>> here we are, live from the national constitution center in philadelphia, just a moment away from the launch of landmark cases. live coverage here on c-span. >> i am jeffrey rosen. the president of this wonderful institution. only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. beautiful! so inspiring!

[laughter] >> wonderful live c-span audience. you can see that the great members of the national constitution center, like people are inspireduntry, by this nonpartisan mission of constitutional education and crucially is important for citizens to educate themselves about the constitution so american democracy can thrive and survive. and in this educational mission, excited to be partners with c-span. we have a wonderful collaboration -- we had a wonderful collaboration, a few years ago, landmark cases, which the human stories behind some of the most important supreme court cases of all time. inspired by as comment that justice ginsburg made at a national constitution event a few years ago, where she said how inspiring it humanbe to hear those stories so people can relate to thecases and understand constitutional principles behind them. that series was such a success, popularerally, by demand, we are launching

tonight, landmark cases, season two! hurray! [applause] >> and we have a series of new cases. talk about the human stories. and to describe them, we have a dream team of respondents. to introduce hem in a second. first, i have to put in a plug upcoming constitution center events. last week, we had this wonderful with justice ginsburg. she came back and talked about gender equality and the future the constitution. we have coming up the following event as part of our america's program, of which this program is one, coming up later we have dean gherkin school, how the right and left can unite around federalism. justice ellis and john meacham will come. on march 20 -- ha i'm so

excited -- the hard copies of thrilling new book about an underappreciated constitutional taft.william ginsburg will come to interview me about our judicial president and presidential chief justice and a man who lost 75 pounds on paleo diet. exciting events coming up. and now it is my great pleasure introduce my colleague, friend, collaborator, visionary head of c-span, susan swain! [applause] >> note to self. never follow jeff rosen at the podium. president's day. we're going to talk about the supreme court tonight. morereally could be fitting than one of the most important responsibilities that presidents have during their in office, to select judicial appointees to the

supreme court. it's really very appropriate for this very special day. i want to echo jeff rosen's comments about our great working relationship. as long as there's been a national constitution center, nonpartcational and season mission so much mirrors c-span's nearly 40-year-old educational, nonpartisan public affairs charter. so it was a wonderful collaboration. during the 2016 conventions, we set up our studio here and had that beautiful view of independence hall. i'm a native philadelphian, so so nice to be home. [applause] >> as jeff rosen said, they were to invite my colleagues and i to the national constitution center board dinner in washington a few years ago. badere story that ruth ginsburg told was of loving virginia and how compelling it mildredhink about loving and her husband in their bedroom and the police breaking in because interracial marriage was outlawed in i the state of

virginia. poignant human story just resonated with us. we came back to our office and we take on the cases that have dramatic human stories? so working with the folks at the and theiron center great scholarship here, we collaborated with a really advised staff on our first set of cases. and it's hard to know when we frankly because we don't have any ratings. but we had a lot of good as did ncc. the programs are interactive. so we had a lot of people and also sending us tweets and facebook messages. and we liked it! it, was the best part of because what could be better when you have a job where you're learning something, you work great people and you're getting a lot of positive feedback? buttons. all of those so when the election was over and we were looking around for another historical project to do, this was just a natural for us. 12e again, we have chosen cases. we are starting all the way back

mccullough versus maryland. we're going to end up with 1978 and the bochy case. i know, if you all remember when allen bochy challenged affirmative action in the state of california. are not justs that historically interesting but also relevant to our lives today. going to be looking at cases that deal with wireless rights and with civil and with free speech. issues that we -- the right to privacy. that we are all still talking about today. so you'll learn a bit of 200 of american judicial history. but you'll also think about how impactases continue to our society today. i just want to say a quick note about my colleagues, because is a lot of work for us and we're busy covering this. active over the past year. a few of us have taken this on a labor of love.

my cleg colleagues -- can you jt your hands so people see who you are? mark is our special producer for projects. ben o'connell is going to be producing the series for us. nate hurst is next to him. he's going to be working with us to linek-to-week basis up all the guests and video. we have randy, one of our field people. we are sending him out. this goes to the people stories. on location to the personal stories, the hometowns place,e these cases took and getting video, for example, andting chinatown for wu going to des moines for tinker versus des moines school district. so you'll see the cases where these -- places where these cases took place. our production assistant. we also have a big technical crew. you.s to all of the series starts next monday night at 9:00 p.m. eastern time. for 90 minutes. and we will go for 12 weeks.

program. gets its own we're hoping so much to have you in our audience. phone in with questions or end us a -- send us a facebook comment. interactive. your questions really make the discussion. thanks for helping us kick it off. thank you for being here. i'm going to turn it over to jeff rosen. thank you! [applause] susan.k you so much, susan is a masterful moderator. it's such a pleasure to learn these incredible cases. all right. you are in for a treat! i hope this will be a concentrated constitutional feast! where we have two of america's leading expert to help take us through these cases, to learn together, and to spreads the light. omar is america's teacher of the constitution. he was my teacher of the constitution. was my first teacher in law

school. spread his wisdom and knowledge to me and to thousands and hundreds of thousands of others, versus -- by means of technologies. he's the author of many books, including "the constitution lessons for the issues of our era. he is a sterling professor of law and political science at yale. and he is america's leading of constitutional methodology that some have textualism or liberals thatr argues that the text and history of the constitution honestly toerpreted should lead results of different political balances. and joining him in this discussion is michael stokes paulson, distinguished professor chair and of law at the university of st. thomas. books,of numerous including, "the constitution, an

which justice alito called solid, reliable, interesting, informative and a tour of the constitution. approaches things, according to justice alito, from originalist perspective, from a more conservative point of view. i just learned, in the green room, that akeel and mike were law school roommates! [laughter] [applause] >> and what do you imagine these two brilliant scholars of the constitution did in law school? i wasn't surprised to learn they debated the constitution so heatedly, that they would follow communalr into the rest rooms, when they were brushing their teeth and mike was aargue that akeel wild-eyed living constitutionalist and akeel mike an originalist. i'm sure the debate was face as -- fascinating, as we are going to continue it

tonight. let us jump right in. we have to use every moment of this precious time to learn together. begin with to mccullough and maryland. 1819. constitutional reading glasses. of i think we need the text article one, if -- there may be a quicker -- oh, here it is. if it works. okay. wonderful! the congress shall have power to laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the united states. 1816. here innd is created philadelphia. cities,anches of including baltimore. the maryland legislature passes of stateaxing out banks. and the question is, does congress have the authority to establish the bank? maryland law unconstitutionally interfere

with congressional powers? chief justice marshall's important opinions for the court memorable lines, including that the power to tax destroy.the power to and he also says that unlike the articles of confederation, the 10th amendment to the constitution doesn't include the word expressly. and this is evidence that the constitution doesn't limit congress to doing only those specifically listed in article one. you have called mccullough the most central case in our constitutional cannon. you have said i teach my student beforeugh and maryland marbury versus madison, because i think mccullough is a better of legal -- example of legal craft. tot do you want our audience know about it? >> so constitutional law isn't just about what the rules are. what congress can do, what congress can't do, what the president can and can't do. what questions are important,

but even more important is the how questions. do you do constitutional? how do you make a constitutional argument? what counts? only judicial precedent? what about text? what about the history? the original intent of the constitution? what about the structure of the constitution as a whole? is a beautiful example of all the different tools and techniques of proper constitutional analysis. holistic constitutional analysis being brought to bear. want to teach -- i want to teach my students more than anything how to make arguments. is a great place to start. >> wow! high praiseso have for mccullough. in this books, the constitution, introduction, you say that it the court'se for decision to uphold the affordable care act. come toabout how it's such a broad interpretation of

national power, which has jackson's although veto stands for the proposition that the separate branches have interpret the constitution on their own. >> you wouldn't think that the case about the taxing of a bank exciting reading, but it really is. this is a controversy that goes broad thet of how national government's powers are to legislate for the country. to hamiltonback versus jefferson. i think i've seen this debate jefferson,ilton and re-created in the musical "hamilton," right? any rap here. >> good! [laughter] >> but john marshall, in the constitutionality of the bank of the united states argumentsplagiarizes that alexander hamilton made to george washington to convince to that the powers granted congress should be construed basically for all their works, right? necessarydea of the and proper clause means not that there are powers beyond the but that the constitution grants congress a

broad sphere of powers. to create a national bank isn't one of the powers.ally enumerated but their powers to regulate commerce, to regulate commercial affairs, bankruptcy. so the creation of a bank of the united states was necessary and proper for carrying into execution the other broad grants power. he is right. that really is foundational to nearly everything that congress has done. many people think congress has gone too far. today'sof controversies, in terms of how broad congress's powers are, go back to the precedent of mccullough versus maryland. of the another aspect case too, which is the one where you hear this, the power to tax power to destroy. the state was taxing the operations of the bank of the united states. if the bank -- if federal instrumentality is constitution, a state can't interfere with it, under the supremacy

constitution. national law beats inconsistent state law. and i think mccullough is a wonderful case. it's foundational for not only how broad congress's powers are but the relationship between the government.ational in fact, you can see the roots againstln's argument session in the argument why it is unconstitutional for the states to interfere with the operations of the nation. >> wow. i'm so attempted to take another this.on i just want to make sure we get through all 12 cases. that.d luck with >> i'm going to resist temptation and we'll leave time for questions afterwards and we can come back, if we need to. okay. time for another amendment and a really important case. this is a big one. ladies and gentlemen, the 14th the constitution turns 150 this july. it is the cornstone of the constitutional achievement of

the civil war, after lincoln a new birth of freedom at gettysburg. no state shall make or enforce any law which shall the privileges or immun ties of citizen -- immunities of the united states, nor shall any state deprive any person of life, liberty or due process oft law. that's the due process clause. within itsy person jurisdiction the equal protection of the law. that's equal protection clause. case we're talking about now is the civil rights cases, 1883, the civil war is over. it's time for reconstruction. and the centerpiece of the achievement of reconstruction is the civil rights act of 1875. sumner is so committed to this bill which would forbid discrimination in places of public accommodation that on his deathbed, he says, my bill! my bill! them forget my bill! ah...

expires.he just a few years later, in 1883, the supreme court strikes it itn and holds unconstitutionally exceeds congress's authority under the 14th amendment. there's an amazing human story in this case that i'm sure we'll series.the but justice harlan, who writes writer'ss dissent, has block. he doesn't know what to say although he's so upset by this 14theration of the amendment. his wife finds that the supreme court, the silver inkwell, where tawny wrote the dread scott saying thatfamously african-americans have no rights bound tote people are respect. she puts the inkwell on harlan's deathbed. church.me from he realizes that it's taney's. overcome by if spirit, he writes this spectacular dissent and predicts willsome day the decision be viewed in infamy.

that's the civil rights case. much to say about this. but i want the audience to understand the legal stakes. what grounds did the majority hold that congress lacked the power to pass the civil rights act of 1875, and what was the grounds for harlan's dissent? to start with harlan's dissent. what a name. marshall harlan, i think channeledt better john marshall, because what did john marshall say in mccullough? congressold you, should have broad power. the constitution doesn't say bank. doesn't say air force. it doesn't say individual mandate. congress should have broad power when implementing the which theoses for constitution was established, at the founding. what's that purpose? national security above all. and a bank is useful for national security. are helpful to win wars.

and marshall mentions that in mccullough. federale civil war, the government is basically given a new focus.nce, a civil rights. amendment. end slavery. and second clause says congress shall have power. the language used is congress shall have power to pass appropriate legislation. appropriate is actually taken from mccullough versus maryland. 13the framers of the amendment ending slavery want congress to have broad power to end slavery. 14thramers of the amendment have this language but also at the end of the shouldnt, that congress have broad mccullough power. so john harlan says, what was problem that generated the reconstruction amendments? it was racism in america. and congress has broad power to try to end racism. this sentence that we have up on screen says no state shall, but sentence, isthat

is prettyhat actually important. all persons born or naturalized the united states... and subject to the jurisdiction thereof, are citizens of the united states. and the state where they reside. anyone born in the united states is born a citizen, born an equal citizen. all born equal. created equal. that's linked to this idea at channeling jefferson. and if we're all born equal, and congress has power to enforce this, harlan says, congress should be able to prohibit race discrimination in public accommodations. hotels, theaters, all the rest. harlan says let's read congressional power broadly in john marshall and mccullough, reading an amendment languageally borrowed from mccullough. the word appropriate. what does the majority say in response? gee, a public accommodation,

these are owned by private hotels, theaters, inns. railroads. they're not the government. no stall shall. and congress doesn't have broad to regulate a nonstate actor. but remember, harlan says, ooh, the 14th amendment says everyone is born a citizen. that sentence doesn't say, no state shall. john marshall told us to construe federal power broadly. court, 8-1, rejects that. lifetime, why, in my in the lifetime of some of you, congress in effect needed to re-pass sumner's bill that civil rights act of 1875 basically civil rights act of 1964. through,son helps push in honor of martin king and the martyr, john kennedy. and this time, the supreme court 1960's.it in the

described so well how the citizen clause doesn't have requirement. he also says that public accommodations essentially have quasi-public entities even though they're privately owned. believe thatves the majority was rights or harlan was right in these civil rights cases? i can speaknow that for all conservatives here, because i actually think that the civil rights cases were wrongly decided. i'm with akhil on that. more hamiltonian view of the powers. that's the argument usually raised. he captured this pretty well, is aat the 14th amendment is restriction on what state governments can do. okay? 13th amendment prohibited slavery and could reach private conduct. one of the arguments for civil rightse case, the anti-discrimination laws, was that it was enforcing prohibition on slavery. i think the supreme court

rightly said, well, that is going beyond prohibiting -- the discrimination is something from slavery. and the power to outlaw it, slavery, and to enforce the ban of slavery doesn't get you all the way there. endsnk the argument that motels, railroads, where public accommodations and therefore part of the government is wrong. that most -- that the civil rights cases is actually the origin of the idea that the 14th amendment is a what state on governments can do. and there has to be something that really is attributable to the actions of the state. >> here's where i end up disagreeing with the result. congress has the power to pass

enforcing the prohibition on states, denying equal protection. thee's a sense in which states' failure to protect equal is an affirmative ground on which congress could prohibit the failure. step in andld remedy -- it could pick up where the states have dropped off. the mostnk that's persuasive reason for thinking the majority opinion in the cases is actually wrong. i like akeel's point that civil rights act of 1964 is a civil rights act of 1875, revisited or reloaded, as it were. it's interesting that the power on which the civil rights act of was the sustained commerce power, that it was necessary and proper to carry commerce power, which is an argument they rejected or said it could not plausible in 1884.

it's interesting that the civil rightsf ultimately rests on the power of private to regulate commercial conduct and not the power to enforce equal protection of the laws. quite an irony. for relating the commerce clause of article one, which we read to the 14th amendment. all right. 1886.xt case is this is three years after the civil rights cases. periodly, this is not a owned bythe chinese-americans and chinese im francisco the first case to use the equal protection clause of the 14th amendment and the u incomous decision and it is the case there is migration by people to the u.s. during the gold rush.

the city of san francisco waps to close down landriance passes the law which gives a total gets aion over who permit tot issue laundry and although workers have% of the they don't get a single permit and the supreme court unequal enforcement of the law which violates the clause disbtion the wording and the famous words law applied with evil to makeunequal hand so unjust and legal discrimination similar,s the denial of equal justice within prohibition and how on earth did people decide if equality wins during the period when it had few victories. >> one thing i would like to notice since we have this language on the screen is immunities are protection for citizens.

things that are fundamental and important. speech.say free free press. free exercise of religion. the bill of rights but the bill rights might say professor wouldn't that include due process? yeah, it would. why do they say due process. why well shall here is why? carfully, due process protects not just citizens but peppers that would alien, president trump, i mean, my fellow citizens. i am sorry. suns not supposed to be non-pa partisan. know if i have to be. was an amendment not just about protecting citizen's rights but protecting aliens rights. that is why the word person in san that and, and francisco some of the folk blos affected were actually not u.s. citizens who happened to be and thiss from china,

and we today think that what violations equal protection is says whitesw itself are treated differently from or women.men we read it and you are entitled protection of equal laws. and, and that is key. when you read it, equal protection of the laws and about whatever laws coexist have to be enforced way, and this law was not. on its face, it didn't say anything about race, but in the application, the government was treating people with yellow skin different than people with white skin and people of chinese and and different from other types and that is the language and unequal hand and denied the equal protection of law because it was even handed will you on the face but it was

in a completely uneven, unequal way. theike any dispute about correctness which was u incomous. what is the significance today is holding form arely neutral law which may be by discriminatory intent. nos did agreement at all. this is a case outedly about architecture. the san francisco ordinance prohibited or required a special license if you operated a and it a wouldn't building, right? in a wooden building. the problem was in san trans time before the turn of the century, almost all wooden anddings were the overwhelming number of chinese operated laundries were in wooden buildings in this the law itself is a point and jeff neutral on the face but the problem was that it was enforced in a blat annually discriminatory manner that basically only one chinese

landry out of hundreds was granted permission to continue to operate. and, andic, divides the will you, was fined $10 and refused and then had to actually i believe imprisoned corpus he is how it got top the supreme court. love the principle that a law new trillion on the face but if it is discrim na could render that otherwise valid law unconstitutional. >> ladies and gentlemen, we have for 1806, who has heard of it? all right. we know this infamous decision which upheld a law which required separate but equal, supposedly, railroad cars, and if the civil rights cases represented the end of high issuesf reconstruction,

in the era when southern state toothers really begin mandate a kind of american and important because it was overturned and brown education where thurgood marral this read justice john marral this' before and inspiration he argued ferguson and john marshall opinion has come to the one of the growths libertyc statements of and equal tin consti constis tol history. i will read it from. is jarring at the beginning. begins boy making what would us as comments about ki niece americans, suggesting he shared some of the anti-immigrant files then he guess ton say something about white people and says the white to be the itself dominant race in this country,

so it is in terms was prestige and achievement and education and welt and pow, he so i doubt not it will continue to be for remains true to the great hert a.m. and hopeholds of coonh principals city tugsal liberty and beginning but then guess ton say, but in view of the the eye of the law, there is in this country no ruling classnant of citizens, there is no cast here. cast. three famous words: our colorblindn is neither know or tolerates blass class among citizens in respect rights all zit rens are equal before the will you. ok. unpack this jarring combination of nativism and applied with decoration of equal equality comes to civil rights but not apparently political and social rights. dots.'s connect all citizens are equal before

the law what language is he actually not equal protection which is about persons but the missing sentence everyone born in america is important a citizen citizen.fore, equal so that first sentence which theruled scott what is channeling. what is his name? marshall harlan, he is a way, of course, john marshall because, remember, civil rightsat the cases of 1883 were wrongly decide. he was the great desenner. he thought congress could prohibit race discrimination in the railroads. if the so you prem court is of course, law, without a be simple presumption case as mike told you before government says one thing. the states cannot do the other thing. it is the federal that creates a bank. states cannot destroy it. the federal government says no, race discrimination and the state lawthis is a that was undermooning that.

so it is harlan is 178 ply civil rightshe cases of 1803 the congressional been in place nice and easy congress is. congress said no race discrimination in railroads but lost in the of vill ryes cases can of 16 3 sew was channeling john marshall saying congress should give out to probe hibbit this. who was he anticipating thur good marshall who reads ferguson great decent and which the law inecomes brown versus board of education. and i think it is maybe even in he is or does use that roomer used. here is what he said ap amazing equivalent of babe ruth's called shots. remember it is 81. heis alone in decent and says, i predict that this case

seen as another scott. think about the audacity of in decent to say it, and to prove right by think, because we do think, today, that his decep is, really the rating approach but if you are with him. i hop you all are. then, i think we show be with him as mike and i have in the of 16 3 and cases today's supreme court cites the with 1883 andases with strong approval and i think shame on them. >> mike, i want our audience to understand what justice brown's majority opinion. name.as the >> justice brown. >> residents are deep ands are if anyone ejeks to separate but equal that is the african-americans but nothing in her rent in the

segregation itself and with the power of justice har listen's response that everyone knows real purpose of segregation was mainly to egrade and humiliate african-americans and i will ask you was harlan right or still some or originalists who think on originalist groupeds the majorities right. >> harlan was clearly right. one of the most clearly wrong desued pi the supreme court. and it gives instructive that it is possible for haveme court decision to enommous public support and enormous majority support of the flagrantly mi a misunderstanding of the constitution. i think, one of the lessons of plessis versus ferguson. 1806. the civil war sens in 1665 during the reconstruction

period. the early in teller tation of 14th amendment are that the law must the same for the black and for the white. comes from aline case called strouder versus west virginia. there can be no separation distinction discrimination between the racist as a matter law. what is instructive is that by that idea is lost to mayeme court and here provoke an anger ry response and the supreme court feel that's the meaning of the words of the constitution must change with the social at the time. now, that is appealing notion the socialshow changed. and much of the running of brown's opinion in ferguson that is we must read the constitutional to be socially reasonable and in between the times. times hasne of the become seg is goingists and it

versus board of education 70 some years later to the press departments on the basis of the tact that we all know that the law should be same for everyone. i think the lesson of brown versus board of ed kay, the same as lessons the leanood line injustice har decent that was what our constitution is colorblind and any time the government categorize distinguishes or separates on thes sis race that regarded as presumptively unconstitutional. think that i was the original are originalu meaning conservatives you want to adhere to what the civil war era and reconstruction congress actually adopted and this was black proin hia bition on racial discrimination of any sort. >> great. that important principal when we get to the case in just a bit.

but we now, in our thrilling the constitution are going to fast forward to 1660 and to is from walled versus gosh the greatest of the consti us a and it is so to vus due be able ladies and gentlemen to this crucial case involving the right sy, the days became the foundation for roe v. wade, so its the late 166's and connecticut is the only state in that still bands the use of contraaccept sives for married couples. about the human stories behind this case in book the right to privacy and where he describes barnum anden katherine help born's mother and griswolds the executive director parenthood. we learn about those. the question is does the righttution protect the of marital privacy on the come's

ability. >> ok. teach law case about griswold but there are at least arguments for striking down the law. justice william dough also has freewheeling opinion for the majority that is famous for innovation of the numbers formed by im nations from the theous different parts of consti augusts which he says coalesced into a privacy act. chuckle in thee audience and there was chuckle among the law clerks as well dough let'sst read draft because it seems goosy injustice hugo black said the married couples to associate is new he to me, basically. that douglas wag too variousling and the parts of privacy and the first, fourth all the various anticipates and the rit ofnts in cre ating a privacy.

justice john we are hearing john this here a narrow row opinion. grandson of the first. and great conservative says there is priv in the home perhaps rooted in the fourth may be in trucive to enforce the marital proof sy homes inbreak into kays that would rye vie late then there is suggestion and opinion the law is so unusual. the only one of its kind in the the histories of evolved in way that recognized as right under the due process clause of the amendment. s that my quick summary. you will do much better on the usious runnings and tell which fresh any, you find persuasive oar different approach hope to case. a you mentioned this word evolve. then those are fighting words insists thats who

the constitutional doesn't quite evolve. marshall. some people say we must never constitution. some people say he is talking about how it evolved. john marshall didn't believe in evolution. darwin has not where i in the in 1918 john marshall believed the animals in terred by two.two so he is not an evolutionists. he says he shouldn't be. the thought. if the constitution prohibits right of thee constitution, then we have to, you should stickney. it says equal. always do equal even if social changed by the time equal and gosh darn it, segregation is not equal. says istitution also don't think we should ever evolve away from core rights and the constitution in the 9th amendment when it comes to the

federal government in the or the clause when it comes to the 4th amendment toward the right. there may be more rights than mentioned andy not less, but more. then the question is how do you find those extra ones as additional ones? equal meaps equal. was not the segregation equal so it is validateed if there are more rights how do we them. here john marshall harlan did have an idea. at statelook practices, state constylingsance on the facts of griswold no state other than my home state connecticut had made it a crime for married couples to use contraception in the home. -- it was a right. we can look tot the decoration independence, state practices, state on citytutions to provide more right rather than less. the person who first taught me

the keysage was john marshall harlan the youngers statement that no state other than did this and that is y it was, it is a clear right. article in the new republic by one of my former students named rossen. [laughter] [applause] u inspire med to dig into the the amendment then come up with the means of which rights and there are some rights that are protected even though they not tem you how doesn't to identify the right so important, ladies and gentlemen, viewers you planner in termtitutional tation so he has been criticized conservatives from rob better

court nominees and he said it was correct so i ned to tell audience do you think gris bald is correct under any approach and if so which is correct or flatly wrong. this is going to keep me from being confirmed. i agree the results. all right. i tried to get them to come to therealization that constitutional doesn't grant a right to everything you think would be a good idea and doesn't prohibit everything that is a bad idea. objective meaning and that is our bedrock and foundation rights. classicgriswold is a case of a result seek persuasive and not finding it. injustice dough let's opinion,

he cites the first amendment anddom of speech right toon for the contrasense. that is stretching things besides the third amendment to not have soldiers in your home. supports it, too. the now the amendment against unreasonable searches and going thend keeps fifth amendment, the ninth rulement which i is a symbol that the bill of rights dunn rightsay the state law and extrapolates to the idea it would be a really good right. ok. one of the best standard lawyer that you are all taughts the text doesn't support you. are the of ob stract text of bugger principal. the, you intern operate principal and you read it back to the text in order to produce the results. it is hand raising. doing that.rs hold ton the wall let or the purse because they are trying to

pocket.r think nobody nominated to the supreme court today whatever say. so unsafe from that job, at least, it is ok. but it is interesting how the of the result has driven and to some extent distorted our approach to constitialal running now most actually support the result and griswold versus but i think jeff is right, that becomes a croatianprop for the of a broad ranging right to privacy even to creating abortion rights. at that point, people say, now wait minute where did the right to abortion come from. the ninth amendment. the first amendment. privacy sustain a constitutional right to abortion

i think by the time you get to in 1973 you look back at griswold in 1960 and say is probably where constitutional running took a doe sighs ofly to a approximately sy driven as opposed to a text driven approach to constitutional law. >> what is another say about griswold. for your courage in embracing the result that as you say no nom kneel the supreme to do today and ladies and gentlemen, learn about those method ol le is distinguishable to between the approach and harlan and focus on the fourth the idea thatthen certain outlier laws may be done. s.a.t. a proch a fancy word. when some books, some laws are outliersoks and total in the history trand digs evolved in the way they should down or entertain the possibility that mike is right

badies walled was simply constitutional law. turncontraception we now to the death penalty and we are going to talk about a case called greg versus georgia from 1906. penaltyy of the death and its day ever the supreme one becausematic the supreme court moves within the space of less than a decade holding in the georgia case in 1972 that the death penalty is categorically unconstitutional to a few years to the backlash to holding in glag the georgia death isalty statute constitutional and is not cruel thenusual punishment under amendment. about the case and the greg case and america's unwritten constitugs and you say the latease study in

1960's actually executions got courto and then, the seemed to hold the death penalty unconsti augusts about but statess and 35 date pushed back than the court responded and greg by upholding the death penalty. was it about that and right for the court to be apparently responsive to this opinion?public >> well, let's again connect dots. think gris wall is right. think row is problematic. what are the difference ifs here is one. there was one state. the weird outliers state. marriede it a crime for couples to use contraception and the court struck down an odd law this was really out of the sync with national norms and which i an idea what is fundamental in america. learned from the court struck down the laws of about 48 of the 50 states. 48 or sov the states were apt.ow come ply only new york, of all the state,

standards.etro's one case striking down one law. another case, all the laws. be able to show something pretty clearly in the constitution. the, now, let's pick up death penalty the constitution unusual, crucial and unusual. that may be invitation's account and at the time of the founding not unusual to put pick oc death and over time, actually, a bunch of states say, extremet seems a bit and at certain point pickpockets to death becomes unusual and and unusual therefore may be unconstitutional in 1972 this was year in which no one was executed in america. convicted. were of death penalty offenses, lots of people on death row, but no and the courted thought, we are civilized now it become unusual we proclaim

it is unconstitutional t. that was 191 during the approach. one of the reports known is it the it difficult to impose capital punishment and actually the american people were not there and they pushed back tre mens doily after the case in whole round of nu capital punishment laws and the backtrack in 1976 burr i think actually plausibly is, to look atnt actual state practices is a withinlyack is den unusual and once a whole bunch of states recently not a long ago but recently passed new death penalty statutes and that and evidenceation about a national ideas about what is fundamental or not so counting is actually a way of sometimes thinking abouting two things, one, if is something in the constitutional you enforce it whether it is poplar or not.

am with him on that. is not eg equal. but fits not a right. believe there are other rights and we can look at state sometimesor that and the text of the constitution itself may unvit us to look at rack is a word like unusual. main a word like reasonable may social norms.e to that is the answer. >> great. >> my crucial question guess law school toothbrush dee-dee baits. the consti suggestion evolve when it comes to the eighth amendment. the late justice scalia said a practiceng whether cruel or unusual it may be stateriate to look at the constitutions to see if they have come to reck niz the look is today that was not at the the framing and that sense, is there any state vote counting thats with appropriate the courts between greg and

fermin or does the meaning of the eighth amendment remain unchanged. >> well, that is a great question. actually, very hard question. fau good faithful interpreter you still reck fly some provisions that have meaningelatively clear like what is the president has to be 36 year of age. means probably 35. there are other provisions of areconstitution if you faithful to the original meaning, the original meaning has range. like architect late a standard as opposed to a strict rule. it is interesting question. i am not expert on the eighth amendment. interestings question whether rule are cruel termnusual punishment was of art that had a limited specific meaning. read good article arguments a prohibition on cruel

in novations that that was understanding. if you think that cruel and ansual means that it is unusual penalty today, then i think there is room consistent original meaning for a practice to have become unusual was not unusually formed. i recoil a little bit about the court in 1972 counting in 1976e direction then counting social backlash in changing the interpretation of constitution there is something unsettling about a wet thater to the wind constitialal and the supreme court does follow the election returns, right? still, that won't be a would exclude for provision that is standard it is the framers in adopting a constitutional provision meant forntended or that provision to create running

room and for different in teller it is of the time and actually conservative to the constitution record that running differentrence and result at different times. >> thank for that. affirmative action. did you pay attention ladies and gentlemen? the dath penalty now it is time for affirmative action. will talk about california. is 1978 and allen sues the university of california after denieded a mission to the medical school after discovering seats for reserved people of color. he charged reverse discrimination and the question a violation of the 16th amendment equal protection act of the civil rights 1964 which as he said earlier the acts the promise of of 1970 and forbids

discrimination on the basis of race. there is no single majority opinion four of the justices say quote to system slights the civil rights ant of 1964. the dekenters say that the use higher is ok in education and as long as it is used to help african-americans or degradetigmaty them and the key vote is casts saysstice lewis powell who that ridged racial quo toteses a protection of equal clause but using race may be permissible because diversity and in the university arena is permissible goal under the first taking race into account azhar vard college did was permissible. there was muzzled opinion who if anyone was right. grounds for upholding

apirmtive action would you give? to, when was used young, you know, now he, justice pluses are ok. quotes are not. of course we know in the long run. pluses approximate quote tows and you know, just when i was, when i was 20 years old. about mo mouth off fath other something. as i got older, my dad has dot gotten smarter. i feel he the same way about the just is. the sweet spot in a dy cult culture. does it mean for system to against the backdrom so long.unequal for it is the opinion that produced really in a big way into the lexi don idea of diversity which can mean all powell'shings but the injectsthat that really

that and with that said, so to intergrit is different from using the race to segregate. you know, maybe using race to make sure that our great likenal universities look america, maybe that is not quite the same thing as using tries historicallyho have been underclass down and out. that is the argument you would if you were to say affirmative actions ok. intent of the reconstruction and a little unclear and what latethat means 100 years when we're dealing with people and they thought it was ok to do dealingive action and with real slaves who released from bndage ifs that true, 100 it is complicated and today, you asked me if i were writing opinion. wrote a littlei piece with the student in the

republic and you were new republic back then. eye had not. had not. the fellow i co wrote it with. a fellow, prilient student of mine, i later produced him to and now jeff's brother-in-law. if you, you know, you can't to read a little bit more about that. neil and i wrote a piece a which we argued that may be race causes action and ok for awhile at least it is very that was 20 more than 20 years ago and it is a toxic business. into accountrace and brother paul will maybe have more things to say about that. stay tuned. see that episode because that is still a really important issue incur rent america. >> ok.

mike, we're eager for your response. you.t to ask this in the majority opinions current affirmative action cases original justice like justice fight theothers language from justice harlan earlier ourd constitution is colorblind. that theextract from proposition that any classify kissing on thes sis of race and programsve abs prang! is unconstitutional but critics say they are not good originalists because harlan didn't say all were unconstitutional only in regard to civil rights and the constitution color blinked and the farmers did not think the right to go to public schools was a civil right and they said so. versus bard of education was wrong urethan grounds and for that reason, it originalism the cents sti invoke the harlan lan gag in the case.ative action disoffice well, i think it is

going to start out buy i saying he was smarter in the 20's than 50's. we had it right in the time. i actually think that the principal of the constitution and the government may not reg lit or classify or discriminate or distinguish on the basis of ever. there are new instance in which that principal is applied. principal he is the same. i think that you can stick with the principal of justice har reach theecent you right result. peoples did agree on affirmative but i think what is itcinating about the case created 30-40 years of legal confusion. to prove the short summary. four j justices say colorblind. right? set aside slots in a medical school class on the of race.

that is a principal that sounds an awful lot like session is vongest just ised is justice thomas the african-american justice on the supreme court. so they are pure and color mind principled. a versionises adopt in the 50's view which says that can, you can adopt affirmative action. reverse discrimination is categorically different. plusus or a diversity or a is ok. think he was right. isically a bonus if it meaningfullation small quote to and is just a smaller infringement of the same principle.

but the really interesting thing agreed eight justices that the one answer that cannot be right is the answer in the middle basalt will do is row dues confusion. for 40e have seen this years. they still cannot agree as to wide or that in cau give preferences on the basis of race and come up with the decisions in the mid that they will say this is too much. touch. this is touch. this is ok. this isn't. it is just total quagmire. >> well, without settling that we'll now turn, we'll perform and turn to the first i can find my clicker and even if i -- here it is. let's read the first amendment and inspire our themselves beautiful words. congress shall make no law respects an establishment of gn proheb about iting the free exercise there of or

bridging the freedom of speech right of theor the people to assemble. this is a case which reminds us america is a global outlier in that speech can only be banned if it is intended to imminenty to cause violence. i want you to remember that standard because that is the one the supreme court embraced in ran denburg. speech can be bad if it is imminento cause violence nothing short of an emergency can just fy repression words that come from justice louie and inspiring opinion in whitney versus california where he says, that theuse the final end of state is to make men fro develop their vacties the best response

council is good ones and as long as there is time enough nodeliberate then every idea mat are how hateful has to be admitted to the public sphear and there is a huge did he bait today and about whether the first amendment should protect hate speech or recent poll found the may area ty think that does not but when asked you can tell people confidently that the supreme court in pran denburg ever since has said buy overwhelming may corti the first amendment does protect can only allow speech to be banned if it is intended to likely cause the facts arence striking and involved a ku klux actuallyy and a guy gets up ranking a clan uniform at rally and says unless happens to the raciation, white people will and to take revenge prosecutors under an ohio ilminal law which makes it though advocate crime stab sage violent or unlawful methods of

terrorism as a means of alcohol or political reform. the court remarkably holds this speech which is hateful and appalling the and guys at the by the firstcted amendment because it is not dir producingcrying or imminent will you and not likely actionite or produce the but the rally of klan people. hearing hate speech they agree. a remarkable principal. does come from brandi committee. produce it?court is it correct? do you believe it was channeling the virginia and kentucky resolutions are right matter what else should the audience know? >> i am a fierce believer in proud political speech. shelter i don't try to my own students from hearing

critiques of their world, too. why did it take so long? yale is not go everied. it is a private institution. the free speech idea is even broader than the first amendment. is about how we as a society, we actually have to be willing ideas that we may not like. and figure out why we don't like them. we'll sharpen our own views within we hear the other side. now, why it did take so long? story about the first amendment so we heard for exable neal the 14th amendment promise racial weality but that is not what have. and this was only, you know, that only happened later in ronald versus board of education we heard that congress is really authorized sweeping civil rights

initially inourt the 1803 case didn't get it nott and fanly did although on reconstruction power grounds but on interstate congress grounds so i believe that these, thee words were up on screen before, no state shall make or enforce any law which the priv lemmors immunities of the citizen of theness. is there fundal rights. no state can violate things in speech, of rights like press, petition, assembly, oh, it took the supreme court a very catch up to actually congressn general and passes, let me say, actually, congress gives us the first cons the words of the first anticipate and what happens wan decade. to mack itsses a law a crime to criticize it and of 1998 and this act and courts willingly uphold to

there is lot that the constitution actually says and ien courts actually don't finishly um pliment and then finallyer do they finally, finally catch up it to. mike might say that about affirmative action. when he thinks it is proheb bit ap courts are not pro-about now but hopeful that day will come. so what explains that? not unique to hate speech? well, i would say that many the constitialal are truly radical ideas amazing. radical. sometimes as america a long time to actually commitmentsthese and promises that really are in the text and baste reason the the end they proveil in the long run because people take seriously the text of the constitution in the long run because they are great nationalons like the constitution center and c-span

that are detuned so actually reproduce to you the amazing words and rips pells. >> thank fos the plug. like brother paulsen. >> right t. this is a good time wonderfulplug this book by tony more rowe, landmark thes volume 2 which reveal wonderful cases in which you can get one and hear at the national institution center and mike, guess, two questions about brandon berg. thatight that the reason the court recognized the free principle in the '60's and protests is much more arelar and the rust ises sensitive it to. andhe time, the act of 1708 1917 were passed during world war i and the time of the and they were much less poplar. then i want to ask you was prn as originalist matter in the cop city

suggestional matter he is going boston a cool delate in justice brier will speak and library and a brilliant scholar who has where it and piece for the law journal a originalist matter around supposed to protect and it call speech and maybe restrictions on hate speech are ok. i really want to know is he correct. >> that is ok. he is right. i think that hate speech has principal of the freedom 6 speech. if we truly believe in the speech, we have to believe in the freedom of people to express the views no mat are unpopular and how up reasonable they seem to be overamming majority of people short of the line and immediate excitement. this he world after char letsville it is that ready to know where that lune is. and the line that is drawn in

the case is that you cannot punish speech based upon the offensiveness. have to protect the broad sphere. so we are actually both free liberals. i reached that result as a mat policy not only because i like speech, i do like speech. all speech. right. i think it is correct as a matter of the over ridge nal meaning. is true that the purpose of the framers the purpose of the to protectments with core political speech. they think that the words wrote, the freedom of speech, t are brod taper the principal overbroad. they go beyond what societies do and i think it is something true and distinctive to america. well, whether it took supreme court too long to get there, i it could be a fairly debated. the supreme court has not always been a vigorous protect ore of free speech and the most awful

decisions of the supreme court in affirming convictions speech.ageous in fact one of the case mentioned in the book i wrote luke, is a case called dead vers the united states. eugene deb was socialists presidential candidate and the variety of early 1900'sthe and he was basically prosecuted convicted and incarcerated for a harsh anti-world war i policy speech. he major gud that incarcerating a presidential candidate for speech.l the supreme court upheld that. a fascinating question. i am dumb lawyer i don't know if can answer that descriptively.

>> gain gets one million votes. astonishing story. aspiring story of constitutional we'll say evolution but of justices of different perspectives coming to the jeffer somebody and madison and the speeches and the national right that comes from good or nature and not from governments and can't be a freedom of the opinion cannot be reason dodderr government under any circumstance because our opinions of the product of reason and creatures and we cannot al at the the tron the states because it did he even ifs who we are as human beings. >> he wrote a stot student note back then. that is what madison yeah. both are true. >> both are true. all right. amendmentother first speech and involves student protests that is called tink ter versus des moines in 196109 the height of the vietnam errand

to protestsiding what is going on in the public sphere. we are about to have a march on students who are not happy with our current gun in 1969 iticy and and stoutses come to school wearing black armbands to punish and protest the we're and question is can they be suspended by the des moines school district for their armband. they say that this violates their freedom of speech and then 7-2 majority opinion by just just is fortis the court says punneddents cannot be for the opinion and the band is you are gone wish to avoid arguedersy and hardly be that they are teachers should their consuggestional rights of freedom of pech or expression at the schoolhouse gate. a memorable phrase even students do have first amendment rights then that notion is boeing challenged today pi the internet gatewhere the schoolhouse if you are texting at home and

theing that are received in schools and what to make of recent supreme court did hes including those upholding band thatesus on the ground disrupt.t so finally, how important was tinker? correct? whats the court right or wrong to be cutting back on that in more recent cases? >> well, this one is personal for me. what i do in part because my parents brought me to philadelphia when i was 11 years old answer went to independence pens hall and made tremendous impact on me, but then, three years later, four years later, i am in high school. then, i, i, i write op-ed for theschool newspaper that principal sensors and my

stood by me. they told me to read the case called dunker versus de moine all about free speech rights of students and i read it me and ially inspired think it changed my life and i story in a chap their wrote in a book called the law land so this, this is a about students, about you know, the next generation all can tell you, for me, when i was inspired me toly take the constitution seriously seriously and it is what the national constitution center is all about least oneee at youngster rig here in the third row so thanks for coming. is all about i think two-thirds of the people who come here on this and daily basis actually are youngsters learning about the constitution me, that is what this was.

>> beautiful story. a president's day with thousands of young people so inspiring. but mike you know, you know, has given us powerful personal story but the recent cases do suggest that students have fewer first amendment rights than adult and justice suggested in a very provocative opinion that as noginal matter, students had first amendment rights at all so was tungar correct or is justice correct? case.ker is a great think love the tinker case. akhil iugh it protected would have liked to have seen high schoold by the principal. but, but, i don't have a story like that. the first jobs out of law school was working in defensive religious freedom for who wanted students to form player group or bible the samefter school on term as the chess club or basket

or whatever it was. thecation we cited other than else was tanker versus des moines. we were not relaying on the freedom provisions by saying look this is just the expression of views and you theses ofcriminate on the fact it is religious speech and so we used tanker the main case. true that the supreme court has been chipping back ob it a couple of times. held on decorum of speech. helping occur within the contexan the speech kind of. and see here to regulate actually. and long hits for jesus case. okay? say what this is a shoddy nosed high school senior a man after my own heart aakhil shows up for, think the

the olympicaska as through town. and dismud from school this day. goes slight pay rid then unfurls the banner thattization bong hit force jesus. he is a kid, right? he is just being a wise acre. there is no message in it. actually up hold the expulsion or the suspension of on thes sis of parade.s at the now i know more like his speech than when i was woo like other speech. i think that the basic principle are persons it is a and correct principle and does not limit to adults so kids throughout, go press your freedom of speech in a legitimate bounds of it and can't be disrupted to the school environment and it cannot sper

right of other students to be secured to have a good education. but short of that, you get to express your views and you are protected. so go out and use it. >> beautiful. new york times versus united states. papers case. who has soon the post movie? it is great. go see it. the case is crucial to movie where president nixon is tong the executive authority try to prevent the new york sometimes from publishing the talks. elsburg who worked the department of defense and in have it is graham the publisher of the post who makes a brave decision to pub blush despite the recommendations of male lawyers and she at the same time is trying toking

if fourth what "the new york will do and lower court judge has actuallied stopped the presses for th for the first tin american history the press has been stopped by the exposure of be dangerouson may to national security and then another uj judge refuses to stop the presses then very proud of that and all up to the supreme court and as we learn from the the first amendment protects the right of the new york sometimes to publish the wrote then justice black one of the most mer onliable did sessions saying the word security should not be used to the law embodied in the first amendment. akhil what is the legal justice black's holding. correct? and was there a decent kiss on the other schnide. talks aboutndment freedom, the freedom of speech. and the freedom of the press. those are two slightly different things at the time of the framing.

the 14th amendment makes these rights against the states and local governments like des moines, iowa, for freedom of speech comes from freedom of speech and parliament. speak, toere people speak about very broadly and inland.scourse everyone gets to do that because we are sovereign. the parliament system all of us. the citizens. so that is very proud political, experience which is what mike defend. that is the been denburg case. actually meant machine look the prinking press presses.the england, youwas in see printed press used to be

expensive pricey piece of everyone had one. today you all do it. thelabtop and you know then was veryk big heavy piece of equipment. englandrnment of thought he could license it.

where the d-day invasion was going to be.

getting a quarter -- court order is not only a first amendment violation, but a separation of powers. the president was asking a course -- the court to write a law to give us a casework congress had written a law and we might come out differently. there had been cases on that. there might have been the case where the new york times disclosed our intelligence operations, something about the wiretapping program. say what you -- what you will, the disclosure of the intelligence gathering information did violate the criminal statute and it is an

open question whether you could presstly prosecute the for disclosing a vital secret. i think the new york times case whereeated an atmosphere we do not go after the press for publishing things even where the -- >> we have two more cases. the sixth amendment, in all criminal prosecutions, the accused will enjoy the right to a speedy trial. our case is gideon versus wainwright which held that criminal defendants have a right to an attorney even if they cannot afford one. if you want to learn the stories, read anthony lewis is book gideon's trumpet, which

inspired people to go to law school. gideon, who and writes his own petition to the supreme court, saying he had a right to a one andnto getting being re-tried and being found innocent. i wish i could take out lewis's book, but i'm going to take out the kindle. ann i read it, you have incredible sense of the journey gideon travels. after nearly two years in the state penitentiary, getting was a free man. there were tears in his eye -- eyes and he trembled more than usual. his half-brother, and air force sergeant who was coming home from japan would adopt his children.

do you feel like you accomplish something, a newspaper reporter asked? >> i did. -- how does that square with the sixth amendment and was getting correct? counselys the right of and after the 14th amendment tends to apply against the states. the counter is only if you can pay for, not government appointed counsel to read it is not so clear in the founding. it is true that in capital cases in america, the government pays for counsel, but in noncapital cases it didn't. on the other hand, in a noncapital case, you did have

the benefit of legal counsel to read that was called the judge in the judge would look after your interests. oft actually was a form government sponsored subsidize counsel. thattime, it became clear the judge cannot be both the for thend the coach defendants team to review can't wear both have to want, so one idea is changing the purse isolate in which the government provides counsel. that is one argument. here is another argument. the constitution provides for due process which is about their procedures and there is an intolerable risk of unfairness

that in innocent person could actually be found lt, not because he is guilty, but he is not learned in the law and he can't defend himself well. there is a risk that someone will be convicted not because they're guilty, but because they are poor. that is not due process of law and as society becomes wealthier maybe it-- over time, be fair we provide more .overnment resources that is a second argument and one that does depend in part on how the prosecution is changing and how society is becoming wealthier. here is one final point. , 45 of the 50 states were are ready giving all felony

counsel andppointed justice black mentions that. -- 25 states filed an amicus brief in the case. 22 of them on behalf of clarence , mostideon, so actually of the states were very much on board with this principle and at see john marshall harlan issue with this one as well. >> i heard a lot of evolution in their. i heard accounting and government changing. matter, at theal

time, some states banned defendants from having counsel anause of the vestiges of old system where there was no counsel and you were not sworn under a and people were not allowed to testify on their own words. at the very least, they were trying to allow you to have counsel and you could of order to read >> was the court correct? or was getting wrong question mark >> getting was right and i think the principle is actually a pretty simple one. ands still arguable debatable. the right to counsel is am affirmative right. it is not merely a right to have government for bid -- to for video from having a lower, but a right to have a lawyer and i think it is an entirely plausible reading of that for someone who cannot afford them -- afford one.

case, the fourth amended. the right of the people to be secure in their persons against on reasonable searches and seizures should not be violated. the central idea is to repudiate the general warrants that sparked the american revolution. at the time of the phrasing, you had to break into someone's house to violate the fourth 1980's in ad the withoutsion said that physical contact, there was no fourth amendment violation. in that case, wiretaps were put under a sidewalk curator >> in

his visionary dissent, he predicted ways may be possible where it is without physically possible to and are the home -- enter the home. readingted mind technology. because heficant said the fourth limit -- the protectsendment people, not places. who remembers phone booths? you used to have to go inside them and closed the last door and talking the phone. man closelyid the

door and expected a reasonable amount of privacy. subjective expectation of privacy? it seems really circular that if the governor -- government says we will track your gps devices door-to-door, then your expectations of privacy are -- youhed in this term have written so powerfully about the fourth amended. was it correct as an original matter? who had the better opinion, justice stewart orcutt justice stewart orustice justice harlan? >> i have a broad understanding

of what counts as a search or seizure triggering the fourth amendment. in the samete live physical universe. people can be introduced on them without physical trespass using electronic surveillance techniques, so i like the idea of a broad reading of search and seizure. i would say when you read the words of the fourth amended, all it needs is it has to be reasonable. the court says that there has to be a warrant so i don't think it is true. ,etal detectors and airports they don't have warrants. if you are stopped and frisk on a street, that does not have a warrant. i held a broad understanding of what counts. ishink all that is required

reasonableness of a warrant. the warrant that is generated itsr the case, wiretaps for -- wiretap warrants. i don't love the idea of courts acting in secret. where i ame is really kooky. the courts did not believe in an exclusionary role. if actual evidence of guilt was found, here is a quote from a famous case. it matters not how you get it, even if you steal it it would not be admissible. obviously followed that the

government violated the fourth amendment. that.nder ever thought no court in america, state or -- no court in america ever excluded evidence in an exclusionary rule like way an entire century after the declaration of independence. the only reasonableness that is theired -- i don't love exclusionary which does not help you if you are innocent because if your instant, they don't find anything and they still intruded on you. i prefer a regime which is the founder is urging, when you are intruded on, sue them for damages on, have a jury decide

and the more innocent you are, the more you recover and good for you. electronic privacy cases have been unanimous. the courts have held that putting a gps device or seizing their cell phone dilate the fourth amendment. but focus on private property violations. a guywalked into -- onto driveway and stuck a gps on his car. was there a violation, with the wrong? >> i think if you are wrong about the conservative justices thomas some of them have found or commitment violations. one of my aber fourth amended -- is written by

justice scalia. there's never a more pure or meaningful text from justice scalia. use ofs a case about the infrared technology to look into people's houses and the question presented was whether that was a search. he said the fact that it was not a technology known at the time does not alter the fact that it is intruding into the areas of the home. it is a search of the home. it matches the literal words of the fourth amendment. i think similarly, to seize somebody's phone conversations is a seizure. sure it was not a technology known at the time, but it is an illustration that the constitution's terms have new

instances that fit into new categories. i think from an originalist point of view, he is clearly right, that wiretapping some of these conversations is a search. i actually agree with an astonishing amount. it is a prohibition of unreasonable searches. not all searches require warrants. the fourth of them in itself is not provided an exclusionary. the fourth amendment is traditionally about damages for intrusion on your rights, not about excluding evidence. there's really no clear textual police's error or mistake or even willful mistake should result in the exclusion of evidence. they should be sued for damages,

but that is not why the guilty should go free. >> this is a wonderful place to end. >> it shows two old friends with very different approaches. as you remind us, justices like justice soweto and justice scalia may differ on the methodology in fourth in a cases because they have different views about how the constitution should be translated in light of the technologies. ladies and gentlemen coming here is your homework as you get to enjoy this incredible series of 12 landmarks cases. i want you to dig into the text of the constitution and i want you to download the national constitution center's interactive constitution which the app store.

it is an inspiring civic and educational beat and it will get you ready for the cases. i wanted to read the opinions. you don't have to read them all, but you can skim. amazing inspiring lawyers on both sides who made their documents and at the end, make up your own mind and be open to the possibility of opening -- you might think of searches of the conversations are a bad idea, but the fourth amended allows it. -- recognizing that it is made for people that are -- with fundamentally different points of view.

and is what c-span is about why we are so thrilled to share it with you. see you next week. thank you so much. [applause]

series,n's history landmark cases beginning fedora 26 that 9:00 p.m. eastern. us areng this case with sarah peterson, an associate law professor and law professor at the university of arkansas. monday,m are cases live february 26 at 5:00 p.m. eastern or listen with the free c-span radio app. and for an additional resource, there is a link on our website to the national constitutions interactive constitution. the national portrait gallery

in washington, d.c. unveiled the portraits of former first lady michelle obama and former president barack obama. after an hour. >> ladies and gentlemen, please welcome kim sajet, the director of the smithsonian's national portrait gallery. [applause]