reflecting back to me love and a wase of my hope is that i having to make preparations, that someone or something must be there and i felt that way. sunday that it caught eastern on c-span. 8:00 eastern on c-span. up next, a preview of the second season of landmark cases. it is part of human stories behind the supreme court's historic rulings. >> i am jeffrey rosen, the

president of the center to disseminate information about the u.s. constitution on nonpartisan basis. that is so inspiring. wonderful live c-span audience you can see the great members of the national constitution center like people around the country are inspired by this nonpartisan mission of constitutional education and believe it is crucially important for citizens to educate themselves about the constitution so american democracy can thrive and survive. in this mission, we are so excited to be partners with c-span. we have a wonderful collaboration a few years ago, landmark cases which described the human story behind some of the most important supreme court cases all times. that series was inspired by a common group death ruth bader ginsburg made at event a few years ago where she said how inspiring it would be to hear those human stories so people

can relate to the cases and understand the principles behind them. that series was such a success that by popular demand, we are launching tonight, landmark cases season two. [applause] and we have a series of new cases and we are going to talk about the human stories and to describe them we have a dream team of respondents. i will introduce them in a second. i have to put in a plug for upcoming constitution center events, last week we had this wonderful event with justice ginsburg grade she came back and talked about gender equality and the future of the constitution. we have a following events as part of the town hall program. coming up later this month, we have dean heather birkin from yale law school.

on march 15, joseph ellis and john meacham will come to discuss renewing the founders ,romise and then on march 20 the hard copies of this thrilling new book about an underappreciated constitutional hero, william howard taft. to interview me about our most presidential judge and a man who lost 75 pounds on a paleo diet after he left his unwanted presidency. those of the exciting events coming up. it is my great pleasure to introduce my colleague, friend, collaborator, visionary head of c-span, susan swain. [applause] susan: never follow him at the podium. [laughter] susan: happy presidents' day.

we will talk about the supreme court tonight on presidents' day. what could be more fitting that one of the most important responsibilities the presidents have during their term of office, to select judicial appointees to the supreme court. it is important for this special day. 'swant to echo jeff rosen comments about our relationship. it is educational and nonpartisan mission. so much mirrors c-span's nearly 40-year-old educational nonpartisan public affairs charter. it was a wonderful collaboration. and the 2016 conventions, we set up our studio here and had that view of independence hall. it is so nice to be home. [applause] susan: they were kind enough to toite my colleagues and i the national constitution center boards dinner in washington a few years ago and a story that ruth bader ginsburg told and how

compelling it was to think about mildred and her husband in her bedroom and in the police breaking in because interracial marriage was illegal in the state of virginia. we came back to our office and said why don't we take on the cases that have a dramatic human story? working with the folks at the constitution center and their great scholarship here, we collaborated with a first set of cases and it's hard to know in c-span when we have a hit because we don't have ratings. we had a lot of good feedback and the programs are interactive, so we had a lot of people phoning in and sending us messages. and we liked it. that was the best. what could be better than working with great people and you are getting a lot of positive feedback?

it hit on all those buttons. when the election was over and looking for another historical project, this was a natural for us. and we chosen 12 cases are starting all the way back in 1819 with mcculloch versus withand and we will end up 1978 and the -- case. baciwas when alan challenged affirmative action in the state of california. we chose cases that are not just historically interesting, but also relevant to our lives today. you will look at cases that deal with wireless wiretapping, with civil rights, and with free speech. the right to privacy, things we are still all talking about and debating in our society. you learn a bit of 200 years of american judicial history, but you will also think about how these cases continue to impact our society today. i want to say a quick note about my colleagues.

this is a lot of work for us. we are covering congress was been keeping is active over the past year. a few of us have taken this on as a labor of love. my colleagues are here, could you wave your hands so people see who you are. mark is our executive producer for special projects. o'connell will be death hearst will be working with us on a week to week basis. to line up all the guests and video. randy rohrabacher is one of our field crew and we are sending him out. he is going on location to the personal stories, the hometowns where these cases took place. and getting video, for example visiting chinatown and going to des moines for tinker versus des moines school district. you will see where these cases took place. finally, matt who is our

production assistant and we have a big technical -- technical crew. thanks to all of you. the series starts next monday night at 9:00 p.m. eastern. it will be live for 90 minutes and we will go for 12 weeks. each case that the program. , make itwith questions interactive. just as tonight, your questions really make the discussion. thanks for helping us take it off tonight. i will turn it over to jeff burton -- to jeff. [applause] jeff: susan is a masterful moderator and such a pleasure to learn with her about incredible cases. in for a treat. i hope this will be a fee,ntrated constitutional and on -- an hour or so were we have different perspectives to guatemala through

these cases to learn together and spread the light. ahmar is america's teacher of the constitution. he was my first teacher in law school and he has spread his todom and knowledge thousands and hundreds of ofusands of others by means wonderful technology. he is the author of many books, including the constitution today , timeless lessons for the issues of our era. he is a professor of law and political science at yale and he is america's leading expert of constitutional methodology that --e have called the new original is in for liberals. -- original is him -- originalism for liberals. joining him in this incredible discussion is michael paulson.

distinguished university chair and professor of law at st. thomas, office of numerous books including the constitution and -- which justice samuel alito called reliable, interesting, informative and a lively tool or of the constitution. things according to justice alito from a more originalist point of view. i just learned in the green room that akhil and michael were law school roommates. [applause] jeff: what do you imagine these two brilliant scholars of the constitution did in law school? they debated the constitution so heatedly that they would follow each other into the communal restrooms when they were brushing their teeth and mike would argue that akhil was a

wild eyed living constitutionalist. i hope your teeth got brushed. i'm sure the debates were fascinating. we will continue it tonight. let's jump in. we have to use every moment of this precious time to learn together. we will begin with mcculloch and maryland in 1819. i need my constitutional reading glasses and the text of article one, there may be a clicker. we will see if it works. wonderful. the congress will have power to make all laws which will be necessary and proper for carrying the foregoing powers and all other powers vested by the constitution in the government of the united states. the second bank of the u.s. is created here in philadelphia with branches and a bunch of cities including baltimore.

in 1818, the maryland legislature passes a law passing out-of-state banks and the question is does congress have the authority to establish the bank, did maryland law unconstitutionally interfere with congressional powers? chief justice marshall's important opinion for the court has memorable lines including that the power to tax involves the power to destroy and he also says that unlike the articles of confederation, the 10th amendment to the constitution does not include the word expressly and this is evidence that the constitution does not limit congress to doing only those things specifically listed in article one. you have called him a central case in our constitutional cannon and have said i teach my students mccullough and maryland before marbury versus madison precisely because i think mccullough is a better exemplar of the craft. why is my call is so important and what you want our audience to know about it?

akhil: constitutional law isn't about just what the rules are, what congress can and cannot do, what the president can and cannot do. --t questions are important those questions are important, but more important is how do you do constitution law? have you make an argument? what counts? only judicial precedent? what about history? what about the structure of the constitution as a whole? mccullough is a beautiful example of all the different tools and techniques the proper constitutional analysis, holistic constitutional analysis being brought to bear. i want to teach my students how to do constitutional law, how to make arguments. mccullough is a great place to start. jeff: you also have high praise for mccullough in this book.

you say it has relevance for the court's decision to uphold the affordable care act. tell us about how that is important with a broad interpretation of national power ? you would not think the taxing of a bank would be such exciting -- but it really is. this is a controversial but does controversy that goes to the root of the national governments powers to legislate for the country. it goes back to hamilton versus jefferson. i think i've seen this debate between hamilton and jefferson re-created in the musical. i won't do any rap here. in upholding the constitutionality of the bank of the united states basically plagiarizes arguments that alexander hamilton made to george washington to convince him that the powers granted to

congress should be construed basically for all they're worth. that the idea of the necessary and proper clause aims not to bear powers be on the constitution, but that the constitution grants congress a broad sphere of power. the power to create national banks isn't what it was in doing with powers, but their powers to regulate commerce, commercial affairs, banking, bankruptcy. the creation of a bank of the united states was necessary and proper for carrying out the execution of the broad amounts of power. is foundational to nearly everything that congress has done. many people think congress has gone too far. all of today's controversies in terms of how broad congress powers are really go back to the precedent of mccullough versus maryland. the one where you hear this line the power to tax is the power to

destroy, the state was taxing the operation of the bank of the united states. bank, a federal instrument tally is constitutional, then a state can't interfere with it under the supremacy clause of the constitution. national law beats inconsistent state law. i think mccullough is a wonderful case, it is foundational for not only how broad congress's powers are, but the relationship between the states and national government. you can see the roots of lincoln's argument against secession in the argument why it is constitutional for the states to interfere with the operation of the nation. jeff: i'm so tempted to another round on this. i want to make sure we get through all 12 cases. i'm going to resist temptation and we will leave time for questions afterward. we can come back if we need to print time for another

amendment. ladies and gentlemen, the 14th amendment to the constitution turns 150 this july, the cornerstone of the constitutional achievement of the civil war after lincoln promised a new birth of freedom at gettysburg. it says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states. nor shall any state deprive any person of life, liberty or property without due process of law, nor deny any person within its jurisdiction the equal protection of the law. the kay's we are talking about is the civil rights case from 1883. the civil war is over, time for reconstruction in the centerpiece of the achievement is the civil rights act of 1875. charles sumner is so committed

to this to for bid discrimination, that on his deathbed he said my bill, my bill, don't let them forget my bill. then he expired. he passes, and yet a few years later in 1883, the supreme court strikes it down and hold its unconstitutional. it exceeds congress's authority under the 14th amendment. it is an amazing human story in this case. justice john marshall harlan who writes the dissent does not know what to say here, he is so upset by this evisceration of the 14th amendment. at the supreme court the sinker -- silver ink well where roger tawney wrote the dred scott decision, infamously saying that african-americans have no rights that white people are about desk bound to respect. she puts the inkwell on his desk , they come home from church and

he finds it, realizes it is tawney and suddenly he writes the spectacular dissent and predicts that someday the decision will be viewed in infamy. that is the civil rights case. i want the audience to understand the legal stakes. on what grounds does the majority hold the congress allowed to pass the civil rights act and what was the grounds for harlan's dissent? akhil: what a name, john marshall harlan. i think the dissent channeled john marshall because what did john marshall say in mccullough? congress should have broad power. the constitution does not say not sayair force, does individual mandate, but congress should have broad power when actually implementing the great purposes for which the

constitution was established. what is that purpose? national security above all and the bank is useful for national security. banks are helpful to win wars. marshall mentions that in mcculloch. after the civil war, the federal government basically gives them a new confidence. a new focus. civil rights. the 13th amendment and slavery and the second clause says congress should have power. the language used is congress shall have power to pass appropriate legislation. the word appropriate is taken from a color versus maryland. the framers of the 13th gave broad power to end slavery. the framers of the 14th had this language, but also language at the end giving congress broad power. john marshall harlan says what was the basic problem that generated the reconstruction amendment, it was racism in

america and congress has broad power to try to end racism. this sentence says no state shall, but right before that thatnce, it is one more actually important. all persons born or naturalized in the united states are -- and subject to the jurisdiction thereof are citizens of the united states. anyone born in the united states or a citizen are all born equal or all created equal. that is lincoln's idea at gettysburg. if we are all born equal and congress has power to enforce this, harlan says congress should be able to prohibit race publicination in accommodations. hotels, theaters, all the rest. harlan says let's read congressional power broadly in the spirit of john marshall and

reading an amendment that actually followed language from a color. the word appropriate. what is the majority say in response? the public accommodations, these are owned by private persons, hotels, theaters, railroads, they are not the government, it says no state shall and congress doesn't have broad power to regulate a nonstate actor. remember, harlan says the 14th amendment doesn't say no state shall, it says everyone born a told us john marshall to construe federal power broadly. lifetime orin my the lifetime of some of you, congress in effect needed to read -- becomes theically civil rights act of 1964 bit lyndon johnson helped push

through in honor of martin king and the martyr john kennedy. this time the supreme court upholds in the 60's. jeff: mike, akhil described how the citizenship cause doesn't have a state actor requirement. harlan also says peters in public accommodations are essentially have the nature of quasipublic entities even though they are privately owned. conservatives believe that the majority was right or harlan was right in this case? i canl: i don't know speak for all conservatives because i actually think the civil rights cases were wrongly decided. on this jeff -- akhil: result. here is the argument that is usually raised. akhil captcha this well. is that the 14th amendment is a restriction on what state governments can do. the 13th amendment prohibited

slavery and could reach private conduct. what of the arguments for sustaining the civil rights case was that it was in forcing the prohibition on slavery. i think the supreme court rightfully said well that is going to be on printing slavery. the discrimination is something different from slavery and the power to outlaw slavery and to enforce the ban on slavery doesn't get you all the way there. , think the argument that inns motel, error. railroads were public accommodations and were part of the government is wrong. the civil rights cases is correctly the origin that the 14th amendment is a restriction on what state governments can do and are has to be something trivial to the actions of the state. her is where i end up disagreeing with the result.

congress has the power to pass laws in forcing the prohibition on states denying equal protection. there is a sense in which the states failure to protect equal rights is an affirmative ground on which congress can prohibit the failure. congress can step in and remedy and pickup or the states have dropped off. i think that is the most persuasive reason for thinking the majority opinion is actually wrong. 's point that the civil rights act of 1964 is the same of 1875 revisited or reloaded as it were. onis interesting the power which the civil rights act of 1964 was sustained was the commerce power, that it was necessary and proper to carry into effect the commerce power. which is an argument they rejected or could not of been

plausible in 1883. is interesting the enforcement of civil rights ultimately rests on the power of congress to regulate private commercial conduct and not the power to enforce equal protection of the law. akhil: thank you for relating the commerce clause of article one which we read for the 14th amendment. jeff: our next case is equal and hopkins. this is a mere three years after the civil rights cases. this is not a period in which the cause of racial equality has many victories before the supreme court. this is an exception. it strikes down laws aimed at closing laundries owned by chineseamericans and immigrants in san francisco. it was the first case to use the equal protection clause of the 14th amendment.

it is a unanimous decision and there is lotshere of migration by the chinese people to the u.s. during the gold rush. the city of san francisco wants to close down laundries and passes this law which gives the board total discretion over who gets a permit to issue laundries and also work as of chinese percent have 89% of the laundries. they don't get a single permit and the supreme court says this is an ennui: -- this is an unequal enforcement of the law. if the famous words are law is applied and administered by public authorities with an equal i and unequal hand sirs practically to make unjust and illegal discrimination between circumstances the deny equal justice within the death --

akhil: one thing i would like everyone to notice. privileges and immunities are protections for citizens. what are basic privileges? i would say free speech, free press, free exercise of religion , stuff in the bill of rights. the bill off in rights wouldn't that include due process? so why do we say due process? because if you look carefully, due process protects not just citizens, but persons. that would be aliens, president trump -- i mean [laughter] the center's most be nonpartisan, i don't know if i have to be. [laughter] an amendment not just about protecting citizens rights, but protecting aliens rights.

that's why the word person appears there. in san francisco, some of the folks who were affected were not u.s. citizens, they happened to be immigrants from china and aed today -- we today think violation of rejection means whites are different treated from -- is when the law says whites are treated different from blacks. it says you are entitled to a protection of equal laws. that is key. when you read it it says equal protection under the law. in part it is about whatever laws do exist have to be enforced in an evenhanded way. and this law wasn't. on face it did not say nothing about race, but in the application, the government was treating people with yellow skin different than people with white skin. people of chinese ancestry

different than other types and that is the language of evil eye and unequal hand. it was an evenhanded law on its face that was being applied in a completely on even way. -- uneven way. jeff: what is the significance today of that a neutral law may be unconstitutional if it's affected by discriminatory actions? michael: this is a case oddly about architecture. the san francisco ordinance prohibited -- or required a special license if you operated a laundry in a wooden building. the problem was in san francisco at the time before the turn-of-the-century, almost all the buildings were wooden. the overwhelming number of chinese outfits were in wooden

buildings and the law itself was neutral on its face. but the problem was that it was enforced in a blatantly discriminatory manner. basically only one chinese laundry out of hundreds is granted permission to continue to operate. law, was fined $10, refused to pay the fine and then had to -- i believe they were in prison and dealt with habeas corpus. that a lawprincipal can be neutral on its face, but if it's discriminatory enforced, that can render an otherwise seemingly valid law unconstitutional. it is now time for plessy versus ferguson, 1896. who has heard of plessy versus ferguson? [laughter] jeff: we know this infamous a lawon which upheld

which required separate but equal supposedly railroad cars. if the civil rights cases represented the end of the high point point of reconstruction, plessy versus ferguson issues in the jim crow era where southern states and others begin to mandate a kind of american apartheid. the case is so important because it was overturned in brown v. board of education where thurgood marshall read john marshall's dissenting opinion in plessy for best for inspiration before arguing plessy versus ferguson. john marshall harlan's dissenting opinion has come to be celebrated as one of the prophetic statements of liberty and inequality in constitutional history. i will read from it because it is jarring at the beginning. harlan begins by making what would strike s as nativist

comments about chinese americans , suggesting he shared some anti-immigrant bias. then he says something about white people. he's of the white race leans itself to be the dominant race in the country so it is in terms of prestige and achievement and education and wealth and power. i doubt not it will continue to be if it remains true to its heritage and hold pass -- holds fast to the constitution. in view of the constitution in the eye of the law, there is in this country, no superior dominant ruling class of citizen . there is no caste here. here are the famous words. our constitution is colorblind and neither knows nor tolerates classes among citizens in respect to civil rights, all citizens are equal in front of the law. help us unpack this jarring combination of nativism and white pride with a declaration

comes toty when it civil rights, but not apparently political and social rights? akhil: all citizens are equal before the law. what languages you channeling? not equal protection which is about persons, but the weight just missing sentence that everyone born in america was born a citizen and therefore an equal citizen. that first sentence which overruled dred scott channeling john marshall harlan, he is channeling john marshall because remember, he thought the civil rights cases of 1883 were wrongly decided. couldught congress prohibit race discrimination in railroads. if the supreme court had upheld that law, plessy would be a simple preemption case just as mike told you before. when the federal government says

one thing, the state can't say another thing. if the federal government says no race discrimination on railroads, the state law was undermining that. harlan simply followed in the civil rights cases of 1883 the congressional law would have been in place, this was nice and easy. congress already said no race discrimination in railroads. but he lost in the cases. so he was channeling john marshall saying congress should be allowed to prohibit this. he was anticipating thurgood marshall, will reads plessy versus ferguson and his great dissent, which in effect becomes law in brown v. board of education. i think it is maybe even this use there he does inkwell that roger tawney used.

here is what he said. if like the equivalent of babe ruth's called shot. he is alone in dissent and he says "i predict that this case will come to be seen as another dred scott." think about the artist did -- the audacity of someone to be alone in saying it and be proved right by history. his dissent is really the right approach. plessy, i with him in think we should be -- in the civil rights cases of 1883 and today's supreme court cites the civil rights cases of 1883 with strong approval. tof: i want our audience understand what justice brown, the majority opinion.

anyone brown said if objects to separate but equal, that is the fault of african-americans, it is nothing inherent in the segregation itself. it would be the power of justice harlan's response that everyone knows the real purpose of what segregation was, mainly to degrade and humiliate african-americans. right?lan clearly are there still some conservatives were originalists who think that on originalists grounds the majority was right? michael: harlan was clearly right and plessy is one of the most clearly wrong cases ever by the supreme court. it is possible for a supreme court decision to have an enormous public support and a norma's majority support of the justices and still be a flagrantly mistaken understanding of the constitution.

of the lessons of plessy versus ferguson, this is 1896. the civil war ends in 1865 and during the reconstruction, the early interpretations of the 14th amendment are that the law must be the same for the black and for the white. i think that line comes from a case. separationcan be no distinction, discrimination between the races as a matter of law. what is instructive is that by the 1890's, that idea is lost to the supreme court and here i might provoke an angry response from akhil. because the supreme court feels the meanings of the words in the constitution must change with the social mores with the time, that is a very appealing notion, but look how the social mores change.

much of the reason for justice brown's decision is we must read the constitution to be socially reasonable and in tune with the times. the tune of the times had become segregationist. it takes brown v. board of 70 some years later to overrule that precedent. on the basis of the fact that we all know the law should be the same for everyone. i think the lesson of brown v. board of education is the same justice harlan's dissent, which is that our constitution is colorblind. anytime the government categorizes, distinguishes, or separates on the basis of race, that should be regarded as presumptively unconstitutional. i think that was the original meaning. if you are an original meaning conservative, you want to adhere to what the reconstruction congress adopted, that was intended to be a black

prohibition on racial discrimination of any sort. jeff: we will return to that important principle when we get to the case in just a bit. we now in our thrilling tour of the constitution will 1965 and theto griswold versus connecticut. it is so exciting to be able to introduce you to this crucial case involving the right to privacy. the taste of it in the foundation for roe v. wade. late 1960's in connecticut is the only state in the nation that still bans the use of contraceptives for married couples. you can learn about human stories behind this case in david garo's superb book about the right to privacy where he describes interplay's between pt barnum and katherine hepburn's mother and the executive

director of planned parenthood. we will learn about those on the episode. the constitutional question is does the constitution protect the right of marital privacy against a restrictions on a couple's ability to be counseled? you can teach a whole law case about this, but there are at least three basic arguments for striking down the law. justice william o douglas has this freewheeling opinion for the majority, it is famous for its invocations of penumbras .ormed by animations which he says: less into a free-floating right to privacy. i heard a chuckle and there was a chuckle among the law clerks when they first read douglas's draft does it seem so loosey-goosey. he thought the douglas was being too freewheeling and conflating of the parts of privacy

second, third, fourth, fifth amendments in creating a freewheeling right of privacy. 'sstice john marshall harlan dissent has a narrower -- harlan the second has a narrower opinion. he says there is a right of spatial privacy in the home, perhaps rooted in the fourth amendment and it might be intrusive to enforce these marital privacy laws. you would have to break into the home in ways that might violate the spirit of the fourth amendment. that thisuggestion law is so unusual, it is the only one of its kind in the country that the history and traditions have evolved in a way that has recognized marital privacy as a right under the due process clause of the 14th amendment. that is my quick summary. unpack the various reasons and

tell us which, if any you find most persuasive or if you have a different approach. akhil: you mention the word involve -- evolve. be -- words for those who say the constitution doesn't quite eve all. john marshall said we must never forget the constitution we are as founding, they say he is talking about how they didn't evolve. darwin had written origin of species then. john marshall believed that animals enter the art two by two. ands not an evolutionist mike says we should not be. i'm half way. if the constitution prohibits certain things, then we have to stick by that. equal, we should always do equal even of social mores change. gosh darn it,and

segregation is not equal. i don't think we should eve all the way from core rights. in the constitution ninth amendment when it comes to the federal government and ninth amendment gestures towards unenumerated rights. there may be more rights than are mentioned. the question is how do you find those extra ones? equal means equal and plessy ain't equal, so it is invalidated. with more rights, how do we find them? john marshall harlan did have an idea, we could look at state practices and state constitutions and on the fact of griswold, no state other than my home state of connecticut had made it a crime for married couples to use contraception in the home or it -- home.

we look to the state practices to find more rights, not less. the person who first taught me that a key passage was john marshall harlan the younger's statement that no state other than connecticut did this and rights why it is a clear is the article in the new republic by one of my form -- former students. [applause] it was you who inspired me to dig into the history and also come up with a principal -- principled means of which rights are unenumerated. it does not tell you how to identify them. that's why it's so important that you learn about the methodology of the constitutional interpretation and decide which one you find most persuasive.

conserved --been criticized by conservatives which says the night -- the ninth amendment should be treated as of it as a inkblot over it. to supreme court nominees up until supreme court justice john roberts was that it was correct. i need you to tell our audience, do you think griswold is correct under any approach? or was it just wrong? michael: this one is going to keep me from being confirmed to the supreme court. [applause] michael: i actually think it is wrongly decided. i agree with the political result, but one of the things i try to get my students to do is to not read the constitution through the lens of their political beliefs. i try to get them to come to the realization that the constitution does not grant a right to everything you think would be a good idea and does not prohibit everything that's a bad idea.

has an objective meaning, that's our bedrock. i think griswold is a classic case of a result seeking a persuasive reason and not finding it. opinion, heouglas' cites free speech as an association for the right to, -- contraception. he finds the third amendment right to not have soldiers quartered in your home, that sort of supports it too. the fourth amendment and he keeps going, the fifth amendment, the ninth amendment which is really the simple rule of the existence of a bill of rights does not take away your state law rights. he sort of extrapolates to the idea that this would be a really good right. one of the standard lawyer tricks we are taught is that if the text does not support you, you abstract from the text a

bigger principle. thethen you interpret principal and you read it back into the text in order to result does produce the result you like. if a lawyer is standing there, hold onto your wallet or purse because they are trying to pick your pocket. , nobodycriptive matter nominated to the supreme court today, conservative, liberal, will say griswold is rightly decided. so i am say from that job. it is interesting how the popularity of the result has driven and to some extent distorted our approach to constitutional reasoning. most people, 99% would support the result. is right, thatf becomes a critical proper the creation of a broad ranging right to privacy, even to creating an abortion right.

at that point people say wait a minute, where did this right to abortion come from? the ninth amendment, the first amendment? how does privacy sustain a constitutional right to abortion? by the time you get to roe v. wade, you'll look back at griswold in 1965 and say this is probably where constitutional decisivelyook a turn toward a policy driven as opposed to a text driven approach to constitutional law. courageank you for your in embracing a result that as you say, no not that no one nominated the supreme court is willing to do today. ladies and gentlemen, be able to distinguish between the douglas approach, the harlan focus on the fourth amendment and the evzio that certain outlier laws might be strike down. but -- fancy sat word,

has said when some laws are on the books and they are told outliers, the history and thattions have evolved they can be struck down or entertained possibility that griswold was simply bad constitutional law. we now turn to the death penalty and we are going to talk about a case called greg versus georgia from 1976. the story of the death penalty and its fate before the supreme court is a dramatic one because the supreme court moves within the space of less than a decade from holding in the georgia case in 1972 that the death penalty is categorically unconstitutional to a few years this, from the backlash of , to holding that the georgia isth penalty statute constitutional and is not cruel or unusual punishment under the eighth amendment.

the cases write about in america's unwritten constitution and you say it is an illustrative case study because actual executions drop to zero and the court seems to hold it unconstitutional. but congress and 35 states pushed back and the court responded by upholding the death penalty. tell us about that and was it right for the courts to be so apparently responsive to the whims of public -- the public? akhil: let's connect the dots, i feel griswold is right. i think roe is problematic. in griswold there was one state, the weird outlier state that made it a crime for married couples to use contraception and the court struck down an audit law that was out of sync with basically national norms which helped generate an idea of what was fundamental. that's what i learned.

in row, the court struck down the law in 48 of the 50 states. only new york of all the states actually met those standards. one case striking down one law and another case striking down all the laws. when you are doing that, you better be able to show something in the constitution. let's go to the death penalty. the constitution uses a word unusual. >> the constitution uses a word unusual, cruel and unusual punishment. that might be an. and a time of the founding it was not unusual to put pickpockets to that. over the time a number of states decided that seems extreme. in a number of states putting it pickpocketed that becomes unusual, maybe cruel and unusual, and then unconstitutional. in 1972 there was a year were nobody was executed.

people were convicted of death penalty offenses, there were lots of people on death row, but nobody executed. the court thought they were civilized, it has become unusual , we proclaim it is unconstitutional. one of the reasons no one was executed was that courts admitted difficult to approve these capital punishments and the american people weren't quite there. they pushed back tremendously in 1972 with a whole round of new capital punishment laws. the court did backtrack in 1976. i think possibly because if the point is to look at actual state practices, is a certain practice genuinely unusual. i hope bunch of states fairly recently passed new death penalty statute spirit that is new information best statutes. -- statutes.

that is new information about what is fundamental or not. thinkingis a way of about two things. if something is in the constitution you enforce it whether it is popular or not. plessy says not equal is not constitutional. if it is not unenumerated right i believe there are unenumerated andts -- if it is not underrated right, i believe there are unenumerated rights. looking at a word like unusual. a be a word like reasonable might invite recourse to social norms. that is the answer. >> my crucial question which goes back to your law school to thrust debates with -- toothbrush debates with akhil. can the constitution involved when it comes to the eighth amendment?

it might beia said appropriate to look at state constitutions and see whether states recognize something is constitutional that was not at the time of the franey. is there any state -- framing. does the meaning of the eighth amendment remain unchanged and should it be interpreted in light of the founding era? >> that is a great and hard question. if you are a faithful original meeting constitutional interpreter you still recognize that there are some provisions of the constitution that have a relatively clear determine it meeting. the president has to be 35 years of age. probably 35. there are other provisions that appear faithful to the original meaning. the original meaning has a range or might articulate a standard as opposed to a strict rule. i think it is an interesting question.

i am not a next work on the eighth amendment. i think it is a good question whether cruel and unusual punishment was a term of art that had a limited meeting. i have read good arguments that it is a prohibition of cruel innovations, that was the understanding. if you think that cruel and unusual means that it is an unusual penalty today, i think there is room consistent with the original meeting for a practice to have become unusual that was not before. when the supreme court in 1972 counted heads one counting and then social back and changing the interpretation of the constitution. there is something unsettling about a wet finger to the wind that the supreme court does following election returns. that would not be a possibility i would exclude for a provision

that is explicitly a standard. if the framers, and adopting a constitutional provision, intended or meant for that provision to create running room and for different interpretations over time, that i think it is conservative and faithful to the constitution to accord that running room different results for different times. >> thank you for that. >> -- affirmative-action? contraception, the death penalty, now it is time for affirmative-action. the case we are going to talk about is regions of california versus hockey. . bakke sues the university of california was denied entrance to medical school. he charged reverse discrimination.

the question is, is this a violation of the 14th amendment equal protections law and the whichrights act of 1964 vindicate the promise of the civil rights act of 1875 and permits discrimination on the basis of race. there is no single majority it decision. watcher of the judges say any racial decision violates the civil rights act. the defenders say the use of race is ok in higher education as long as it is used to help african-americans rather than stigmatize or degrade them. the key vote cast by justice lewis powell who says that rigid racial quotas are a violation of the equal protection laws. using race as a plus factor may be permissible because intellectual diversity in the university arena is a permissible goal. taking race into account, as harvard college did, was

permissible. akhil, there was a muddled opinion, who, if anyone was right? , what are writing bakke grounds for affirmative-action would you give? young i was fond of justice powell. buses are ok, quotas are. in the long run these pluses approximate quotas. when i was 20 years old i used to mouth off about my father. has gottender my dad a lot smarter and i feel the same way about justice powell. as i have gotten older he has gotten a lot smarter. this was the sweet spot in a very difficult culture. what does it mean for a system to be equal against the backdrop of a story that was so unequal for so long, slavery and its

consequences? it is an opinion introduced in a big way into the national lexicon, this idea of diversity which can meet lots of things. that --well's opinion integrateg race to come other is a difference in .sing race to segregate using race to make sure our national university look like america. that is not quite the same thing as using race to keep people who historically have been down and out. that is the argument we make if you want to say a furtive action is ok. the intent of -- affirmative-action is ok. they thought it was ok to do affirmative-action, they were dealing with real slaves just-released from bondage.

very complicated set of issues. today, since you asked if i was writing an opinion. way back when i wrote a piece with a student in the new republic. you are editing for the republic back then. >> i was not. [laughter] >> the fellow i cowrote it with was a brilliant student of mine. i later introduce into jeff -- hama to jeff, he is now his brother-in-law. [laughter] neil and i wrote a piece called fate."'s it said that affirmative-action was ok for a while, maybe limited. that was 20 years ago.

it is a toxic business, taking race into account. brother paulson will maybe have a few more things to say. stay tuned into that episode. >> in the majority and dissenting opinion of current authorit -- affirmative-action cases judges cite the language from justice harlan that you said our constitution is colorblind. they extract from that the proposition that any classification on the basis of race, especially in affirmative-action, is unconstitutional. their critics say they are not being good originalists because harlan did nothing all racial classes are unconstitutional, only in regards to civil rights are our -- is our constitution color brine. they did not think the ability

to go to public schools was a public right, therefore brown v. board of education was wrong on originalist grounds. it was bad original is him these critics say to invoke harlan language. was smarter in his 20's than he is in his 50's [laughter] >> he had it right at the time we were law school roommates. i think that the principle of the constitution of colorblindness, that the government may not regulate or classify on a basis of race ever is the correct understanding. instances in which that principle is applied. the principle is the same. i think if you stick with the principle of justice harlan's dissent you reach the writing on the wall. people disagree on affirmative-action. what i think is fascinating about the bakke case is how it created 30 or 40 years of legal confusion.

four justices say colorblind. you cannot set aside slots in a medical school admissions class on the basis of a race. principal -- they say that is a principle that sounds an awful lot like segregation. for thatgest justice position is justice thomas, an african-american justice. four justices are pure colorblind principles. four justices had a version of akhil in his 50's, which says -- which says that reverse discrimination is categorically different from direct discrimination. that you can give quotas, they praise quotas. the one justice in the middle, justice powell, says quotas are bonus orutional, but a a diversity plus is ok.

i think akhil in his 20's was right. a bonus, if it is meaningful, is a small quota, and a smaller infringement of the same principle. the interesting thing is that eight justices agree that the one answer that can't be right if the answer in the middle, because all it would do is produce confusion. think we have seen that for about 40 years in the supreme court's opinions. they cannot agree whether the principal israel blind or that you can give prep -- is race blind or that you can give preferences based on race. it is a total quagmire. >> without settling that turn to the will first amendment. let's read the first amendment

and inspire ourselves. no lawess shall make establishing the protection of religion or limiting the exercise of, or limiting this speech or the press, or the right of the people to peaceably assemble and to petition the government for a redress of grievances." there is no case that captures our first amendment condition than brandenburg v. ohio, decided in 1969. this is an astonishing case that reminds us that america is a global -- can only that speech be bad if it is intended to an likely to cause imminent if it is-- banned intended to and likely to cause imminent violence. nothing short of an emergency can justify repression.

these are words that come from inspiringuis brandeis opinion in whitney versus california where he says, because the final end of the state is to make men's free to develop faculties, the best response to evil counsel is good ones and as long as there is time enough to deliberate, then every idea, no matter how hateful, has to be in the did into the public sphere. -- admitted into the public spear. there is a big debate today over whether hate speech should be protected by free speech. if you are asked, you can tell people confidently that supreme court in brandenburg has set by overwhelming majority that the first amendment does protect hate speech and can only allow speech to be bad if it is intended or likely to cause violence. the facts of brandenburg are striking, it is a ku klux klan rally. i guy gets up wearing a clad uniform at a rally and says

unless something happens to the race situation in this country white people will have to take revenge. he is prosecuted under a ohio law that says it is illegal to advocate illegal actions as a means to a competent industrial or political reform. the court holds that this speech which is hateful and appalling is protected by the first amendment because it is not directed at inciting or producing imminent mala faction and is not likely to produce the action. it is a willing rally of clown people. they are just hearing hate speech they agree with. and remarkable principle, akhil it does come from brandeis. why did the court and 69 embrace having come out the other way for so long. -- long? do you believe brandenburg and brandeis was channeling jefferson? what else of the audience know?

>> i am a fierce believer in broad political speech. shelter my own students from hearing sharp critiques of their worldview. yale is not governed by the constitution, it is a private institution. the free-speech idea is broader than the first amendment. it is about how we as a society have to be able to -- willing to confront ideas we might not like an figure out why we don't like them. we sharpen our own views and we hear the other side. why did it take so long? the a unique story about first amendment. we have heard that the 14th amendment did promise racial equality, but that is not what we got in plessy versus

ferguson. that only happened later in brown v. board of education. we heard that congress is really authorized to pass sweeping but the courtaws, initially in the 1883 cases did not get it right. it finally did, although not on reconstruction power grounds or interstate commerce grounds. i believe that these words that were on the screen before, no state shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the united states. violate things in the bill of rights like speech, press, petition and assembly. the supreme court took a very long time to catch up to that. passes --, congress congress gives us -- the first congress the words of the first

amendment. what happens within a decade? law not tokes it a criticize congress. the court willingly upheld that. there is a lot that the constitution actually says and courts actually don't initially implement. catchater do they finally up to it. mike might say that about affirmative action. is prohibited and courts are prohibiting it, but he is hopeful that day will come. what explains that? many ideas in the constitution are radical ideas. radical in a good sense. america iometimes long time to catch up to these commitments and promises that really are in the tax. because they really are in the

text, in the end they prevail in the long run because people take seriously what is in the text of the constitution. because there are great institutions like the national constitution center and c-span that are designed to reintroduce you to these amazing words and principles. >> thanks for the plug. mike, -- >> books like brother paulson's. >> this is probably a good time for me to blunt the book by tony morrow -- to plug the book by tony morrow "landmark cases volume two." two questions about brandenburg. right that the reason the court recognized this free-speech principle -- suddenly protest is much more popular and -- of 1917 was act

passed during world war i, those prosecutions were much less popular. , and isdenburg brandeis, correct as an original is the matter? -- originalist matter? the constitution center is going to have a great event. jeff campbell who has written a piece for the yale law journal says the first amendment was supposed to respect core political speech, but some exceptions for hate speech were ok. was brandenburg correct? >> that is a big, complicated question. i think brandenburg is right. i think that hate speech tests to the principle of freedom of speech. if we truly believe in the freedom of speech we have to believe in the freedom of people no matter howws, unpopular and reasonable they seem to the overwhelming majority of people. short of immediate incitement to

imminent lawlessness. in the world after charlottesville it is hard to know where that line is, but the line that is drawn in the brandenburg case is that you can't punish speech based upon its offensiveness. that means we have to protect a broader sphere. akhil and i are both free-speech liberals. i reached that result not because i like speech, i do like speech, i don't like all speech. as ank that it is correct matter of the original meaning of the constitution. it is true that the purpose of the framers, the core purpose of the first amendment was to protect core political speech. i think that the words that they wrote some of the freedom of speech, are broader than the principle. they go beyond what european societies do, and i think it is something true and distinctive

to america. whether it took the supreme court too long to get there can be debated. the supreme court has not always been a bigger as protector of free speech. some of the most awful decisions of the supreme court came in affirming convictions for sedition for outrageous speech. one of the cases mentioned in the book i wrote is a case called deb's versus united states. debs was a socialist presidential candidate in the early 1900s. he was basically prosecuted, convicted, and incarcerated for a harsh anti-world war i policy speech. , incarcerating a presidential candidate for a political speech. the supreme court upheld that. whether it took the vietnam war to break the barrier of national free-speech, i think it is a

fascinating question of a sociological matter. i am just a dumb lawyer, i don't know i can answer that. >> debbs runs for president in 1920 from a jail cell. and gets a million votes. >> an astonishing story and an aspiring story -- inspiring , i will constitutional say resolution, but justice is coming to recognize the insights of jefferson and madison. that freedom of opinion can't be alienated or surrendered to government under any circumstances, because our opinions are the product of our reason. as creatures of the enlightenment we can't alienate our reason to the stage. it defines who we are. that is what medicine -- >> both are true. [laughter]

we have another student speech. it is cultic or versus des moines -- it is called tinker versed a moyne -- versus des moines. students are protesting the war. we are about to have a march on washington by students who are not happy with current gun-control policy. in 1960 not it was the vietnam war and students come to school wearing black armbands to punish and protest the war. the question is, can they be suspended by the des moines school district for their armbands? they say this violence freedom of speech, and the majority can't beays students punished for passive expression of opinion. the ban on armbands is an urgent wish to avoid controversy. be argued that students or teachers shed constitutional rights to freedom of speech or expression at the

schoolhouse gate, and memorable phrase. students to have first amendment rights. that notion is being challenged by the internet. where is the schoolhouse gate if you are texting at home and texts that are received at school. what to make a recent supreme court decisions including those on bannersans saying "bong hits for jesus." how important was tinker? is it correct, and what the court right or wrong to be cutting back on this in recent cases? >> this one is personal for me. in part because my parents brought me to philadelphia when i was 11. i went to independence hall and that made a tremendous impact on me. three years later i am in high

write an op-ed for the school newspaper that the principle censors. my teachers stood by me and they told me to read this case called ines allersus des mo about the free-speech rights of students. i read it, it inspired me, and i think it changed my life. i tell that story in a chapter i wrote in a book called "law of the land". this is a case about students, the next generation. i was a student, and really inspired me to take the constitution seriously, to take rights seriously. it is what the national constitution center is all about. it is nice to see one young person here in the front row. this place -- i think two thirds

of the people who come here on a daily basis actually our youngsters learning about the constitution, and for me that is what tinker versed des moines was. this is a fantastic president's day with thousands of young people. has given us this powerful personal story. these more recent cases do suggest that students have fewer first amendment rights than adults. justice thomas suggested, and a probe -- in a provocative opinion that students have no first amendment rights at all. was tinker correct or is justice thomas correct? >> tinker is a great case. even though it is protected, akhil i would've liked to see you suspended. [laughter] >> i don't have a story like that. one of my first jobs out of law

school was working in defense of religious freedom for high school students. they wanted to form prayer groups or bible studies after school on the same terms as the chess club or the underwater basket weaving club. the case that we cited more than anything else was tinker versed des moines. even though it was a religious freedom case we weren't reminded of religious freedom positions. this is just a fresh and abuse and you can't discriminate on the basis of the fact that it was religious peace. it is true the supreme court is been chipping back on a couple of decisions. there have been greater decisions that have been upheld on the decorum of student speech and whether it is offensive. if something occurs within a curricular context the speech comes more school speech and it is easier to regulate. i disagree with that. i disagree with the "bong hits

for jesus" case. a snotty nosed high school senior, a man after my own a parade in up for alaska at the olympic torch is going through town. they are dismissed from school that day. school,'t show up for he goes straight to the parade and on hurls this -- on pearls this banner that says "bong hits for jesus." they actually uphold the expulsion or suspension of him from school on the basis of what he does at the parade. i'm more like his speech than other speech i disagree with. the basic principle that kids are persons and are possessed with free speech rights is a vital and correct principle.

the first amendment is not limited to adults. kids out there, go press your thedom of speech, legitimate bounds of it. it can't be disruptive to the school environment and you can't interfere with other students rights to be secure and get an education. short of that you get to express your views. go out and use it. the new york times versed the united states. pentagon papers case. ?ho has seen the post this case is crucial to the isie where president nixon using his executive authority to prevent the new york times from publishing these top-secret documents related to the vietnam war. as we know from the movie they have been leaked by someone who works for the department of defense. in the movie the publisher of

the post makes the brave decision to publish despite the recommendations of her lawyers. she is trying to figure out what the new york times will do. lower court judges stop the presses for the first time in american history. in americant time history depresses have been stopped by someone who feels the exposure of the information made and international -- may endanger national security. as we learn from the movie, the first amendment protects the right of the new york times to publish the papers and justice black wrote one of his most memorable decisions, saying the word security should not be used to up -- akhil, what is the legal principle that justifies this is 'sck's -- justice black

holding? the first amendment talks about the freedom of speech and the freedom of press. those were two different things at the time of the framing. the 14th amendment makes these things applicable against state and local governments like des moines, iowa. freedom of speech comes from freedom of speech and debate in parliament. parliament is a place where people speak. they speak about broad political discourse. in england, parliament gets to do that. and america everyone gets to do that because we are sovereign, we are the parliament. that is a very broad political expression, that's what mike and i defend. that is the brandenburg case. , the pressthe press there did not mean the media.

it meant a machine, like the printing press. was -- a printing press used to be an expensive piece of equipment. not everyone have one. -- not everyone had one. century beforea the constitution, it was a big heavy piece of equipment and the government of england thought they could license it and decide who could get a printing press and who couldn't. the freedom of the press was this idea that government should not allowed -- you want, butwhat if the government didn't like what you printed they can punish you after the fact. this came to the idea of no prior restraint.

the government can't license a printing press and have censorship rules in advance. printers get to publish, if they publish stuff that compromises legitimate government interest, there is a possibility of punishment after the fact. we can't stop the presses. in the after-the-fact punishment , you need to understand who is these words.de not just a judge, but a jury. they are going to see what you published and whether that was contributed to national debate or not. the pentagon papers case is a narrower one. i have not seen the movie. it is a great story. stands for the proposition that the government cannot stop the presses in advance. the court acknowledges there is a possibility that once the new york times and washington post

published this there could be prosecution afterwards. they were gutsy to not hold back and to actually publish. they were at risk of after-the-fact punishment under the free press clause, which is only a rule of no prior restraint. the free speech clause was broader. >> that is unimportant wrinkle in the movie. afraidne brown is of being put in jail. mike, is that the correct originalist principle? if so, why didn't the nixon administration try to punish after-the-fact? do you believe that the natural rights section of the first amendment would -- >> that is a good question of whether the first amendment would permit criminal

prosecution of someone for disclosing national security secrets. that is not something that is decided by the pentagon papers case. up on a superfast track. to the time is decided by the supreme court, the supreme court does it in rapidfire fashion. i can't believe a law professor has not seen a movie about the supreme court. there is a range of opinions from the first amendment to absolutists that say the government cannot restrict what the press publishes. 's justice william brennan opinion that they may be able to restrict publication of national security secrets of the sorts analogous to letting hitler's no where the d-day and -- letting

know where the d-day invasion will be. we do not need to decide that because once principle is firm is that the government may not shut down the press in advance. congress had not passed a law authorizing nixon to seek the injunction that he did. get in the court order injunction is not only a first amendment violation but a separation of powers identification. basic give us a case or congress has passed the law and we might cannot different. there might be cases like that. i think there was an instance in the early 2000's where the new our signalsisclosed intelligence operation, something about the nsa wiretapping program.

say what you will about the wiretap program, the disclosure of the intelligence gathering information did file late the specific criminal statute. -- violate the specific criminal statute. it is an open question whether you can criminally prosecute the press for disclosing a national secret. i think the force of the new york times case has created a political atmosphere where, within hugely broad box, we do not go after the press for publishing things even where the statute seems to say we could. >> we have two more cases. the next one involves the sixth amendment. in all criminal prosecutions the accused shall enjoy a right to a speedy and public trial by an impartial jury of the state and will have the assistance of counsel for his defense. our cases gideon versus which held that

criminal defendants have the right to an attorney, even if they cannot afford one. if you want to learn the human story behind gideon and went trumpet," "gideon's which inspired a generation to go to law school. it is an astonishing story. i will ruin it, but to say that gideon who handwrite his petition saying that he had a right to a lawyer ends up getting one and being retried and teeing found innocent. i wish i could take out the book, but i'm going to take out the kindle. i like to read the last chapter of the book when i teach criminal procedure because it is so moving. " after nearly two years in the there wereentiary -- tears in his eyes and he traveled more than usual as he stood in a circle of well-wishers. his half-brother was coming home from japan and would adopt his

children. that night he would pay a last visit to the bay harbor poolroom. could someone let him have a few dollars? someone did. do you feel like you accomplish something, a news reporter asked. well, i did. -- did." the principle that says the state should pay for you to have a lawyer and how does that square with the history of the sixth amendment? why do you think the court so long and was gideon correct? >> it says the right of counsel in the constitution and after the 14th amendment that fundamental right comes to apply against the states. the counter is, counsel only if you can pay for it, it is not government appointed counsel. it is not so clear. it is true that in capital cases in america they have paid for

counsel. in noncapital cases it did not. not noncapital case you did have the benefit of legal counsel, that was called the judge. if you could not afford counsel the judge would look after your interests. the judges paid for by the government. that actually was a form of --ernment sponsored subsidized counsel. over time it came to be clear that the judge can't be both the umpire and the coach for the defense team. you can't playbook halves at once. casedea in gideon is the was changing the precise way in which the government provides counsel, not through a judge, but through a public defender. that is one argument. . as a different argument.

whatever else it says the constitution provides for due process, which is about fair procedures. risk of an intolerable unfairness that an innocent person could be found guilty, not because he is guilty, but because he is not learned in the law and he can't defend himself well in the jury trial. there is a risk that someone will be convicted because they are poor. that is not fair procedure, not due process. as society becomes wealthier more fairmaybe it is to insist that we provide more , especiallyesources because government is pouring more money into prosecution than before. that is the second argument and overhat does depend on, time, how the prosecution function is changing, how government it is becoming

wealthier, how societies becoming wealthier. the counting point. at the time of gideon, 45 of the 50 states as a matter of state law were already giving all felony defendants appointed counsel. justice black's landmark opinion in gideon mentions that prominently. that is the counting idea. even the five network, all of which in the former confederacy, always gave counsel for capital defendants.- they gave counsel to a lot of people, not every felony offender. 25 states filed for the amicus brief in the case. 22 of them on behalf of clarence earl gideon. most of the states were on board with this principle. you see the john marshall harlan count and the second counting principle as well. mike come i heard a lot of

evolution in there. i heard counting, government revolution, handwaving. then original matter, at time of the training, some say that banned defendants from having counsel. the vestiges of an old system where you did not have counsel and people were not allowed to testify in their own words. at the very least, the sixth amendment was trying to allow you to have counsel if you could afford it. what the court correct to hold that even if you couldn't afford it the state had to provide one? or was gideon wrong? >> gideon was right. i think the principle is pretty simple. it is still arguable and debatable. i think the right to counsel, the right to have the assistance of counsel for defense is an affirmative right. it is not merely a right not to have government for bid you from having a lawyer, but a right to

have a lawyer, and i think it is in asible reading of that situation where someone can afford one that the government would provide one. >> our last case. katz merce u.s.. it is time for the fourth amendment. of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated. the central idea of the fourth amendment is to repudiate the hated general warrants and writs of assistance that sparked the american revolution. at the time of the friend you had to break into someone's house and violate the property to violet or fourth amendment rights. -- violate their fourth amendment rights.

without physical trespass there was no fourth amended violation. in that case, the olmstead case the wiretaps were put under a public sidewalk leading up to the suspected bootlegger's office and tax said no trespass no fourth amended problem. justice brandeis disagreed. he predicted that ways may be developed where it is possible without intruding into the home to extract secret papers and introduce them in court. the anticipated mind reading technologies which would allow the expression of unexpressed thoughts, sensations, and emotions and said that the fourth amendment should apply without physical trespass. case is significant because it recognized brandeis's insight. katz case involved a phone booth. who remember is a phone booth? that was a fourth of the

audience. the case said because the suspected gambler, katz, close the door and the expressed a reasonable right to privacy. that's reasonable expectation to privacy. -- reasonable expectation to privacy. there is so much to say about that test, including that it seems really circular. government says "citizens we are going to track gps devices door-to-door." our expectations of privacy would be diminished. may determine the future of electronic privacy by --iding whether or not , you have written so powerfully about the fourth amendment and the general warrants. was it correct as an originalist matter?

who had the better opinion, justice stewart or justin harlan -- justice harlan? would you decided on other grounds -- decide it on other grounds? >> have a broad understanding of what applies as a search or seizure. be intruded upon without physical trespassing using electronic surveillance techniques. i like the idea of a broad reading of search and seizure. i would say that when you read the fourth amendment all that it means when there is a search or seizure is that it has to be reasonable. the court sometimes says if there is a search or seizure there has to be a warrant. it is not true for all sorts is best searches and seizures -- searches and seizures. metal detectors and airports are a search or seizure.

if you are stopped and frist that is a search and seizure. i have a broad understanding of what counts as a fourth amendment episode. i think all that requires is government reasonableness. the warrants that were generated z case, wiretap lawrence, were issued in secret. don't love the idea of courts acting in secret. they tend not to act so well when they ask secretly rather than in open court. i don't love that. .ere is where i am kooky the framers of the fourth amendment did not believe in an exclusionary rule. even if the fourth amendment was violated, actual evidence of -- if actualnd evidence of guilt was found that was admissible. this is a famous quote "it

matters not how you get it, if you still it it is admissible." brandeis thought that it obviously follows that if the government violated the fourth amendment the evidence would need to be excluded. no founder said that. no court in america, state or excluded evidence in the exclusionary rule like way the entire century after the declaration of independence. an eclectic set of view. and broad understanding of fourth amendment problems and what triggers it, that only reasonableness is required. i'm not sure that judge issued warrants are the way to go. love the exclusion rule. that doesn't help you if you are innocent.

if you are innocent you don't find anything -- they don't find anything and they still intruded on you. sue you are intruded on, for damages, have a jury decide, socket to them. the more innocent you are, the more you recover, and good for you. [laughter] >> the recent electronic privacy cases have been unanimous. that putting a gps on the bottom of someone's car or seizing their cell phone on arrest about a warrant violates the fourth amendment. the more conservative justices focus on private property violations, that was a problem in the gps case where they walked into a man's driveway and put a gps on his car. was there a property violation to tag on? is right from an originalist perspective. i think you are wrong about conservative justices.

some of them have found for the moment violations when there is intrusion on property. one of my favorite fourth amendment cases to teach is kyllo. justice scalia was relentless on this. this was a case about the use of infrared technology to look into people's houses. the question presented was whether that was a search. he sent 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 that matches the literal words of the first -- fourth amendment. , to seize somebody's phone conversations is a

seizure. it was not a technology known as a time, but it is an on illustration that the onstitution's terms embrace new instances that fit into new category. is clearly right that wiretapping somebody's conversations is a search, a seizure of a conversation. i agree with an astonishing amount of what akhil said about the first amendment. it is a prohibition on unreasonable searches, not a prohibition on searches. not all searches provide warrants. has adopted the wonderfully conservative view that the fourth amendment itself does not provide an exclusionary rule. the fourth amendment is traditionally about damages remedy, suing police officers for intrusions upon your rights, not about excluding evidence. there is no clear textual reason

in the constitution why the police's ever or mistake, even willful mistake, should result in the exclusion of evidence. they should be sued for damages, but i think that is not a reason why the guilty should go free, just because the constable blundered. >> this is a wonderful place to and. it shows two old friends with different approaches may converge on constitutional results. as you remind us, justices like justice alito and scalia may diverge on methodology in fourth amendment cases because they have different views about how the constitution should be translated in light of new technologies. ladies and gentlemen, here is your homework. as you get ready to enjoy this incredible series of 12 landmark to digfirst i want you into the text of the constitution. i want you to download the national constitution center's

amazing interactive constitution which you can find in the app store. you can click on each of these amendments and see the leading conservative and liberal scholars with a thousand words on what they agreed it provision means and what they disagree on. it is an inspiring piece and will get you ready to think about the cases. i want you to read the opinions. every law student learned this, you can skim. read the majority opinion, the dissent, then listen to the human stories. here the brave lawyers on both sides who made their argument. at the end make up your own mind and be open to the possibility of separating their political from constitutional conclusions. the open to the possibility that searches of conversations are a bad idea that the fourth amended prohibits it, or that they are a good idea but the amendment allows it. that is what i learned from akhil so many years ago when i

was in class. that is what you learned as students debating each other. recognizing that the constitution is made for people of fundamentally different points of view. that is what the constitution center is about, that is what c-span is about. that is why we are excited about this series. thanks to our friends at c-span. see you next week. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2017]

>> monday on landmark cases. we will look at the supreme court case mcculloch versus maryland, a case that solidify the federal government pot ability to take actions not specifically given in the constitution. explore this case and the high court's ruling with university of virginia associate law professor, and the university of arkansas law professor. watch it live monday at 9:00 c-span.org,-span, or listen with the c-span radio app. order a copy of the landmark

cases companion book, it is available for $8.95 with shipping. for an additional resource, there is a link on our website to the national constitution center's interactive constitution. in the aftermath of the parkland florida school shooting president trump meets today with high school students from parkland, florida; newtown, and columbine, colorado. we will have live coverage on c-span eastern. tonight at 8:00 on c-span. former housing and urban development secretary leon had an event organized by the young democrats of new hampshire. he talks about the party's agenda. what is clear is that when it comes to ensuring you and your

families can prosper this administration and this congress don't have a clue. we get it. democrats do get it. we have always known what we stand for. number one is expanding opportunity to everybody. behind fdr andea the g.i. bill. it was what motivated my fellow , lyndon b. johnson, with medicare and medicaid. it was the reason that barack obama had the affordable care act passed into law so that more americans [applause] >> mr. castro is a former mayor of san antonio, texas and is

considering running for president in 2020. you can watch the entire program tonight at 8:00 p.m. eastern. the conservative political action conference tomorrow, wite president pence white house counsel don mcgann, senator ted cruz, education secretary betsy devos, live coverage begins on c-span at 10 a.m.. on friday president donald trump speaks at cpac along with kellyanne conway. mcmahon, woulda live coverage just after 10 a.m.. authors and journalists to cover the watergate scandal in the 1970's gathered recently to talk about the era and how it compares to today's political climate regarding the russian