by supreme court justice ruth bader ginsburg. 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 an hour and 15 minutes. jus. ginsberg: let me begin by expressing the society's gratitude to justice ginsburg. you have always been a generous -- very generous in giving of your time in your efforts to the society, when we have called upon you. and thank you for taking time from your really enormous schedule at this particular time of year. this evening comes about because 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 become a touchstone for me, for our collective american history. what could possibly be the common thread? it would be the constitution itself. my late husband howard purchased the dunlop and claypool copy of the united states constitution, september 17, 1787, nearly 30 years ago. during my stewardship of this document, i have attempted to provide much greater access to the public, the students, and to academics. it is magical to even touch the document when you have the opportunity to do so. not tonight. [laughter]

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 make clear -- more clearly define 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, so too 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 upon which the constitutional decisions, past and present, are delivered to the public for affirmation and discussion. several of the guggenheim fellows have spoken to the historical society in this chamber before and after their fellowships were received. it is now pleasure to introduce the president of the john simon guggenheim foundation. i will formally call him edmund hirsch, but we all call him eddie. stand here while i give her history, ok? so 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

college. we are not going to give it all. eddie graduated from grinnell college where he earned honors in both academic and athletic events and pursuits. already a poet in his college years, he went on to earn his phd in folklore at the university of philadelphia. before joining the guggenheim fellowship, he taught at wayne , 17 years atity the university of houston, he is -- and he is the author of nine books on poetry and is a prolific commentator on poetry. he has written columns for "the washington post" book world. his book which is entitled -- 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 over the years for his work, a guggenheim fellowship, a

macarthur fellowship, national book critics award, a pablo neruda presidential medal of honor from the government of de 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] edward: so honored to be with you, thank you for coming. the john simon guggenheim memorial foundation was founded in 1925 by senator simon 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 ever since to , identify and give fellowships

to the very best artists, scholars, scientists, to free people to do the work they were meant to do. to me, it it is an emersonian commitment, an american ideal. on 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 fields in all the arts, including 125 or so future nobel prize winners. we have been appointing fellows in law since 1936, and these fellows have included many notable scholars, including mark

tushna of harvard university who clerked with justice marshall and is with us tonight. the fellowship is focused on the study of constitutions, ours and others, and the process of constitution making, rather than more broadly on law. it seems to me that this mandate in constitutional studies is more important than ever in these troubled times. there have actually been 11 fellows since the foundation appointed two fellows in 2008, to start our fellowship with a bang. those two are panelists tonight, randy primus and randy barnett. -- richard primus and randy barnett. before we start i would like to , ask the other fellows tonight to stand. leah vander welled holly brewer, , david rabon, kristin stilts, kurashi landis. please give them a hand. [applause]

edward: as you know, our fellowship in constitutional studies is the brainchild of my friend dorothy goldman, a trustee of the guggenheim foundation and the 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 that the constitution is the bedrock document of democracy everywhere, and she is doing her tremendous part to sustain constitutional studies. it is an honor to be associated with her. [applause] dorothy: 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 a legal icon, and many of the details of her life are very well known to all of us. but what i would like to do is provide you with a few highlights that i found very interesting. justice ginsburg's well-known emphasis on legal issues of gender equality got its 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 less than her male law school 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. from that beginning she went on to argue gender discrimination

cases before the supreme court and to participate in hundreds of cases in many different jurisdictions. justice ginsburg continued to 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 school casebook on sex discrimination, and while she was at columbia law school, professor ginsburg then met and was inspired by her colleague louis hankin, widely considered one of the most influential contemporary scholars of international constitutional law and foreign policy in the united states. to further close the circle between the court and the

guggenheim, we must note professor hankin was a guggenheim fellow who had clerked for felix frankfurter, the very justice 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 united states court of appeals for the district of columbia, where she served for 13 years. president clinton appointed her to the court in 1993, and justice ginsburg has been a faithful supporter of the supreme court historical society during her entire tenure at the court. she has sponsored many lectures and many wonderful musical programs. she has been a great friend to everybody here at the staff, the officers, and our volunteers. earlier this year, she

emphatically noted that she had been a member of our society long before she was appointed to the court. throughout her career, justice ginsburg has worked to eliminate the barriers to success that women have faced, just as the guggenheim foundation assists scholars engaged in, quote, "any field of knowledge and creation, and any of the arts, under the freest possible conditions, irresponsible of race, color or creed." i can think of no better match to this evening's program than justice ruth bader ginsburg, who will now present this evening's panelists. justice ginsburg. [applause] >> absolutely my pleasure.

jus. ginsberg: from our first encounter many years ago, dorothy goldman has been one of my favorite people. thanks, dorothy, for your 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. [laughter] jus. ginsberg: the conversation you are about to hear, on modes of constitutional interpretation, is sponsored by , as you have just heard, by the supreme court historical society and the john simon guggenheim memorial 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 like tonight's and publications. here it is. but publications and one of my favorites is called "table for nine." it is about the supreme court's

dining customs. it's from chief justice today. three times a year the society publishes a journal for history. many of the portraits of 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. the on role -- the honorable patricia in the court of appeals for the d.c.

circuit judge judge barnett works for the ninth circuit and served as an advocate in the department of justice's civil division. later she was an exemplary member of the general's office. before her appointment to the [indiscernible] she has argued 32 cases before the court, and i attended everyone of them. i can attest to her great skill in the art of persuasion both on briefs and orally. her skill as an advocate is

complemented by another strength . she is a second degree black belt. in tae kwon do. she's been on the bench since her appointment to the bench in 2013. she is a member of the historical society's board of trustees. randy barnett is the waterhouse 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 pen is prolific, his books and print include most recently our republican constitution, securing the liberty and sovereignty of we the people. under his leadership in georgetown center for constitution, they have partnered with the society encumbrances on the variety of topics including chief justice baughman chase.

the 13th amendment and associate justice james wilson. richard pryor is a theodore stained antoine collegiate professor or he 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. professor primus worked for the u.s. court of appeals's second circuit and served as my super intelligent, uncommonly savvy separately. it's a good deal more about each of the participants, but that would intrude on time for the conversation you came to hear. i will leave off and ask circuit

judge let --the circuit judge to take over the reins. 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. 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. i was 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 up until then -- 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. they wrote it in 1845. 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. it refers to people that we 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. they adopted the decision that 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. >> i came to the field of constitutional law in 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 and 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. in other words, originalism, as 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. it seems to me what original ism -- 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. how do these judges decide this? if the founders 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. prudent, wise, and after all, it 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 -- intuitions 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. it is easier to find judges 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 original meanings, the original 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. the cases are decided by 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. this is fascinating, but to make it real and practical for people, let's pick a case that i think everyone will know, brown v. board of education. a landmark in our national history determining everyone 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 up in the first instance and what you think the right way of analyzing and coming to the resolution of that question. you want to continue through that lens? sure. brown is a wonderful example of

the dynamic i'm pointing to. when brown was decided in 1954, 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. one assignment 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 today, but it is not clear that people thought he could do the job done. 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 subject and 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. the principal problem there with 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 me to be an originalist denies what you should be. if you look at the text and 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 ferguson was justified -- you would have to say that plessy versus ferguson was justified. and if plessy is wrong, why 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.

no evidence was required that 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. interestingly 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.

none of this was known in 1954. 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. i agree with his account of the 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

adjudicated the set of issues, in the first several decades after the 14th amendment was adopted got it wrong. to say it is ok that you don't like what the content of the law was in the late 19th century america, because they got it wrong, and the constitution is better. it is a backward facing comment and similar sort of thing that sandra spinning -- spooner did. spooner was a change agent. spooner was not someone who wanted to hold the content of the law steady. the content of the law on slavery was pretty well-known and people could plan their lives around it. it was evil, but it was known as stable.

spooner's genius was to 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, which means 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. >> it is entirely possible for judges to be wrong. >> is that so? [laughter] init is important to keep in mind a distinction that has not emerged yet. i should have got this out in my opening remarks. that is the difference between deciding what the words of the text means and applying that to facts and circumstances that come before the court the second . step is a separate step. the name that constitutional theorists associate with that is constitutional association. -- construction.

constitutional interpretation is to ascertain the communicative content or meaning of the words, what information is conveyed by this booklet? there is information in this booklet, what information is conveyed by this booklet? that booklet, too. the same words. [laughter] somehow i feel richard's book has different stuff in my stuff. [laughter] what is the meaning of the words in this booklet? but then you have to apply the meanings to particular facts and circumstances. it is in the application phase , which is 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, reach a wrong conclusion because they have a mistake on the facts among other things. good example of that. first of all, the slaughterhouse cases, which got the immunities clause wrong and applied it wrongly. as a result of those cases, the section of the 14th amendment second has ceased to exist in the supreme court or any other court.

it says no state shall make or enforce any law that shall abridge the privileges of any citizen of the united states. that is what the 14th amendment says. if somebody came down from mars and 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 this basis and one concurring opinion by justice thomas was decided on that basis, but other than that, it has been overlooked. that is a mistake the courts have made for a long time. another mistake they made was the day after the decision of the slaughter house cases. they decided a case called gladwell versus illinois. 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 right to pursue a lawful occupation and when myra went to practice law and jews denied -- and was denied to practice law because she was a woman, the courts said there was no such

right that we can recognize. everything we said yesterday means anything, then she has no right here, so go away. there was somebody on the court that day who thought that was wrong. that was chief justice salmon chase. he descended -- dissented. justicethat the chief dissents from the opinion and all opinions, including the concurring opinion by justice bradley, to justify this on the basis of facts about women that we now know today to be completely false. they made a mistake, in applying the 14th amendment and both interpreting it, and applying it . point. is a good speaking of change agents, we have justice ginsburg, who was a great change agent as a practicing lawyer in cases involving gender discrimination. where do your theories lead to the protection clauses against

discrimination on the basis of gender? surely 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? do we have to go to privilege and immunities clause, or could we have done under the protection clause? inall three would operate league with each other. and sometimes multiple causes apply to the same fact. they are not that discrete. telegraphedalready my answer by talking about gladwell. if plessy is wrong, then brown is right. if bradwell is wrong, the 14th amendment protects against irrational discrimination against women, which is what the equal amendment -- protection

april clause has been finally interpreted to apply the kind of protection. the dissenters in slaughterhouse, when they justified against myra bradwell, other than chief justice chase, the defendants had to justify the discrimination by citing the differences between men and legal infirmities that women were facing. they had to bring a fact-based arguments. justice miller did not have to because he already said there's no such right. dissenters said there is a right and women are not being denied it. pretty much all you got from supreme court decisions, not from civil rights laws, but the decision protecting women today, is a bar on irrational discrimination and intermediate or greater scrutiny of

the 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. >> you make a very attractive case, i think. on have explained that meanings, thel constitution was anti-slavery, and the constitution required desegregation and some sort of sexy quality from 1868 forward, and it all makes me want to cheer. but in your experience, are there examples or times when you work ine the historical the careful, industrious ways that you do, and reached the conclusion that the constitution require something that you wish it didn't? >> yes come easily.

that's easy to do. i've done that an awful lot. i don't like to apply on parts of the constitution that i have not done work on. there are lots of things i might disagree with, i just have not done the work. 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 facilitate it. the way contract law facilitates contracts, i was hoping the evidence supports the conclusion that that is the limit of the commerce clause, that means the power to regulate means the power to facilitate. it turns out it did not. it turns out the power to regulate included the power to prohibit. in fact, madison had a phrase for 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. that was in order to protect markets. it was a protectionist measure. it empowered congress to enact protectionist measures that i would prefer were unconstitutional, but are not. i have a question for you, richard. int is, if you were a judge having to decide brown as -- withr president dent, whatyour prece would be our justification other than your own desires for racial equality for making the decision if youging precedent, couldn't have resource to an independent document greater than precedent, something called the constitution of the united states? >> i don't think that judges should make decisions on the

basis of their own idiosyncratic or contestable -- perhaps that is too strong -- their own idiosyncratic views. i think that should be avoided. part,k that for the most precedent-based decision-making is valuable because it gives a lot of guidance to prevent judges from doing that. i think it's also the case that there are occasions when the view that the judges have isn't idiosyncratic in view. it is a widely shared view, at least among their profession. not necessarily in the entire society. it is a view that there is really something important that the prior decisions have missed. 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. and, that our system is built to have them be appropriate factors for decision. one more question. -- >> one more question. if you are opening criticism for originalism was that there was original meanings and, i get that, supposing there is an example where the meaning is knowable, so the text of the constitution really does have that meaning, do you think the judges are bound by the meaning where it is knowable or not? >> i think the question is less about knowability of the original meaning. it is more a question about the shared accessibility of the legal meaning. if the legal culture has a general understanding of what a constitutional provision means or some other source of law

means, then delivering what we want in a stable legal system . it tells us how to order our affairs. we know what it is. that is a good reason to abide by it. what worries me is a situation where the legal culture doesn't think that a 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 , produces a reading of historical documents that say you have all been doing it wrong, that is the piece that worries me. i am more or less what is called a common-law constitutionalist. like originalism, common-law constitutionalism is the serving -- surname 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 by courts is nt is the, precede 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 judgment calls. sane theory of adjudication does. my sense of about this sort -- shortcomings of original is in, there are other areas in which randy and i agree, but in this domain where there is disagreement with us, my concern is that originalism lends itself more easily and more often to the change agent, not that my alternative methods never do. >> i don't want to step too much into time for reception, but i question to bring

this down to a more practical or operational level. what are the judges supposed to do? we do not have the time to study 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. we get cases brought to us by litigants who are briefed and they argued. how can judges do what judges, in your respective views, are supposed to do, and confront this constitutional question for which there is no governing precedent? [laughter] nobody wants to answer that one. [laughter] >> i will answer it. 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. just as 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 knowledge base that is constructed by others. this should be hashed out amongst scholars. b a in law schools, history apartments, or in independent thelars who are not in academy. that is when genuine peer review should have been. article,hen i read an that makes a persuasive originalist argument on behalf of a proposition, i read that and say, that is pretty 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. as originalism is legitimated

, hopefully over time, there has been and there should be more and more attention paid to the meaning of each of the provisions of the constitution. it is not that big a document. we can get through them all. there should be attention paid to each of the provisions over time. that research should be vetted and peer-reviewed and judges can rely on that the way they have in major cases decided in the last five or 10 years, meaning that concern the original meaning of the second amendment, the right and keep and bear arms, the meaning of the recess appointments clause. in cases like that, the justices don't have to originate their own research. they rely on research done by others. >> i think judges should mostly do the things that is the core skill of appellate lawyers, which is reading cases in the cedentre .

it is the skill 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 protean when it matters in ways 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. >> i need to add something. [laughter] 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 by courts over time to implement

the texts. for example, the amendment says first what it says about freedom of speech, then there are doctrines developed analyzing time, place, and many resumes of -- regulations of speech. the first amendment doesn't say anything about time, place, manner, and regulations of speech, but that's what the 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 they have developed 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 do it by implementing doctrine or what is called constitutional construction. that will evolve over time. that is your true living constitution. the living constitution is how doctrines that have been developed to implement the constitution are developed over time. they will then only be reconsidered if they are undercutting or inconsistent and not faithful to both the letter and the spirit of the original constitution.

that is going to be an unusual circumstance when that can happen. >> you sure can. [laughter] >> [inaudible] >> how would each of you have decided loving versus virginia? yes. >> [inaudible] so loving v. virginia was a decision that the state of virginia cannot criminalize cross racial narrations -- marriages. it is 13 years after brown. the day that brown is decided, every good constitutional lawyer

in america knows that the path to loving is open and the courts spend 13 years ducking the question, and then decides it in loving. i think 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, 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. but if the question is, who i am today, if i were to do that, my view would be, by the time of loving, we had equal protection principle of brown. the law in loving made the criminality of an act depend on the race of the actor.

that, it follows from the principle of brown and its understanding of equal protection can't be. ,>> i think on richard's approach, it is difficult to know what loving wouldn't have come out the other way before brown v. board of education. without brown been decided, loving is wrong, and in fact it is the way it has been done, everybody was wrong about it. legal practice and precedent set it was constitutional, so it must be constitutional. it only became unconstitutional on this account after 1954, 13 years after that. if loving is correctly decided, as it clearly is in my view, it is because it was unconstitutional the day that the 14th amendment was enacted to irrationally and arbitrarily discriminate against citizens of the united states and between citizens of the united states.

back thense people didn't think that that was a rational doesn't mean it was doesn't -- irrational mean it was rational. that is what has changed. the application of that principle, barring arbitrate treatment of the government -- of the people by the government 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. >> here again is a difference between how randy and i and think about history. in 1883, the supreme court decided the case called pace versus alabama. upheld aace v. alabama 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 -- what the court did in the in 1960's loving, i think i would be acting in a self-congratulatory manner that i can't justify. i would be attributing to myself a wisdom out of time not available to the people who actually 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 was just systematically wrong all the time, they were unable to understand what their law really was, i think that we are working with the problematic conception of what makes the law right and wrong. >> 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. it may be that under the current -- the politics of any given day, including the politics that chooses judges in those days, that people are not going to see it that way, and if they do, they may be too timid to say so. justice harlan was not too timid to say so. justice chase was not timid to say so in the bradwell case.

we do have dissenters in those days you are 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 purport to govern us. >> i want to make an observation and i think randy will agree with it. i cannot speak for him. i think it is a way for our positions differ from a normal, off-the-shelf conception that a lot of lawyers and other lawyers have about how a common-law constitutionalist and originalist might think about the law. that is this. randy is the originalist here. offers a set of interpretations on which the law andoing to vindicate his our shared moral intuitions all

or almost all of the time, much more than mine will. mine, when it looks back in history, will more often say, i don't like it, but i have to acknowledge that that was the law. what is interesting about this is that in the general civic culture, originalists are beingcriticized for heedless of what our values are. randy is not at all heedless of that. common-law constitutionalists and others who are not originalists are often criticize 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]

>> so 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. thank you to justice ginsburg, i thank you to justice, and professor barnett, it has been a lovely, illuminating evening. i would like to remind you there is a reception that follows downstairs in the lower reception hall, and i have been asked to tell you that when you are down there, the gift shop is open and you might find a nice father's day gift. [laughter] please join me downstairs. we are adjourned. thank you very much. [applause]

>> you are watching american history tv, all weekend, every weekend, on c-span3. to join the conversation, like us on facebook. "afterwards." details for efforts to prove that children in flint, michigan where being exposed to "whatoisoning in her book the eyes don't see: a story of crisis, resistance, and hope in an american city." she interviewed by michigan senator gary peters. yourt's talk about

actions. you heard that there might be led in the water. when did that happen and what were some of the first actions you took? >> the point that i realized there was led in the water was not until the end of august of 2015. at wasn't from seeing patients. it happened to be at my house, over a glass of wine with a high school girlfriend who happened to be a water expert, formerly with the epa in washington dc when they went through a similar crisis.the water she asked me if i had heard about the water. i thought it was ok. she said everything is not fine. it is not being treated properly. because it is not being treated properly, there is going to be led in the water. that was the moment i realized i needed to take action. i tried to get children's blood lead levels, because that is something the state and county has surveillance for. a track this just like we've tracked the flu and hiv and other epidemics. i could not get the government data.

i did my own research at our public hospital to see what was happening to our children's lead levels. it was the easiest research project i've ever done, looking at the change in the lead levels. what we saw was alarming. >> watch afterwards tonight at tv. p.m. east>>ern on book h week american artifacts takes you to historic places to learn about american history. driving the tour exhibit at the henry ford museum in dearborn michigan. transportation curator matt anderson shows as early vehicles made by henry ford, we will also see the mustang and how the brand changed over time.