it's a clear right. an article in the new republic by one of my former humans named jeff rosen. [laughter] [applause] >> it was you who inspired me to date into the history of the amendment and come up with the principal means of

identifying which rights are unenumerated. simply saying there are some rights that are predicted even though they are not written down. that's why it's so important as c-span viewers that you learn about the methodologies of constitutional interpretation and decide which one you find most persuasive. mike griswold has been criticized by conservatives from robert bork and it should be treated as if it hadn't want to supreme court nominees until chief justice john roberts who said it was correct and justice alito said it was correct so i need you to tell our audience, do you think griswold is correct and which approach do you think is correct or was it wrong? >> this is going to keep me from being concerned with the supreme court. i think griswold is wrongly decided. one of the things i tried to get my students to proposes do not read the constitution

through the lens of their political bias. i tried to get them to come to the realization that the constitution doesn't grant a right to everything you think would be a good idea and doesn't prohibit everything bad. the text says ineffective meaning, the bedrock of the foundation of rights. griswold is a classic case of a result seeking a persuasive reason and not finding it. in justice douglas opinion, hecites the first amendment, freedom of speech . the right to contraception. that's stretching things. he claims the third amendment right to not have soldiers cornered in your home, that supports it too. the fourth amendment prohibition against unreasonable searches and seizures and he keeps going. the fifth amendment, the ninth amendment which is a simple rule that the

existence of a bill of rights doesn't take awayyour state law rights. it sort of extrapolates to the idea that this would be a really good right . now, one of the standard lawyer tricks that darrell taught is the text doesn't support you, you abstract from the text either principle. and then you interpret the principal and you read it back into the text in order to produce the results you like. if lawyers doing that hold onto your wallet or purse because they're trying to get your pocketbook. i think as a descriptive matter, nobody nominated to the supreme court, conservative, liberal, would say that griswold is wrongly decided. i have a decent job as yet. but it is interesting how the popularity of the result has driven and distorted our approach to constitutional

reasoning. most people, 99 percent, we support the result and griswold versus connecticut. but i think jess is right, that becomes a critical prop for the creation of a broad ranging right to privacy. even to create an abortion right and at that point people say wait a minute. where did this right to abortion come from? the first amendment? how does privacy sustain a constitutional right to abortion? by the time you get to roe versus wade in 1973, you look back griswold in 1965 and say this is probably where constitutional reasoning took a turn decisively towards a policy driven as opposed to a text driven approach to constitutional law. >> much more to say about griswold and thank you for your courage in embracing a result that as you say, no no nominee is willing to do today and ladies and gentlemen, learn about those methodologies. so that you can distinguish

between the douglas approach, and focus on the fourth amendment and the idea that certain outlier laws might be struck down. that's an approach called yesterday. a fancy word that we calibrate in law school that says that when some books and laws are on the books and they are total outliers, and the history and traditions the ball in a way that means they should be struck down or maintain the possibility that mike is right and griswold was simply back constitutional law. from contraception we now turn to the death penalty and we are going to talk about the case called greg versus georgia from 1976. the story of the death penalty and before the supreme court, it's such a dramatic one because the supreme court moves within the space of less than a decade from holding in the

firm in georgia case in 1972 that the death penalty is categorically unconstitutional to just a few years later, early because of the lack last against that decision holding with greg at the georgia death penalty statute is constitutional and is not cruel or unusual punishment under the eighth amendment. akhil, you write about the firm in case in america's unwritten constitution and you say it's an illustrious state study in an actual executions dropped to zero and the courts seem to hold the death penalty unconstitutional but congress in 35 states and the court responded in greg by holding the death penalty.tell us more about that and wasn't right for the court if so apparently sponsored to the winds of public change. >> connect the dot, i think griswold is right. to grow is very problematic. here's one. in griswold there was one state, weird outlier state

that made the crime for married people to use contraception and the court struck down an on law that was out of sync with national norms which help generate an idea of what's fundamentally american. that was what i learned from hello, the court struck down the exigent laws in about 48 of 50 states, 48 or so of the state were non-rogue compliance. only new york of all the states actually metro standards the one case, one law, another case all the laws are unconstitutional and if you're doing that you'd better begin to show something legally in the constitution. now, let's think of the death penalty. the constitution uses a word unusual, cruel and unusual punishment. that might be an invitation to count. at the time of the founding it's not unusual to put pickpockets todeath . as overtime, in the state

that seems a bit extreme at a certain point, putting these markets to death becomes unusual and therefore may be cruel or unusual and therefore may be unconstitutional. in 1972there was a year in which no one was executed in america. now, people were convicted of death penalty offenses , lots of people on death row but no one was executed and the court thought we are civilized, now it's become unusual. we hold that it's unconstitutional and that was 1973. one of the reasons no one was being executed is because the courts made it very difficult to impose these capital punishment and the american people weren't quite there and they pushed back tremendously after the case in 1972 with a whole round of new capital punishment laws and the court did backtrack in 1976 but i think positively because the point is you look at actual state practices have a certain

practice, genuinely unusual. once a whole bunch of states recently, not a long time ago but very recently passed a new death penalty statute, that new information and evidence about a national ideas about what's fundamental or not. so counting is actually a way of sometimes thinking about two things, one unenumerated rights. if it's something in the constitution, you enforce it whether it's popular or not. it's separate not equal so it's unconstitutional. but it's not an enumerated right. there are enumerated rights and we can look at states practice on that and sometimes the text of the constitution itself may invite us to look at actual practice, a word like unusual. maybe a word like reasonable might invite recourse to social norms but anyway, the

end of it when my official question which goes back to your law school debate with neil. can the constitution evolve when it comes to the eighth amendment? justice scalia said he'd like and it might be appropriate to look at state constitutions and look at whether state have come to recognize the practice is unconstitutional today that wasn't at the time of the framing. is there any state vote counting is appropriate to the court between greg and furman or does the meaning of the eighth amendment remain unchanged? >> that's a great question and a very hard question. if you are a good, faithful original meaning constitution interpreter, you recognize there are some provisions of the constitution that have a relatively clear determinate meeting. the president has to be 35 years of age. 35 means probably 35.

there are other provisions of the constitution that appear faithful to the original meaning, the original meaning as a ring might articulate standards as opposed to a strict rule. i think it's an interesting question and i'm not an expert on the eighth amendment but it's an interesting question whether cruel and unusual punishment was a term of art that had a limited specific meaning. i've read good arguments that if it's a prohibition on cruel innovations, that was the understanding.but if you think that cruel and unusual means that it is an unusual penalty today, then i think there is room consistent with the original meeting for a practice to have become unusual what wasn't unusual before. i recoiled a little bit from the court in 1972 counting heads in one direction and in 1976 counting a social backlash and changing the interpretation of the

constitution. there's nothing unsettling about a finger to the wind constitutional, the supreme court doesfollow the election returns .still, that wouldn't be a possibility i would exclude for a provision to the explicitly standards. i think the framers in adopting a constitutional provision actually intended were meant for that provision to create some running room for different interpretations. and i think it is conservative, and faithful to the constitution to afford that running room difference. >> thank you for that. affirmative action. have you been paying attention, ladies and gentlemen? contraception, death penalty and now it's time for affirmative action. what constitutional law is crucial in explaining the study and the case were going to talk about is california versus body. his 1978 and allen body, sued

the university of california after he denied permission to the medical school after discovering the school reserved for people of color. he charged reverse discrimination and the question is this a violation of the 14th amendment, equal protection clause and the civil rights act of 1964 which has a deal said earlier vindicates the promise of civil rights act of 1875 and forbids discrimination on the basis of race. >> there's no single majority opinion, four of the justices say any racial quota system violates the civil rights act of 1964. the dissenters they that the use of race is okay in higher education. as long as it's used rather than to stigmatize them. the votes cast by justice lewis powell who says that rigid racial quotas are a

violation of the equal protection clause, using race as a plus factor may be permissible because intellectuals adversity and especially in the university arena is a permissible bowl under the first amendment and seeking race into account as harvard college did was permissible. >>. >> there was a mild opinion, who if anyone was right and if you are writing body, what grounds for holding affirmative action? >> i used to when i was young, i make fun of justice powell. pluses are okay, who does and of course people in the long run, these classes approximate quotas. just like when i was 20 years old, i use to probably mouth off about my father or something.now that i've gotten older, my dad's gotten a lot smarter and i feel that way about justice powell. he's gottena lot smarter.

this was or maybe the sweet spot . we had a very difficult, what does it mean for a system to be equal against the backdrop of historically unequal for so long? slavery and its consequences? it's an opinion that introduced really in a big way into the national lexicon this idea of diversity which can mean also to things but it's powell's opinion that really in just, that said, maybe using race to integrate is the difference then using race to segregate. maybe using race to make sure that our great national university look like america. , not the same thing as using race to keep people who historically have an underclass down and out. that's the argument we may, if you work and what to say affirmative action is okay,

and enter the framers of the reconstruction amendments it's a little unclear what that means 100 years later when we're dealing with people, even if they thought it was okay todo affirmative action, they were dealing with real slaves . whether that's true, 100 years later. so it's very complicated this issue. had asked me if i were writing opinions, back when i wrote a piece with a then student in the newrepublic . and you were editing i think in the republic up back then. >> i didn't know. >> but the fellow i cowrote it was, that's a fellow named neil santiago, brilliant student of mine. introduced him to jeff and now just brother-in-law. if you want to read a little bit more about that, neil and i wrote a piece a little bit

later called the baci state which we argued that maybe race constitutes affirmative action was okay at least for a while. at least if very limited, that was more than 20 years ago. it's a toxic business, this taking race into account and brother paulsonwill maybe have more things to say about that . so stay tuned, see that episode because that really is an important issue in current america. >> we are very eager for your response but i want to ask you this. there's both majority and dissenting opinions, print affirmative action cases, original assessments like justice thomas and others cite the language from justice harlan that you said earlier, our constitution is colorblind and neither knows nor tolerates class. and it may have that proposition that any classification on the basis of race and affirmative action is unconstitutional but their critics say they're

not being originalist because harlan didn't say that all racial classifications are unconstitutional, only in regard to civil rights are constitutional is colorblind and then they then note that the framers of the constitution did not think the right to go to public schools was a civil right, they said so but found brown versus board of education was wrong and for that reason it is bad originalist them, these critics say to invoke this language in the affirmative action case. >> i was going to start out by saying that akil was smarter in his 20s. we actually had it right that the law school, i think the principle of the constitution of colorblindness, that government may not regulate or classify or discriminate or distinguish on the base of race ever. it's a understanding. there are instances in which that principle was applied but the principle is the same i think that if you stick

with the principle of justice harlan, it's the right field. people disagree on affirmative action but what i think is fascinating about the case is how created in 30 or 40 years of confusion, just your short summary, for justices say colorblind. right? you cannot set aside slots in a medical school admissions class on the basis of race. that is a principal that is, that sounds an awful lot like segregation. and the strongest justice today who put that positionis justice thomas, an american justice on the supreme court so for justices are pure colorblind . for justices adopt their version of akil. which says that you can about affirmative action, but your first rover versus corrugation is radically different from the wrecked nation against minorities. and you can deal with all of

this. being explicitly raising quotas. the one justice in the middle, justice powell says no, borders are unconstitutional but a bonus for a diversity a+ is okay. i think akhil in his 20s was right that a bonus if meaningful is a small quotas and it's a smaller infringement to the fame principle. a really interesting thing is that eight justices agree that the one answer that can't be right is the answer in the middle because all it will do is produce conviction on principle. i think we seen that for about 40 years. >> they still cannot agree as to whether or not the principles race bound or that you can do preferences on the basis of race and come up with these decisions in the middle that say this is too much, this is too much, this

is too much. this is okay and this isn't and it's total quagmire. >> without settling that quagmire, we will now turn to an intellectual arabesque and turn effortlessly to thefirst amendment, if i can find my clicker . and even if i turn it, read the question. >> congress shall make no law respecting an establishmentof religion or prohibiting the free exercise thereof . or abridging the freedom of speech or of the press. or the right of the people to peaceably assemble and to petition the government for a redress of grievances. perhaps there's no modern case that better encapsulates our modern first amendment traditions that our next case, brandenburg versus ohio, cited in 1969. this is an astonishing case which reminds us that america is a global outlier in insisting that speech can only be banned if it's intended to and likely to cause imminent violence.

i want you to remember that standard because that is one of the embraces of brandenburg. speech can only be bad if it's likely to cause imminent violence. it's nothing short of an emergency can justify repression . these are words that come from justice louis brandeis inspiring opinion in whitney versus california where he says that because the final end of the state is to make men free to develop their faculties, the best response, the evil counsel is good ones and as long as there's time enough to deliberate, then every idea no matter how hateful has to be admitted into the public sphere. there's a huge debate in this country today about whether the first amendment should protect hate speech. brookings poll found a majority of undergraduates think it does not when you ask if you can tell people competently the supreme court in brandenburg and its decisions ever since that said by overwhelming majority

that first amendment does protect hate speech and can only allow speech to be banned if it's likely to cause imminent violence. the facts in brandenburg are striking. it involves a ku klux klan rally and a man gets up wearing a clan uniform at a rally and says unless something happens to the race situation, white people are going to have to take vengeance. he is prosecuted under a criminal syndicalism raw which makes it illegal to advocate violence or terrorism as a means of accomplishing industrial or political reform. and the court markedly holds that this speech was hateful and appalling and the guy is in a clan uniform at the rally and it's protected by the first amendment because it is not directed at inciting or producing imminent malice action then is not likely to produce the action, it's a willing rally clan people. they're rallying, they're just hearing hate speech they agree with. a remarkable principle, akhil, it comes from

brandeis. why does the court come out the other way for so long and is it correct, do you believe that brandenburg and brandeis was channeling jefferson and the virginia kentucky resolutions are right that the originalist matter and what else in the audience? >> .believer in very, very broadpolitical speech . and i don't try to shelter my own students from hearing sharp critiques of their worldview. and yale is not governed by the constitution. but the free-speech idea is even broader than the first amendment . it's about how we as a society actually have to be willing to confront ideas that we might not like and figure out why we don't like them and sharpen our own views and hear the other

side. why did it take so long? it's not a unique tory about the first amendment. we've heard for example that 14th amendment really did promise racial equality but that's not what we got. in plessy versus ferguson, that was only happened later in brown versus board of education. we heard congress is really authorized to pass sweeping civil rights laws but that actually the court initially in the 1883 cases didn't get it right. finally did although not on reconstruction power grounds but on interstate commerce grounds so i believe that words that were up on the screen before no congress shall make or enforce any law that shalt erase the privileges or immunities of the state of the united

states. no state can violate fundamental rights, no state can violate things in the bill of rights like speech, petition and assembly. all but it took the supreme court a very long time to actually catch up to that in general. >> congress passes, congress gives that first congress, the words of the first amendment and what happens within a decade? passes a law making it a crime to criticize you guessed it, congress. the sedition act of 1798 and the courts willingly uphold that. so there's a lot that the constitution actually says and then the courts actually don't initially implement. and then only later do we finally, finally catch up to it. you might say that about affirmative action. when you think that is prohibited and the courts are prohibiting it now but it's hopeful that they will eventually,. so what explains that? if you not unique to that hate speech.

i would say that many of the constitution are a radical idea. it's amazing. and it takes sometimes in america a long time to actually catch up to these commitments of common sense that really are in the text. and it's because we really are in the text that they prevail in the long run.. there's a test of the constitution in the long run and partly because they are a great institution like the national constitution, on c-span that is designed to reintroduce you to these amazing words and principles. >> thanks for the plug. >> and mike. >> oh, and books like brother paulson. >> this is a good time for me to plug this wonderful book by tony morrow, landmark cases volume 2 which will review all these wonderful cases in which you can get online and here at the constitution center. mike, i guess to questions

about brandenburg. first, akhil is right that the reason the court recognized this free-speech principle in the 60s was the vietnam war. suddenly protesting is much more popular and the justices are sensitive to it. versus the time of the sedition act or where 1917 where we were passed during world war i atthe time of the framing, those prosecutions were much less popular . was brandenburg and that is brandies correct? the constitution is going to have such a cool debate next month in boston, justice breyer will speak and it's the kennedy library but judge campbell has a brilliant scholar who's written a piece for the yalewater journal saying it's an originalist manner , and it's supposed to protect or political speech but maybe some restrictions on hate speech are okay so i want to know is brandenburg correct? >> that's a big complicated question and i'll try to get an answer. i think brandenburg is right. i think that hate speech

tests are committed to the principle of free speech. if we believe in the freedom of speech, we have to believe in the freedom of people to express views no matter how unpopular and how unreasonable they seem to be the to the overwhelming majority of people. short of the brandenburg line, the media insight into eminent law and in the world after charlottesville, it's hard to know where that line is. but the line that is drawn in the brandenburg case is that you can't punish speech based upon its offensiveness.that means we have to protect the broadest sphere. akhil and i are both re-speech liberals. i reached that result in as a matter of policy, not because i like beach. i do like speech. idon't like all speech . but i think that is correct as a matter of the original meaning of the constitution. it is true that the purpose of the framers, the core purpose of the first amendment was to protect core

political speech. but i think that the words that they wrote, freedom of speech are broader than the principles. they were overbroad in protected speech. a go beyond what the europeans do and it is something distinctive to america. whether it's the supreme court too long to get there, i think could be fairly debated. the supreme courthas not always been a vigorous protector of free speech . for the most awful decisions of the supreme court came in affirming convictions or sedition for outrageous speech. one of the cases mentioned in the book i wrote is a case called debs versus united states. eugene debs was a socialist presidential candidate in a variety of elections in the early 1900s. he was basically prosecuted and convicted and incarcerated for a harsh anti-world war i policy.

can you imagine that incarcerating a presidential candidate for political speech. the supreme court upheld that. whether it took the vietnam war to break the barrier of free speech, i think is a fascinating question. it's a sociological matter but i'm just a dumb lawyer. i don't know that i can answer that description. >> the dense precedent is amazing and does runs for president from a jail cell. >> he gets 1 million votes. absolutely astonishing. and then an inspiring story of constitutional, i will say evolution. i'll say a precedent of different perspectives coming to recognize the insight of jefferson and madison that speech in national rights that comes from god or nature and not government and that freedom of opinion can be alienated worse surrendered to government because our opinions are the product of the reason and its creatures

of the enlightenment, we get alienate our reason to this because it defines who we are as human beings. >>. >> that is what madison said. >> i think madison had first. >> all right, we have another person in free-speech and it involves protest, called thinker versus des moines, 1969. still the height of the era and here's some students are deciding to protest was going on in the public sphere, we're about to have a march on washington on the students were not happy with our current gun-control policy and in 1969, it was the vietnam war and students come to school wearing black armbands. to punish and protest the war and the question is can they be suspended by the table and school district for their armbands? they say that this violates their freedom of speech, the sons do majority opinion by justice courses, the court

says students can't be punished for their passive expression of opinion. the ban on armbands is a wish to avoid controversy, it can hardly be argued that students shed their constitutional right to expression at the schoolhouse gate. a memorable phrase, even students do have first amendment rights, that is being challenged today by the internet. where is the schoolhouse gate if you are texting at home, and text are received in school. and what do you make of recent supreme court decisions including those upholding bands on hits for jesus on the grounds that they might disrupt school discipline? so akhil, how important was the thinker? was it correct and is the court right or wrong to be heading back on that more recent case? >> this one is personal for me. i think i do what i do in

part because my teacher brought me to philadelphia when i was 11 years old and that made a tremendous impact on me. but then three years later, four years later, i'm in high school and i write an op-ed for the school newspaper that the principal sensors . and my teacher stood by me. and told me to read this case called thinker versus demoing about free speech of students and i read it and it inspired me and i think it changed my life. i tell the story in a chapter that i wrote, a book called law of the land about thinker versusdemoing . this is a case about the next generation. all i can tell you is for me, when i was a student it

inspired me to take the constitution seriously, to take rights seriously. it's what the national constitution center is all about. it's good to see one youngster in the third row and thanks for coming. this space is all about, two thirds of the people who come here are not on a daily basis our youngsters learning about the constitution. for me, that's what tinker v. des moines was a beautiful story. this spectacular presidents' day with thousands of young people, so inspiring. but mike, akhil has given us the story but these more recent cases suggest that your rights, justice thomas suggested in a provocative opinion that aspen our original manner, students have no first amendment rights at all. >> tanker is a great case.

i love the tanker case, even though protected akhil, i would like to see him suspended but i don't have a story like that one of my first jobs out of law school was working defense of religious freedom for high school students. one of the prayer groups for bible studies, afterschool in the same terms of the chess club or the underwater basket weaving cloth or whatever it was . the case that we cited more than anything else was tinker v. des moines. even though it was a religious freedom case, we were relying on the religious freedom revision. we were saying this is the expression of news and you can't discriminate on the basis of the facts. we use tanker as the main case. truth the supreme court has been chipping back on it. there are greater restrictions upheld on the decor of of free speech and

whether it's offensive. if something occurs within a curricular context, the speech kind of becomes more the school speech and it's easier to write a disagreement with that. i disagree with the bonnie hess for jesus case. what is this? it's a snotty nose high school senior, a man after my own heart. >> she shows up for i think it's a parade in alaska as the olympic torch is going through. and they are actually dismissed from school that day. he doesn't show up for school, he goes straight to the parade and unfurled this banner that says bond hits for jesus. the game. he's just being a wise thinker. there's no message but may uphold the expulsion or suspension of him from school . on the basis of what he does have a party. now i know i'm more like him

that i would like other students to disagree with but the basic principle that kids are persons are possessed with free-speech rights is a vital and correct message. is not limited to adults. kids out there, though press your freedom of speech in a legitimate bounds of it that can be disruptive to the school environment. they can't interfere with the rights of other students. they can't be secure and have a good education but short of that, you get to express your views and that your constitutional protected rights. >> beautiful. >> new york times versusthe united states, pentagon papers case . whose reading, who's seen the post movie? it's great. go see it and it's crucial to the movie. where president nixon is

using his executive authority to try to prevent the new york times from publishing these top-secret documents related to the vietnam war and as we know from the movie, they mentally by daniel ellsberg who worked for the department of defense and in the movie, it's catherine graham, publisher of the post who makes the brave decision to publish despite the recommendations of her all-male lawyers. and she the same time is trying to figure out what the new york times will do. a lower court judge has actually stop the presses for the first time in american history, the presses stopped by someone who fears the exposure of the information might be dangerous to national security. another judge uses the stop the presses and i'm proud of that. the supreme court and as we learn from the movie, the first amendment protects the right of the new york times to publish papers and justice black wrote one of his most

memorable decisions saying that the word security should not be used to abrogate the fundamental law of the body in the first amendment. >> what is the legal principle that justified justice black holding the correct as an originalist matter and was there a decent case on the other side? >> the first amendment talks about freedom, less about freedom of speech and freedom of the press and these are two slightly different things at the time of the framing. and of course, the 14th amendment makes these sort of applicable decisions against state and local governments like des moines iowa for example. freedom of speech comes from freedom of speech and debate. and in parliament is the place of people speaking from pathway. it's a very broad political. in england, parliament gets to do that. in america, everyone gets to do that because we are the

parliament. all of us, that's a broad political expression which is what mike and i defend . and that's the brandenburg case. >> freedom of the press, the press there didn't mean the media. it actually meant a machine like the printing press. stop the presses. and the idea was in england, the printing press used to be a pretty expensive, pricey piece of equipment. today, you all have one, it's called your laptop or your iphone. but back then , in the century before the constitution, it was a very big, heavy piece of equipment and the government of england fought that could license it. it could decide who could get a printing press and who couldn't. and freedom of the press was this idea that actually, government shouldn't be allowed to license vehicles.

you could create what you want but if the government didn't write what you print it, maybe you could be punished after the fact. this came to be in america, a in the first amendment, it came to be associated with this idea of no prior restraint. the government can't license a printing press and have censorship rules in advance. if they published stop that compromises legitimate government interest, there's a possibility of punishment after the fact but they can't stop the presses by government fiat. in that after-the-fact punishment, one other thing you need to understand is who's going to decide whether these words were written, not just a judge on his own or her own, the jury is going to have to decide. the jury of your peers who see what it is that you published and whether that was contributing to the national debate or not. but the pentagon papers case

is a narrow one. it's a great story, but it only stands for the proposition that government can't stop the presses in advance but the court knowledges there is a possibility that once the new york times or washington post published this, there could be prosecutions afterwards. though they were very happy that they would not hold back and actually published. they were at risk of after-the-fact punishment and the free press clause which again, is only a ruleof no prior restraint . >> that's an important wrinkle. in the movie,catherine brown is worried about being put in jail for conspiracy because both she and the times relied on the same source .

mike, is that the correct written principle? you can't be stopped from publishing before the fact but you can be stopped from publishing after-the-fact. why didn't the nixon administration tried to stop them from publishing after-the-fact or do you believe the national rights and would prohibit publishing after-the-fact? >> that's a tough question. whether the first amendment would permit criminal prosecution of someone from publishing the disclosure of national security secrets. that's not something decided by the pentagon papers case. this case came up on a super fast track, two weeks from the beginning of the publication of the pentagon papers. the supreme court does it in rapidfire fashion.the movie captures this wonderful -- i can't believe a law professor hasn't gone and seen a movie about a supreme court case. >> there's a range of opinions from the first amendment absolutists that say government cannot restrict whatever the press

clause. to brandon's opinion, justice william brennan that says you know, they might be able to restrict publication of the national security secrets of the sort of analogous to letting hitler know where the d-day invasion was. right? that there are compelling interest overrides. to a middle block of justices that say we're -- we don't need to decide that because one principlethat firm is not the government may not shutdown the press . and here, congress had passed the law authorizing nixon to seek the injunction that he did. getting a court order stopping the presses is not only a first amendment violation but the separation of powers violation. the president is asking the court to write a law that congress can write. give us the case where congress has passed the law and we might come out different. there have been cases like that. i think there was an instance

sometime in the early 2000's, might have been 2006 or 2007 where the new york times disclosed a signal intelligence operation, something about nsa wiretapping program. say what you will about the validity of the wiretapping program. the disclosure of the intelligence gathering information did violate the specific criminal statute. and it is an open question, not decided by the supreme court whether you could criminally prosecute the press for disclosing a vital national security secret. the gravitational force of the new york times case has created a political atmosphere where it's usually brought about. we do not go after the press or publishing things even where the statutes seem to say otherwise. >> we have two more cases and

the next one involves the sixth amendment. in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and to have the assistance counsel for his defense. our case is gideon versus wainwright which held that criminal defendants have the right to an attorney even if they can't afford one on their own. if you want to learn the human stories gideon and wainwright, read anthony lewis youthful gideons trumpet it inspires generations of florida law schools to defend the defenseless and its astonishing story. i will ruin it except to say that gideon who had writes his own positions to the supreme court saying that he had a right to a lawyer ends up getting one and being retried and being found innocent. i wish i could take a lot out lewis's book but i've got to take up the kindle because i've got to read the last paragraph . it's so movingand you just have a sense of the incredible journey that gideon travels . to be made free. after exercising his

constitutional rights. after two years in the state penitentiary gideon was a free man. there were tears in his eyes and he traveled more than usual and stood in a circle of well-wishers and discussed his plans. his half-brother, the air force sergeant was coming home from japan and would adopt gideons children.that would be a last triumphant visit to the harbor pool room. someone less than a few dollars, someone did and it wasanthony lewis. you feel like you accomplished something, a newspaper reporter . well, i did. akhil, what was the final principle that you have a right to have the same page for you to have a lawyer. how does that privilege with the sixth amendment, why did it take the court so long and was getting correct? >> there's a right of counsel in the constitution and after the 14th amendment, that fundamental rights as with all the others comes to apply

to the states. the counteris all, counsel only if you can pay for it. it's not government appointed . >> it's not so clear. it is true that in capital cases in america, the government paid for private counsel, but in noncapital cases, it didn't. on the other hand, the conviction was in a noncapital case, you did have the benefit of legal counsel called the judge and the judge actually if you print the council, would like to look after your interest and the judges paid for by the government last time i checked . so that was a form of government sponsored, government-subsidized counsel. over time, it came to be clear that the judge can't be both the umpire and the coach for the defendants team. you can't wear both at once so one idea is gideon's case is just actually, changing

the precise way in which the government provides your counsel, not through a judge but through a public defender. public subsidized, that's one argument. there's the adjustment argument. whatever else it says, the constitution provides for due process which is not fair procedure. and there's just an intolerable risk of unfairness that an innocent person could actually be found guilty, not because he's guilty but because he's not particularly learned in the law. and he can't quit himself well in a jury trial, the rules of evidence and all the rest. there is an intolerable risk that someone's going tobe convicted , they are poor and that's not fair procedure. not due process of law and a societybecomes wealthier over time , maybe it's more fair to insist that we provide

more government resources, especially because government is pouring more money into prosecution that did before, so that's the second argument and one that does depend in part on overtime, how the prosecution functions is changing, how government is becoming wealthier. and here's one final point, thecounting point . at the time of gideon, 45 of the 50 states as a matter of state law were already getting all felony defense appointed counsel. and that's black landmark opinion for the court in gideon mentioned that prominently. it's a counting idea. and even the fisa lawrence, all of which were the former confederacy, this gave counsel for capital defendants and actually in big cities and even gave counsel to a lot of people, just not every felony defendant. 25 states filed an amicus brief in the case. 22 of them on the half of the

center. so actually, most of the states were very much on board with this principle and you see the john marshall harlan council the second, the younger coming principal had issued in this one as well. >> i heard a lot of evolution in there. i heard counting, function of government changing, a lot of little handwaving, stuff like that. so as an original matter , some states ban defendants from having counsel because of the best fitness of an old system where there was no counsel and you weren't sworn under oath and people weren't allowed to testify in their own words but at the very least, the sixth amendment was trying to allow you to have counsel and support it. was the court correct to hold in the 60s that even if you couldn't afford a state to provide one or was gideon wrong? >> gideon was right and i

think the principle is actually a pretty simple one. it's still arguable and debatable. i think the right to counsel, the right to have assistant counsel for defense is an affirmative right. it's not merely a right not to have government forbid you from having a lawyer, but it is a right to have a lawyer and i think it's an entirely plausible reading of that that situation where someone can afford one that the government would provide appointed counsel. so i'm going going to have to side with gideon. >> last case. the fourth amendment, i'm going to put it on screen but i think it's the beginning of the fourth amendment my heart. the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and the idea of the fourth amendment is to

repudiate the general lawrence that work the american revolution. >> we're going to stepaway from this event on historic supreme court cases and go live to the u.s. senate for what is expected to be a very brief pro forma session . >> >> .. the presiding officer: the senate will come to order. the clerk will read a communication to the senate. the clerk: washington, d.c., february 20, 2018. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the senate, i hereby appoint the hereby chair. signed orrin g. hatch, president pro tempore. the presiding officer: under the previous order, the senate stands adjourned until 2:00 p.m. stands adjourned until 2:00 p.m.

that completes today quick session. next to his friday at lucky stern affected less expense on his dorks court decision. >> there is a so much to say about that including the fact that it seems circular if the government says citizens were going to track your gps devices jordan door that are expectations of privacy are admonitions what our constitutional protection and it may determine the future of electronic privacy by deciding whether or not it applies to the

tracking of armament outlook based on seizing our supple records for five months. you have written so powerfully in the general warrant was correct as an original matter for the better decision in the matter or if you are writing it from a text list and rituals when of you would you decided on other grounds a broad understanding of what counts as a search or seizure during fourth amendment. we don't quite live in the same physical universe people can be intruded upon without a physical trespass electronic surveillance technique so like the idea of a broad reading assertion teacher and when you read the fourth amendment all that it means when there's a search and seizure is there has to be reasonable.

the court sometimes says if it's search and seizure than it has to be a warrant which i don't think is true. it isn't true for all sorts of search and seizures, metal detectors and airports have search and seizures and they don't have words if you are stopped in frisk on the street that's a search and seizure. it doesn't really weren't so i have no broad understanding of what counts as a fourth amendment episode but i think all that it requires is governmental reasonableness and warrants that were generated after the cast case wired to lawrence are issued in secret and will lead to pfizer warrants which are also issued in secret and i don't love the facts with courts acting in secret because they don't act so well when they act secretly in "so here is where i'm really cookie. the framers of the amendment did

believe in an exclusionary rule so even if the fourth amendment was violated if actual evidence of guilt was found that was actually admissible in here is a quote from a famous case. it matters not how you get it if you steal it even it wouldn't be admissible. that is not brandeis' view and if you're a real brandeis enthusiast he thought that it obviously followed the government violated the fourth amendment it evidenced should be excluded and we have no founder said that, no founder every actually thought that in no court in america state or federal and state constitutions with the fourth amendment and no court in america excluded evidence in the kind of exclusionary rule like way and the entire century after the declaration of independence so the view has a broad fourth

amendment what triggers it and only reasonableness is required in the not sure the judge is issuing warrants are the best way to go and i don't love the exclusion which by the way doesn't help you at all if you are innocent because if you're in is that they don't find anything and they still intruded upon you so i prefer a regime which is founders regime which when you intrude on to them for damages, have a jury decide in a jury of your peers and suck it to him and the more innocent you are the more you recover and good for you. >> my, the recent panic the cases have also been you reminisce record has held by nine-zero votes that put your gps device on the bottom of someone else's car for seizing their cell phone on arrest without a warrant by late fourth amendment but the more conservative book on private property violations and that was

the problem in the gps case where they put the gps on the bottom of his car in the driveway and was there a property violations to peg on or was it wrong? >> i think capps was right from the original's perspective but i think with all respect, just, you're wrong about the conservative justices. some of them have found fourth amendment violations where there's a specific intrusion on the property right but one of my favorite to mimic cases to teach is one that is called title which is written by justice scalia and there is never more pure original meaning actual us than justice scalia. he was relentless on this. it served wonderfully for 30 years on the support. this is a case about the use of infrared technology to look into people's houses and the question presented was whether that was a search and he said the fact that it was not a technology known at the time does not alter the fact that it is intruding into the areas of the home where people

it is a search of the home and it matches the literal words of the fourth amendment. i think similarly to seize someone's phone conversation to wiretap is a seizure. it was not a technology know the time but it was an illustration that the constitution the breeze embrace new instances that fit into traditional categories from an originalist point of view capps is right that wiretapping someone's conversation read with an astonishing amount of what it was said about the fourth minute. it's a prohibition on unreasonable searches, not a prohibition on searches. per se and not all searches require warrants and they adopted the wonderfully conservative view that the

fourth amendment does not provide an exclusionary rule in the fourth amendment is traditionally about damages, remedies, suing police officers for intrusion on your rights not excluding evidence. there is no clear textual reason in the constitution why the polices error a mistake or willful mistake should result in the exclusion of evidence at trial. they should be sued for damages but i think that is not reasonable why he should go free because the constable blundered. >> this is a wonderful place to end. first it shows that two old friends with great different approaches may converge unconstitutional results in his remind us justices like justice alito in justice scalia who often was agree on the result may divert on methodology

because they have different views about how the constitution should be translated in light of new technologies. ladies and gentlemen, here is your homework as you get ready to enjoy this credible series of 12 landmark cases. first, i want you to dig into the text of the constitution and i do want you to download if you haven't already the national constitution center's amazing interactive constitution which you can find in the app store. you can click on each of these amendments and see the leading, liberal and conservative scholars in america such as [inaudible] thousand words on what they agree to provision means and estimates about what they disagree. it is an inspiring civic and educational cease and it will get you to think about the cases. i want you to read the opinions. you don't have to read all of it but you can skim every law student learns us. read the majority opinion, read the dissent and then listen to the human stories and hear the amazing, inspiring, brave

lawyers on both sides made their arguments and then at the end make up your own mind and be open to the possibility of incorporating your constitutional conclusions. be open to the possibility that searches of the conversations are bad ideas but the fourth amendment prohibits it or their good idea fourth amendment allows it and that is what it means to think like a constitutional lawyer and that is what i learned so many years ago and that process the two of you what you learned when your students debating each other caring so much about the meaning of the constitution in recognizing that it is a need for people of fundamentally different points of view as justice holmes said that the constitution center is about. that is what c-span is about and that's why were so excited about the series and we will share it with you. thank you to our friends at c-span and see you next week. thank you so much. [applause] [inaudible conversations]

[inaudible conversations] [inaudible conversations] >> this afternoon at the white house correspondents association holds a discussion on white house press secretary sarah sanders and former white house press secretary mike mccurry. he will talk to an audience about the relationship between the president, the press in the public. watch live starting at 7:00 p.m. eastern on c-span. here on c-span2 it is book tv

and part-time with a look at book publishing. we will hear interviews with several people who are responsible for bringing their book from acquisition to publication. former publisher and editorial director at bloomsbury press, peter, talks about the duties of a book editor. representatives of columbia university press look at the value of university presses and how to publish them and editor in chief and publishing director of live right, robert, received the editorial excellence award from the biographers international organization. book to be tonight starting at 8:00 p.m. eastern on c-span2. also tonight portions of the first on rigged the system summit, an event focused on campaign-finance, the electoral college and redistricting. actress jennifer lawrence spoke about the relationship between political candidates and super pacs. here is a look. >> okay. if there is a wall between candidates and super pacs that if i is a political donor for big money at is perfect my personal politician does not get to decide how it is spent.

right? >> well, that is technically correct except that the people who do decide how to spend it are usually in the scenario the former campaign manager of the candidate or) of the candidate and one of my favorite examples was the parents of the candidate who are running the super packed. so, they also can share what are called common vendors so they can use the same sentence. basically i think it is useful to see it as the other pocket the candidates coded. >> but if the candidate tells a super packed exactly what to do with the money -- is that legal? >> that would be illegal. >> okay. >> however, the first they have to get caught and then the fcc has to have a majority vote on

whether to investigate it and as you may have heard the ftc has basically deadlocked on all of this in the last couple of years. >> that was part of an event held recently in new orleans at the on rigged the system summit which look to issues like campaign-finance and redistricting. you can see the entire event tonight at 8:30 on c-span. >> c-span's history series landmark cases season to start monday and 9:00 p.m. eastern with a look at the significance of supreme court decision mccall of the maryland in 1819. explores this case with sarah peterson, sophia law professor at the university of virginia and mark, law professor at the university of arkansas and author of mccullough the maryland securing a nation. watch landmark cases live, monday and 9:00 p.m. eastern on c-span. he's .org or listen with the free c-span radio app. for background on each case order a copy of the landmark

cases computing book is available for $8.95 at c-span .org/landmark cases. you can go to our website with the interactive constitution. >> c-span for history unfolds daily. in 1979 c-span was created as a public service by america's cable television companies and today we continue to bring you unfiltered coverage of congress, the white house, the supreme court and public policy events in washington dc and around the country. c-span is brought to you by your cable or satellite provider. >> next is a discussion on the 18 nuclear posture review with