replacement, senate confirmation hearings to the swearing-in, all or listen c-span.org, free on the c-span radio app. to law professors explore different interpretations of the u.s. constitution. we will hear from randy barnett of georgetown university and primus from the diversity of michigan. the event in the supreme court chamber was cohosted by the supreme court historical society and the john simon guggenheim memorial foundation. it is about one hour and 15 minutes. let me begin by expressing the society's gratitude to justice ginsburg. you have always been a very generous -- been very generous in giving of your time to the efforts of the society, when we have called upon you.

thank you for taking time from your enormous schedule at this particular time of year. about becauseomes of my deep and abiding connection to our two hosting organizations, the supreme court historical society and the john simon guggenheim foundation. my history with the historical society goes back over 25 years. my history with the guggenheim goes back a little over 10 years. each of these organizations has forme a touchstone for me, our collective american history. what could possibly be the common thread? it would be the constitution itself. purchasedsband howard a copy of the united states september 17,

1787, nearly 30 years ago. during my stewardship of this have attempted to provide much greater access to the public, the student sent to academics. touch thecal to even document when you have the opportunity to do so. not tonight. through my connection to the historical society, i have learned more about the need to adhere to the words that were written in philadelphia in 1787. through the guggenheim foundation and their amazing committee of selection, they have found scholars who can reach into the constitution and more clearly defined the meeting of the words and the phrases that have influenced our daily lives for over 231 years.

so just as we all have different opinions on a myriad of topics, are the interpretations of the constitution. i am looking at our two fellows here. i have become a knowledgeable collector, but certainly not a constitutional scholar. the guggenheim's constitutional fellows have become a great source of pride to me. the court and the historical society are the pillars on which constitutional decisions, past and present, are delivered to the public, for affirmation and discussion. the guggenheim fellows have spoken to the historical society in this before and after their fellowships were received. it is my pleasure to introduce simonesident of the john guggenheim foundation, eddie

hirsch. [laughter] stand here while i give her history, ok? a little history about the president of the john simon guggenheim foundation. he has been our president since 2003, he is a great advocate for learning and for literature. eddie graduated from grinnell where he earned honors in both academic and athletic pursuits. already a poet and his college n to earn went o t a phd in folklore at the university of philadelphia. he taught for 17 years, at the university of houston, he is the author of nine books on poetry

and is a prolific commentator on poetry. he has written columns for "the washington post." one of his books, which is entitled "how to read a problem and fall in love with poetry," was a surprise best seller. eddie has received many honors of years for his work, a guggenheim fellowship, a macarthur fellowship, national book critics award, a presidential medal of honor from the government of chile, and americanm the academy of rome, and in 2008 he was elected chancellor of the american academy of poets. in 2017 he was elected to the american academy of arts and letters. eddie. [applause]

eddie: i'm so honored to be with you. thank you, for coming. the john simon guggenheim memorial foundation was founded simon5 by senator guggenheim and his wife, olga, in memory of their son who died young, who they said had a life of eager aspiration. the foundation has had a singular mission, to identify and give fellowships to the best artists, scholars, scientists, to free people to do the work they were meant to do. emersoniant is an commitment to american ideal. self-reliance, emerson says, do your work and i shall know you, do your work and you shall reinforce yourself. or as william james once put it, the practical consequences of such a philosophy is the well-known democratic respect for the sacredness of individuality. since 1925 there have been 18,000 fellows in all scholarly

includingthe arts, 125 or so future nobel prize winners. we have been appointing fellows in lawson's 1936 and these fellows have included many including tuars, mark tushna. the fellowship is focused on the study of constitutions, ours and others, and the process of constitution making, rather than more broadly on law. in constitutional studies is more important than ever in these troubled times. there have been 11 fellows since the foundation appointed to fellows in 2008, to start our fellowship with a bang. those two are panelists tonight,

randy primus, and barnett. i would like to ask the other fellows tonight to stand. holly brewer, david rabon, kristin stilts, please give them a hand. [applause] our fellowship and constitutional studies is the brainchild of my friend dorothy goldman, a trustee of the guggenheim foundation and supreme court historical society. dorothy's passion for the constitution is matched only by her great generosity, particularly to those who advance our understanding of the constitution. she recognized the constitution is the bedrock document of democracy everywhere, and she is doing her tremendous part to sustain constitutional study.

it is an honor to be associated with her. [applause] host: and now, it is my absolute pleasure to introduce the audience to justice ruth bader ginsburg, truly a privilege. the justice is both a cultural and many details of her life are well known to all of us. what i would like to do is provide you with a few highlights that i found very interesting. ginsburg's well-known emphasis on issues of gender equality. it's a start at the beginning of her academic career as a professor at rutgers law school. because she was previously denied a clerkship because she

was a woman, and then being paid schoolan her male law faculty colleagues, justice ginsburg was motivated to cofound the first law journal in the united states to focus exclusively on women's rights, and to cofound the women's rights project with the aclu. onm that beginning she went to argue gender-discrimination cases before the supreme court, and participate in hundreds of cases, in many different jurisdictions. continued tourg focus on gender discrimination and equality issues during her academic career, moving from the faculty at rutgers to her alma mater, columbia law school. she became the first tenured woman faculty at columbia. she co-authored the first law sexol casebook on

discrimination, and while she was a columbia law school, professor ginsburg matt and was inspired by her colleague widely considered one of the most influential scholars on constitutional law and foreign policy in the united states. to further close the circle between the court and the guggenheim, we note professor fellowwas a guggenheim who clerked for felix justiceter, the very who once denied ruth bader ginsburg a clerkship because she was a woman. professor ginsburg left academia in 1980, when president jimmy carter appointed her to the u.s. court of appeals for the district of columbia, where she served for 13 years. president clinton appointed her andhe court in 1993,

justice ginsburg has been a faithful supporter of the supreme court historical society during her entire tenure at the court. many lecturesred and many wonderful musical programs. she has been a great friend to everybody here at the staff, the offices and our volunteers. sheier this year, emphatically noted she had been a member of our society long before she was appointed to the court. justiceut her career, ginsburg has worked to eliminate the barriers to success that as theave faced, just guggenheim foundation assists scholars engaged in quote, "any creation,nowledge and and any field of the arts, under the freest possible conditions, irresponsible of race, color or creed."

better matchf no to this evening's program than justice ruth bader ginsburg, who will now present this evening's panelists. justice ginsburg. [applause] justice ginsburg: dorothy goldman has been one of my favorite people for many years. thanks, dorothy, for that fine introduction, and appreciation to your many contributions to the well-being of the supreme court historical society. and good evening to all gathered here. a hearty welcome to my workplace, the supreme court of

the united states. the the conversation you are about to hear, on modes of constitutional interpretation, is sponsored by the supreme court historical society and the john simon guggenheim foundation. dorothy goldman was the catalyst in bringing the two organizations together. my colleagues and i applaud her initiative. the society, as many of you know, was founded by chief justice warren burger in 1974 to advance public understanding of the court and its role in our nation's democracy. the society pursues its mission in many ways, including programs publicationss, and

. here it is. but publications and one of my forrites is called "table nine." it is about the supreme court's dining customs. [laughter] today.om chief justice three times a year the society publishes a journal for history. ofy of the portraits justices displayed throughout the building where historical society acquisitions. these were conveying -- these were for comparing -- conveying to the public.

my colleagues and i appreciate the society's endeavors. i'm here to moderate this evening's conversation between professor randy barnett and richard primus. role -- the honorable appeals in the court of for the d.c. circuit judge judge works for the ninth circuit and served as an advocate in the department of justice's civil division. exemplarywas an member of the general's office. appointment to the

[indiscernible] cases befored 32 the court, and i attended everyone of them. [laughter] i can attest to her great skill both onrt of persuasion briefs and orally. her skill as an advocate is complemented by another strength . she is a second degree black belt. [laughter] in tae kwon do. she's been on the bench since appointment to the bench in

2013. she is a member of the historical society's board of trustees. waterhousett is the besser -- professor at the law center where he teaches constitutional law and contracts and directs the georgetown center for the constitution. he was one of the two recipients of the inaugural goal guggenheim awarding constitutional studies. his books prolific, and print include most recently our republican constitution, securing the liberty and sovereignty of we the people.

iner his leadership georgetown center for constitution, they have partnered with the society encumbrances on the variety of topics including chief justice baughman chase. amendment and associate justice james wilson. is a theodore stained antoine collegiate teaches the u.s. constitution. like professor barnett, professor primus received the inaugural guggenheim award. among his publications he is the

author of the american language of rights. worked for thes u.s. court of appeals's second circuit and served as my super savvyigent, uncommonly separately. about each deal more of the participants, but that would intrude on time for the conversation you came to hear. and ask circuit judge to --the circuit take over the reins. [applause]

>> thank you justice ginsburg for that marvelous and overly generous, at least on my part, introduction. it is a privilege to be with two of the greatest scholars on constitutional interpretation in the business these itsy -- these days. professor barnett and professor primus. thank you, justice ginsburg, for hosting this wonderful event. let me get straight on to business. nobody wants to hear me talk, they want you to explain all of the things i'm doing wrong in constitutional interpretation. can each of you take a few minutes to explain to the audience here what your

particular theory of constitutional interpretation is , the role history plays in it in particular, and how you came to adopt that approach to constitutional interpretation. can i start with you, professor barnett? sure.barnett: it is not to be here. it is a great honor to be the first recipient with richard of the guggenheim constitutional studies award. is a great boost in my career and the research i did under my fellowship relates to your last question, how i got into this in the first place. i will say that to the end. i'm grateful to dorothy for having established this. it is a great pleasure to be on the program with my friend professor primus. we enjoy each other a lot and interact on social media.

my basic approach is no secret. i am an originalist. that's my basic methodology. first, what his original is him -- originalism? the meaning of the text of the constitution should remain the same until it is properly changed by amendment. another sound like a radical doctrine and comes as a big shock to people. let me say that again, the meaning of the constitution should remain the same until it is properly changed by amendment. you might say fine, but why should that be? question should the meaning remain the same until it is properly changed? to enter the question it is important to know why we have a constitution and what it is. i happen to have a copy of it here. so, what is this? this document, the constitution, this is not the law that governs us. it authorizes people to make

laws to govern us. with the exception of the 13th amendment, which governs us, everything else is the laws that governs those who govern us. then the question is, if this is the law that governs them, they can no more change the laws that governs them without going through the change process which is the amendment process stipulated in article five. then, we can change the laws that they make to govern us. if we're driving down the street and we see an unreasonable speed limit, perhaps set that way so the government can get increased revenues, we cannot unilaterally change that's be limit to something we like better. there are no speed limits of that kind. we have to go through the regulatory process and legislative process to change this be limits. what applies to we the people with the laws that are imposed

on us also applies to those that govern us. this is the law that governs them they have to go through the process to change it. that means people like judges should not be able to change the law that governs them. congress cannot do it, the president cannot do it, they can all not to do together until they go through the state and get that amendment ratified. that is the basic approach. that is why i think that is the right way to do it. because that is how our governors are governed by law. as for how i got into this in the first place, i came in from a somewhat unusual, i would probably say unique route. i was not an originalist. contracts scholar and teaching of contracts. i was a criminal prosecutor and became a contract scholar. i gradually got into constitutional law and i was not in a religion list. if i had to -- an originalist.

i was working with my professor and the reason i wasn't was because i accepted the criticisms made of original ism originalism up- until then. that was some pursuit of the framers intentions. you would want to do with the framers do. this is summarized by the what would madison do in the constitutional appropriation. you hypothesize about what they would say in front of a particular case. the problem is, you cannot figure that out, what the framers would do. it is not a historical question about what the framers would do about what they had never seen. it is a hypothetical question. it requires a construct. i was persuaded that this was wrong and original is him -- originalism is wrong. i can across a citation of a book called the unconstitutionality of slavery by man and i'd heard about him

in college and had no idea he wrote a book like this. in 1845.e it what could he possibly have said about slavery being unconstitutional before the 13th amendment was ratified? i had the library get me a copy of the book and it was a 280 page book. i read it and it was essentially what we would now today call a public meaning approach to the words of the constitution. he asked what do these words mean on the page, and it did these words ratify slavery? we all think they did. we all know they did. there are proslavery provisions of the constitution that we were taught about. spooner denied that. he said each one of those provisions never mentioned slavery. that wes to people think are referred to as slaves as other persons or people like that. they call them persons. according to his meaning, you cannot go behind the meaning of the text to examine the

intentions of those who wrote it. they intended these things to mean slavery. you cannot go behind that to get to their illicit or evil, or unjust meaning or intentions to interpret it. as i read this book, i thought this is an originalism i could get behind. this might actually work. i started pursuing that idea. i did not know others had already independently pursued a similar approach called public meaning original is him --originalism. that was first publicly pioneered by justice scalia cautioning originalists back in the 1980's that they should stop talking about framers intent and start talking about original public meaning. what meaning to the words have to the general public when they were published, when they were issued. that is how i became in originalist. with my guggenheim fellowship, i used that to expand past

spooner. he was far and away not guilty person, he and another person named william persuaded frederick douglass to this particular edition that this was anti-slavery and not proslavery. there were a bunch of other people, and i used my fellowship to explore those other people. i ultimately wrote an article discussing a dozen of what we would call these anti-slavery constitutionalists. they did not take spooner's position. most of them conceded slavery was in fact constitutional within the states that had them. thatadopted the decision came to be the hallmark of the new republican party. if the constitution established a regime of freedom nationals, that is with the word of the constitution established. that is the connection with the guggenheim. >> fantastic. , do you believe in living speed limits? prof. primus: i don't even know what that would mean. [laughter]

i came to the inld of constitutional law large part through the field of constitutional history. i studied constitutional law and a lot of political theories as an undergraduate and went to graduate school and did work in concert to show history -- in constitutional history. my beginning included a bunch of intuitions at home among originalists as a certain kind. it seems to mean that i could find a meaning of the constitution and, therefore, answers on how constitutional issues should be decided to understanding the original history. as i went, i came to think more that the historical inquiry of that kind was not a good way to settle temporary historical settings. largely because i agreed with

randy's views about the undesirability of certain kinds of change. judicially induced change. , asther words, originalism many originalists understand it and has randy -- how randy has disrupted it is a device for preventing officials from changing meaning of a constitution. i think it is important for also took reasons to hold the meaning of the constitution study -- steady. the trouble is the original meaning is not a very good technology for doing it. ismeems to me what original -- what originalism is better at is creating change. this is something that i learned as i thought more about how history and constitutional decision-making interacts.

decision-making based on original meanings often puts judges at a very difficult decision for reasons of the kind randy mentioned. it is difficult to read historical materials and conclude this is what they mean for the question in front of me. the framers probably did not consider the question in front of you. and the materials you are looking from, and face the get all to the question, they may speak in many voices. the interpreter is left with the scatter plot of data from which is necessary to interpolate. what is the best interpretation here? is what i'm trying to come up with an original meeting. -- meaning letting me decide this case how does these -- decide this case. this? these judges decide are also smart

responsible people trying to do the same -- right thing, as for different possible interpretations or constructions of what the original materials mean, judges tend to choose the interpretation that seems to them sensible. all, it wise, and after would not make sense to attribute a position -- position to the founders that would not be sensible. the thing is, when judges think is sensible or wise changes over time. the intuition of judges is different. intuitions for 30 and 60 years ago are different. as the judiciary introductions changes, we tend to find in the ambiguities of the material that the founders left to us, our own preferred

solutions because we read in a way that makes sense to us. it is hard to think of examples of judges in big contested cases being persuaded by the original meanings to do something that we think is not what they thought was a good idea working on a blank slate. judgesasier to find producing the disagreement in the register of original meanings. that means that the proof of original meetings, it is positively provoking judges to read their own intuitions into the constitution, not intentionally. it makes the meaning of the constitution change over time. now, think about two kinds of the originalings, meaning of the constitution changing over time, not the actual original meaning, to the

extent that the constitution or any text has original meaning. the meaning is locked in at the moment of origin. decided byre something we can think of as operative original meanings. the operative original meaning is the original meaning as understood by the person making the decision. what do i think the original meaning was? sometime that coheres with the original meaning pretty well. sometimes we disagree. operative original meanings take over time because our intuitions about sensible solutions change over time. fascinating, but to make it real and practical for people, let's pick a case that i , brownveryone will know v. board of education. a landmark in our national

everyoneetermining knows that segregation, public education, was unconstitutional, that separate but not equal under equal protection laws, so can you give a brief summary of how your approach would look at that question if it were coming andn the first instance what you think the right way of analyzing and coming to the resolution of that question. you want to continue through that lens? prof. primus: sure. brown is a wonderful example of the dynamic i'm pointing to. 1954,rown was decided in it was generally understood, common ground that the original meaning of the 14th amendment properly understood and not require the desegregation of public schools. this was a problem that the supreme court faced because they, by and large, wanted the right answer to be that the

schools should be segregated. but a sense that that is not the framers of the 14th amendment had in mind, seems to stand in their way. there are lots of reasons for that. schools that existed were not desegregated after the 14th amendment. the galleries in which congress debated the 14th amendment were segregated by race, the civil rights legislation of the 1870's was interpreted as set aside by separate but equal. was in you make the original meaning of the 14th amendment required desegregation? he said, i'm sorry justice, i cannot do that. the court decided that, although it was not required by original meanings to do so, it could, on other grounds, desegregate. what happened in the next phase is a critical piece.

today, most originalists believe in good faith. that the 14th amendment requires the result in brown. there are two different ways that they get their. summary the history of little differently. some say -- some read the history of little differently. some say that this required desegregation of the schools even though people than did not understand it to do that. i said yes, that is what has happened. the original meaning of the 14th amendment has changed so that now, when people think that schools should be desegregated, it is possible to read original meanings and away for that result. because original meanings had a lot of lay in them. the problem is, very few people in 1954 thought that. so we are saying originalism seems i could could do the job clear thatit is not

people thought he could do the job done. prof. barnett: it's pretty clear that people did not think it could do the job in 1954, which is why the supreme court held it over for reargument on the it didn't give them the answer that supported their conclusion. they never did say the original meaning of the text was against that. they said the historical evidence was inconclusive, and because of that, they could do what they were about to do. you could deny a relevance and got away from it. withrincipal problem there an originalist argument and 54 was that people were using the framers intentions, or what is sometimes called original intended expectations -- original expected applications approach, i'm sorry, and in this case, it was not hypothetical read if you ask a lot of what they thought of the 14th amendment desegregating schools, they would have been opposed or

denied that. that was as far as the historical research took. it was not about the original meaning of the text itself. they were inquiring into the expectations of the people that wrote it. that is what the old originalism did in the originalism persuaded deniese an originalist what you should be. andou look at the text historical analysis of the words of the text, not something done here off the top of your head. but, i think it is plain that in order to say that brown was unjustified on originalist grounds, usa plessy versus -- youn was justified would have to say that plessy versus ferguson was justified.

wrong, whysy is would plessy be wrong? i think it is wrong because it was a law that was using the state's police power to do something and there was no good reason to do -- no good reason for that police power to be produced by the state. this said the state could do what they want in preservation of good order. thatidence was required the state was solving a problem or that there was a problem. those not enough to satisfy the three clause operative clause of the 14th amendment. it requires some inquiry into the facts. the reason the justification of the court offered was a case decided five years after the 14th amendment was house, the slaughterhouse cases.

they inquired into the facts that said you did not need to do that and, from now on, don't worry about it. enough, whether the 14th amendment would have justified -- whether the 14th amendment would justify desegregation of the schools was thought to be something that the republicans in congress who voted for the 14th amendment believed. that is the reason why they passed the civil rights act of 1875 that was eventually invalidated by the supreme court. the republicans passed that law and every republican in the house voted for the bill who voted for the 14th amendment. every senator won that voted for the 14th amendment and voted for the public accommodations law. a majority in congress in both houses of congress wanted to add

schools to the list of public accommodations. they were blocked from doing so from filibuster rules in the senate and house. the house had super majoritarian rules. it was only because of the super majority required and they failed by a vote or two to get that, dead the schools -- did the schools not included in the act. in 1954.his was known partly because you really don't get an originalist answer unless you do the research and you know what question you are asking. that is, you are asking a question about original meaning, and if you ask the right questions and look at the evidence, you might get the right answer. his response goes to a really important difference between his approach and mine. of the with his account 1875 civil rights act, but even

if schools had made it into the act, it would not have made a difference because every court to construe the 1875 civil rights act construed it to be satisfied with separate equal. to say that court understood the nondiscrimination rule to say you cannot keep african-americans out of theaters entirely or off trains entirely. but, the requirements -- there was no rule that counted segregation at all. it seemed to me that to say the correct, original understanding of the 14th amendment required desegregation requires us to say that every court that ,djudicated the set of issues in the first several decades after the 14th amendment was adopted got it wrong. it seems to me that is a difficult thing for someone who

takes history seriously in the way that i think of history to think. i cannot think that that means the law is bad. but, a legal system in which every official comes to the same result, for many years, and we generations later say they were doing it wrong, seems immodest. it seems may be no, we are missing something about what their law was and they knew something, and we don't like it. then the originalist can come in. paste story, to redeem the , to say it is ok that you don't like what the content of the law was in the late 19th century because they got it wrong, it is a backward facing comment and similar sort of thing that spooner did.

spooner was a change agent. spooner was not someone who wanted to hold the content of the law study. the content of the law on slavery was pretty well-known and people could spend their lives around it. it was known as stable. and he wouldgenius find a way to attack it and revolutionize people's understanding of the constitution. for that he appealed to a set of original meanings. those lent themselves well to visionary change. they are indeterminate meaning you can pour new content into them, and they function as an appeal to the highest moral authority in our system, the founders. that is a wonderful combination for someone seeming to make a change. prof. barnett: it is entirely possible for judges to be wrong. >> no. [laughter] it is important

to keep a distinction in mind that has not emerged yet. that's the difference between the siding with the words of the text means and applying that meaning to particular facts and circumstances that come before the court. the second step is a separate step. constitutional theorists associate with that is constitutional association. they ascertain the meaning of the words, what information is conveyed by the booklet. there is information in this booklet, what information is conveyed by this booklet? book haschard's different stuff in my stuff. [laughter] then, you have to apply the meanings to particular facts and circumstances. it is in the application phase and not the interpretation phase that people can make mistakes. they can figure out what the meaning is, and when they take

into account the facts as they understand them, rita wrong conclusion because they have a mistake on the facts among other things. first, there is the slaughterhouse cases which got the meanings of the cause wrong and applied it wrongly. cases, the of those second section of the 14th amendment has ceased to exist in the supreme court or any other court. they say no state shall enforce law that -- that is what the 14th amendment says. if you came down from ours and somebody read that provision, you would think that is important. but from 1873 until today, it is not operative in the courts. one case has been decided on its basis, and one important opinion a justice thomas was decided on the basis. other than that, that is overlooked. that is a mistake that the courts made for a long time. another mistake they made was the day after the decision of the slaughter house cases.

it was on the authority of the slaughterhouse cases which was decided the previous day. they decided that, first of all, there is no rightful law of occupation and when myra went to practice law and jews denied because she was a woman, the courts said there was no such right that we can recognize. everything we said yesterday means everything. she has no right here so, go away there was somebody on the court that day who thought that was wrong those teeth justice salmon -- that was chief justice salmon chase in a single line of justiceion, the chief -- bet we now know today to completely false. in applyingmistake,

the 14th amendment and both interpreting it, and applying it that is a. good point, >> speaking of change agents, we have -- so, where do your theories lead to legal protection clauses for a basis of gender. neither the framers intent or public understanding of the time of the 14th amendment being adopted, there is no 1875 legislation that would give women equal status, so how does your approach work on that issue? and, do we have to go to privilege and immunities cause -- clause or can you do it under another cause? all three clauses operate in league with each other.

as i have already telegraphed my answer by talking about bradwell, again, if plessy is wrong than brown is right, and if bradwell was wrong, the 14th amendment protects against the irrational discrimination against women which is why the equal protection clause has been finally interpreted to apply the kind of protection. in fact, slaughterhouse, when they justified against myra the dissenters in slaughterhouse had to justify the discrimination by citing the differences between men and women and the legal offer middies that women were facing -- legal affirmities that women were facing. to bring a fact-based arguments.

the center said there is a right and women are being denied it. all you get from supreme court decisions, not from civil rights women, butject supreme court decision protecting women today is irrational discrimination and intermediate or greater scrutiny of legislation to ensure it is not irrational. that is what i think the original meaning of the 14th amendment gives all persons, women and men, and minorities of all kinds and the individual alike. prof. primus: you make a very attractive case. i think. that by explained proper original meanings, the requiredion desegregation in some sort of sexy quality from that your forward it makes me want to cheer.

are there examples in your experience? are there examples of times when you have done historical work in the industrious ways you do and reached the conclusion that the constitution requires something that it did not? prof. barnett: easily. i've done that an awful lot. i don't like to apply on parts of the constitution that i have not done on -- not done work on. in the case of the commerce clause, which i have done a lot of work on, what i was hoping to find when i did the work on that is that the power to regulate interstate commerce was limited to the power of making interstate commerce regular. the power to facilitated the way contract law for telesales -- law facilitates contracts. i was hoping the evidence supports the conclusion that that is the limit of the

means thelause, that power to regulate means the power to facilitate. it turns out it did not. the power to regulate included the power to prohibit. madison call that a prohibitory regulation. one of the reasons they chose the language that had the public meaning it had was because they wanted to give congress the power to regulate trade with our nations. that sometimes included the prohibition on trade. protectionist measure. it empower congress to enact protectionist measures that i would prefer were on constitutional, but were not. i've a question for you, richard as well. if you are a judge in 1954 having to decide brown as precedent for your president -- president, and going back to the 14th amendment for your president, what would be your

justification other than your equalityes for racial for making the decision and changing precedent if you could have resource to an independent document those greater than precedent, something called the constitution of the united states? prof. primus: i don't think the judges should make decisions on the basis of their own --osyncratic or contestable that might be too strong, idiosyncratic views. i think that should be avoided. decision-making is valuable because it gives a lot of opportunity to prevent judges from doing that. it is also a case that there are occasions when the view that the idiosyncraticn't in view. it is widely shared view, at least among their profession.

not necessarily in the entire society. the view that there is an porton's -- there is something important, that a prior decision has missed, and that could reflect a difference in factual understanding of the world, and it could reflect a difference in deep-seated values, i think there are limiting cases, not many, where those things are appropriate factors for decision. system is built to have them be appropriate factors for decision. prof. barnett: one more question. for your opening criticism originalism was that there was original meanings and, i get that, supposing there is an example where the meaning is null, and the text of the constitution really does have that meaning, do you think the

judges are bound by the meaning whether it is knowable or not? prof. primus: the question is less about knowability of the original meaning. it is more question about the of theaccessibility legal meaning. if the legal culture has a general understanding of what a constitutional provision means or some of their source of law what wehen delivering want in a stable legal system tells us how to order our affairs. that is a good reason to abide by it. in one situation with the legal culture does not think the provision means a certain thing, and we have ordered our affairs on the assumption shared that it doesn't mean that thing, and an industrious historian or advocate, bystander or otherwise reduces a reading of historical documents that say you have all been doing it wrong, that is the

piece that worries me. less what is called a common-law constitutionalist. like originalism, common-law constitutionalism is the serving of a family, not everyone is the same and is exactly the same thing, but common-law constitutionalism takes the view that we are decision-making were courser concerned on president being the best guide to constrain the discussion of judges to hold legal systems of stable, to let people order their affairs. it is not succeed in completely eliminating discretion in adjustment calls -- in judge and calls. note. adjudication does. -- no sense of adjudication does. . the other areas in which randy

, but in this domain where there is disagreement with us, my concern is that originalism lends itself more easily and more often to the nge agent, not that my alternative methods never do. >> i do not want to step too much into time for reception, but i have one less question to make this come down to a more practical or operational level. what are the judges supposed to do? to study have the time a particular provision of the constitution for months and months, let alone read all of the copious literature and fantastic writings of the two of you. if we get cases brought to us by litigants who are briefed and argued but they argued, how can in youro what judges, respective views are supposed to do and confront this

constitutional question for which there is no governing presence -- president -- precedent? prof. barnett: i think what we ought to have is an intellectual division of labor. i think it is unrealistic to expect judges to be doing independent historical research. whenever you receive expert testimony, you're not a scientist, you evaluate experts who have to be qualified before they are allowed to testify in front of you. you rely on the nodded -- the knowledge-based produced by others. this should be hashed out amongst scholars. vide law schools, history apartments, or in independent scholars not an academy. that is where genuine. review should happen. when i read an article that makes a persuasive originalist argument on the pf -- on behalf of a proposition, i read that

and say that is pretty plaza. -- prettyind fault plausible. i cannot find fault. but when i hear that adversary system applied to that contention, i do not think i can reach a conclusion about that myself. legitimatedsm is hopefully over time, there has been in there should be more and more attention paid to the meaning of each of the provisions of the constitution. it is not that big of a document, we cannot get to the mall. there should be attention paid to each of the provisions overtime and that research should be vetted and peer-reviewed and judges can rely on that like to have relied on that in major cases that have been decided in last five or 10 years that concern the original meaning of the second amendment, the recess appointment clause, and in cases like that, the

justices don't have to originate their own research. they rely on research done by others. prof. primus: i think judges should mostly do the things that is the core scale of apparent lawyers, which is reading cases in the fine president. it is the thing -- fine president. it is the thing that it is built to do. one of the features of our system is that the people who are asked to make those decisions are trained as lawyers and not historians. the constitution is a kind of sacred text. it's meaning is likely to be waysnt when it matters in that has also been true of some other sacred text. we will never stop running out of constitutional disagreements with each other. when we do, i doubt that we will stop generating disagreements

about the constitution's original meaning. prof. barnett: i need to add something. that is that only in a very small fraction of constitutional cases is the meaning of the text pertinent. mostly what is pertinent is implementing doctrines developed high court overtime to implement the text. the first amendment says what it says about freedom of speech and then the doctrines developed analyzing time, place, and many resumes of speech, none of them say anything about those, but that is the way courts have implemented what our constitution does say. here's why richard and i have common ground. mostly what courts do is apply the doctrines in the past to implement the meaning of the text. they do not go back to the meaning of the text and do it that way. they implement doctrines or constitutional construction. that will evolve over time.

that is your true living constitution. the living constitution is how --trines who have been dealt developed to implement the constitution are developed over time. they will then only be reconsidered if they are andrcutting or inconsistent not faithful to both the letter in the spirit of the original constitution. sual will be in unu circumstance when that happens. >> [indiscernible] >> you sure can. >> how would he give you decided loving versus virginia? --f. primus: i would have when we are asked -- yes, so loving --

>> [indiscernible] loving versus virginia is a decision that the state of virginia cannot criminalize cross racial areas. is 13 years after brown. the data brown is decided, every good constitutional lawyer in america knows that the path of loving is open and the courts spend 13 years ducking the decision and decided in loving. whenever we are asked how would you have decided some case where we all know who the heroes are, it is so easy to think well of course i would've done the right thing. i would've dissented in korematsu. again, a plea for humility as we think about history. we don't know what we would have done. is, who i amtion

today, if i were to do that, my view would be, by the time of loving, we had equal protection principles of brown. the law in loving made the criminality of an act depend on the race of the actor. and that, it follows from the principle of brown saying equal protection can't be. prof. barnett: on richard's approach it is difficult to know why loving wouldn't have come out the other way before brown . without brown been decided, loving is wrong, and in fact it is the way it has been done, everyone is done about it. legal precedent said it was constitutional and so it must be constitutional. it only became unconstitutional after 1954, 13 years after that.

decided, is correctly and it clearly is in my view, it is because it was unconstitutional the day that the 14th amendment was enacted to irrationally and arbitrarily discriminates against citizens of the united states between citizens of the united states. it is just because people back then did not think that was irrational does not mean that it was rational. that is what has changed between then and now. the application of that principle barring arbitrary treatment by the government of its people. each one of us are part of the sovereign people and we are entitled to be treated fairly and non-arbitrarily by our government. that was true in 1868 and true all the way through. it is only people's opinions on whether that was irrational has changed, not the constitution itself. prof. primus: and here again is a difference between how randy and i and about history.

in 1883, the supreme court decided the case called pace versus alabama. that upheld a law restricting interracial marriage. it did so unanimously. if someone were to ask me if you have been a justice at the time of pace, what would you have done? if i say i would've said no, that is wrong, i would do at the court to did in the 60's in loving, i think i would be acting in a self-congratulatory manner, but i can't justify. i would be attributing to myself always amount of time not available to the people who were of the professional class at the time. i'm fine with the proposition that the content of the law at the time of pace was morally

objectionable. i have a difficult time with the idea that, for decades and decades, the whole legal profession can just be wrong about what its law is. that is partly as a matter of humility. it is also partly a matter of democracy. part of the promise of law in a democratic system is that people can know what the law is, and, if we have to think that the whole legal profession in the citizenry that they serve -- in the citizenry that they serve was systematically wrong, unable to understand what their law we arewas, i think that working with the problematic conception of what makes the law right and wrong. prof. barnett: we have a constitution to protect us from the majority. we have a constitution to protect us from democracy when democracy is doing something fundamentally wrong. how it may be that under the current -- the politics of any

given day, including the politics that chooses judges in those days, the people are not going to see it that way and if they do, they may be too timid to do so -- to say so. justice harlan was not too timid to say so. justice chase was not timid to say so in the bridal case -- bradwell case. we have dissenters looking at the same constitution and saying the majority is wrong, and the legal profession is wrong. i think that is why we have a constitution that is the law that governs those who governs us. i would include the legal profession in the group of people who report to govern us -- purport to govern us. prof. primus: i want to make an observation and i think randy will agree with it. i cannot be for him though. i think it is a way for our positions and where they differ from a normal, off-the-shelf conception that a lot of lawyers -- other lawyers have

people have. that is this. randy is the original list here originalal list -- i ist here. my view, when it looks back in history, will more often say i do not like it, but i have to ignore it that that was the law. what is interesting about this is that, in the general civic culture, originalists are critical lysed -- are often criticized for what our values are. common-law constitutionalists are often criticized for not being willing to know when something is the law and not just their view.

but, in this conversation, i'm that person. >> i think we can keep going for quite some time, but i will get in trouble if i do that. how about we give a round of applause to our wonderful panelists. [applause] >> see you might now ask yourself, what is the mode of interpretation? it is to each person to interpret. words and phrases are interpreted differently by everyone. [indiscernible] ginsburg, i justice thank you professor barnett and primus.-- professor it has been an illuminating evening.

there are receptions that in the lowertairs reception hall and i've been tell you that the gift shop is open and you might fisa find in nice father's day gift. we are adjourned, thank you very much. [applause] >> on c-span3's american history vote ande taking your the question is, which party changed the most since 1968? in the vote right now, with more

than 24,000 casting the vote, is saying democrats changed the most. 56 percent. >> thanks to everyone who voted in our twitter polls on 1968, america and turmoil. more than 200,000 votes were posted on issues ranging from the vietnam war to the presidential election, to women's rights and race relations. , seean tweet us comments video previews of programs, or look back to what happened on this day in american history. on twitter, @cspanhistory. guest, thorp will be our live sunday on eastern. his latest book, will be published on july 3 and his other books include "use the force." blacklist," and 14 more others.

our special series, in-depth fiction edition with brad thor is sunday, live from noon to 3 p.m. eastern on book tv. next, aggressive unpopular culture in the 1840's. she talked about the importance of data to all classes of society during this. including shakespearean performances. she also describes the high literacy rate in the united edged and the rise of serialized novels and ladies journals. her classes about 45 minutes. isout of it for today popular culture. we have been talking about the social changes that go on in the 1830's and 1840's in the united states.