in you. former and a treat secretary discusses nuclear threats facing the u.s. and the world. and the leadership institute talks about conservative is a conservativism and millennials. watched c-span's "washington journal" at 7:00 a.m. eastern. join the discussion. announcer: a few live events to about.u the alliance for health policy will hold a discussion on the shifting dynamics in the health care market. coverage begins at 9:00 a.m. eastern on c-span two. then, conversation on the future of iraq and the middle east. that's at noon eastern from the hudson institute, also on c-span2. a number of russian athletes were banned from the winter olympics. the commission on security and cooperation in europe looks at the russian doping scandal and efforts to combat fraud in sports, including whistleblower

protections. that is at 3:30 p.m. eastern on c-span two. announcer:announcer: now, a preview of the second season of landmark cases, historic supreme court decisions. c-span2 explores the human stories behind the supreme court's first historic rulings. [applause] ladies and gentlemen, welcome to the constitution center. i am jeffrey rosen, the president of this wonderful institution, the only institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis!

and in this educational mission, we are so excited to be partners with c-span. we have a wonderful collaboration -- we had a wonderful collaboration, a few years ago, landmark cases, which described the human stories behind some of the most important supreme court cases of all time. that series was inspired by a comment that justice ginsburg made at a national constitution center event a few years ago, where she said how inspiring it would be to hear those human stories so people can relate to the cases and understand the constitutional principles behind them. that series was such a success, that literally, by popular demand, we are launching tonight, landmark cases, season two. hurray! [applause] and we have a series of new cases. we are going to talk about the human stories. and to describe them, we have a

dream team of respondents. and i'm going to introduce them in a second. first, i have to put in a plug for upcoming constitution center events. last week, we had this wonderful event with justice ginsburg. she came back and talked about gender equality and the future of the constitution. we have coming up the following event as part of our america's town hall program, of which this program is one, coming up later this month, we have dean gherkin from yale law school, how the right and left can unite around federalism. then on march 15, justice ellis and john meacham will come. and then on march 20 -- had i'm so excited -- the hard copies of this thrilling new book about an underappreciated constitutional hero, william taft. judge ginsburg will come to interview me about our judicial president and presidential chief justice and a man who lost 75 pounds on a paleo diet.

after he left his unwanted presidency. those are the exciting events coming up. and now it is my great pleasure to introduce my colleague, friend, collaborator, visionary head of c-span, susan swain. [applause] susan: note to self. never follow jeff rosen at the podium. well, happy president's day. we're going to talk about the supreme court tonight. what really could be more fitting than one of the most important responsibilities that presidents have during their term in office, to select judicial appointees to the supreme court. it's 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, it's educational and nonpart -- educational and nonpartisan 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 it's so nice to be home. [applause] as jeff rosen said, they were kind enough to invite my colleagues and i to the national constitution center board dinner in washington a few years ago. and the story that ruth bader ginsburg told was of loving virginia and how compelling it was to think about mildred loving and her husband in their bedroom and the police breaking in because interracial marrie waoutlawedn is the state virginia. that poignant human story just resonated with us. we came back to our office and said, why don't we take on the cases that have dramatic human stories? so working with the folks at the constitution center and their great scholarship here, we collaborated with a really advised staff on our first set of cases. and it's hard to know when we

have a hit frankly because we don't have any ratings. but we had a lot of good feedback, as did ncc. the programs are interactive. so we had a lot of people phoning in and also sending us tweets and facebook messages. and we liked it. that was the best part of it, because what could be better when you have a job where you're learning something, you work with great people and you're getting a lot of positive feedback? it hit on all of those buttons. so when the election was over and we were looking around for another historical project to do, this was just a natural for us. once again, we have chosen 12 cases. we are starting all the way back in 1819 with mccullough versus maryland. we're going to end up with 1978 and the bochy case. i know, if you all remember that, that was when allen bochy challenged affirmative action in the state of california. we chose cases that are not just historically interesting but also relevant to our lives

today. so you're going to be looking at cases that deal with wireless tapping and with civil rights and with free speech. issues that we -- the right to privacy. things that we are all still talking about today. so you'll learn a bit of 200 years of american judicial history. but you'll also think about how these cases continue to impact our society today. i just want to say a quick note about my colleagues, because this is a lot of work for us and we're busy covering this. this congress is keeping us quite active over the past year. a few of us have taken this on a bit as a labor of love. my colleagues -- can you just wave your hands so people see who you are? mark is our special producer for special 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 on a week-to-week basis to line up all the guests and video.

we have two folks at home in washington. randy, one of our field crew people. we are sending him out. this goes to the people stories. he's going on location to the personal stories, the hometowns of where these cases took place, and getting video, for example, visiting chinatown, and 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. and finally our production assistant. we also have a big technical crew. thanks to all of you. the series starts next monday night at 9:00 p.m. eastern time. it will be live for 90 minutes. and we will go for 12 weeks. each case gets its own program. we're hoping so much to have you in our audience. phone in with questions or end us a -- send us a facebook comment. make it 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]

jeffrey: thank you so much, susan. susan is a masterful moderator. it's such a pleasure to learn with her about these incredible cases. all right. you are in for a treat. i hope this will be a concentrated constitutional feast. an hour or so where we have two of america's leading expert to help take us through these cases, to learn together, and to spread the light. is america's teacher of the constitution. he was my teacher of the constitution. he was my first teacher in law school. and he has spread his wisdom and knowledge to me and to thousands and hundreds of thousands of others, versus -- by means of wonderful technologies. he's the author of many books, including "the constitution today," timeless lessons for the

issues of our era. he is a sterling professor of law and political science at gail. and he is america's leading exponent of constitutional methodology that some have called the new textualism or originalism for liberals that argues that the text and history of the constitution honestly interpreted should lead to results of different political balances. and joining him in this incredible discussion is michael paulsen, distinguished university chair and professor of law at the university of st. thomas. author of numerous books, including, "the constitution, an introduction" which justice alito called solid, reliable, interesting, informative and a lively tour of the constitution. and he approaches things, according to justice alito, from miltonian originalist

perspective, from a more conservative point of view. i just learned, in the green that akhil and mike were law school roommates! [laughter] [laughter] 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 each other into the communal rest rooms, when they were brushing their teeth and mike hil was aue that ak wild-eyed living hil i'mutionalist and ak sure the debate was face

-- 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. we're going to begin with mccullough and maryland. 1819. i need my constitutional reading glasses. and i think we need the text of article one, if -- there may be a quicker -- oh, here it is. let's see if it works. okay. wonderful! the congress shall have power to make all 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. it is the second is created here 1816. in philadelphia. their branches of cities, including baltimore. the maryland legislature passes a bill, taxing out of state banks. and the question is, does congress have the authority to establish the bank? did maryland law unconstitutionally interfere with congressional powers? chief justice marshall's important opinions for the court has many 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 doesn't include the

word expressly. and this is evidence that the constitution doesn't limit congress to doing only those thing specifically listed in article one. l, you have called mccullough the most central case in our constitutional cannon. you have said i teach my student mccullough and maryland before marbury versus madison, because i think mccullough is a better exemplar of legal craft. what do you want our audience to know about it? akhil: 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. how do you make a constitutional argument? what counts? only judicial precedent? what about text? what about the history? what about the original intent

of the constitution? what about the structure of the constitution as a whole? and mccullough is a beautiful example of all the different tools and techniques of proper constitutional analysis. holistic constitutional analysis being brought to bear. if i want to teach -- i want to teach my students more than anything how to make arguments. mccullough is a great place to start. jeffrey: wow. mike, you also have high praise for mccullough. in this books, the constitution, an introduction, you say that it has relevance for the court's decision to uphold the affordable care act. tell us about how it's come to such a broad interpretation of national power, which has prevailed, although jackson's veto stands for the proposition that the separate branches have the power to interpret the constitution on their own. michael: you wouldn't think that the case about the taxing of a bank would be such exciting reading, but it really is. this is a controversy that goes to

the root of how broad the national government's powers are to legislate for the country. and it goes back to hamilton versus jefferson. i think i've seen this debate between hamilton and jefferson, re-created in the musical "hamilton," right? i won't do any rap here. but john marshall, 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 their works, right? but the idea of the necessary and proper clause means not that there are powers beyond the constitution but that the constitution grants congress a broad sphere of powers. the power to create a national bank isn't one of the specifically enumerated powers. 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

of power. khil is right that really is , foundational to nearly everything that congress has done. many people think congress has gone too far. but all of today's controversies, in terms of how broad congress's powers are, really go back to the precedent of mccullough versus maryland. there's another aspect of the case too, which is the one where you hear this, the power to tax is the power to destroy. the state was taxing the operations of the bank of the united states. if the bank -- if federal instrumentality is constitution, then a state can't interfere with it, under the supremacy clause of the 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 states and national government.

in fact, you can see the roots of lincoln's argument against session in the argument why it -- argument against secession in the argument of why it is unconstitutional for the states to interfere with the operations of the nation. jeffrey: wow. i'm so attempted to take another round on this. i just want to make sure we get through all 12 cases. michael: good luck with that. jeffrey: i'm going to resist temptation and we'll leave time for questions afterwards and we can come back, if we need to. ok. time for another amendment and a really important case. this is a big ladies and one. gentlemen, the 14th amendment to the constitution turns 150 this it is the cornstone of the july. 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 immun ties of citizen -- immunities of citizens of the united states,

nor shall any state deprive any person of life, liberty or property without due process of law. that's the due process clause. nor deny any person within its jurisdiction the equal protection of the law. that's equal protection clause. and the 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. charles 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! don't let them forget my bill. and then he expires. just a few years later, in 1883, the supreme court strikes it down and holds it unconstitutionally exceeds congress's authority under the 14th amendment. there's an amazing human story in this case that i'm sure we'll tell in the series. but justice harlan, who writes the famous dissent, has writer's

block. he doesn't know what to say although he's so upset by this evisceration of the 14th amendment. his wife finds that the supreme court, the silver inkwell, where chief justice roger tawny wrote the dredd scott decision, infamously saying that african-americans have no rights which white people are bound to she puts the inkwell on harlan's respect. she puts the inkwell on harlan's deathbed. comes home from church. he realizes that it's taney's. suddenly, as if overcome by spirit, he writes this spectacular dissent and predicts that some day the decision will be viewed in infamy. that's the civil rights case. there's so much to say about this. but i want the audience to understand the legal stakes. on 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?

akhil: so, to start with harlan's dissent. what a name. john marshall harlan, i think the dissent better channeled john marshall, because what did john marshall say in mccullough? as mike told you, congress should have broad power. the constitution doesn't say bank. it doesn't say air force. it doesn't say individual mandate. but congress should have broad power when implementing the great purposes for which the constitution was established, at the founding. what's the purpose? national security above all. and a bank is useful for national security. banks are helpful to win wars. and marshall mentions that in mccullough. after the civil war, the federal government is basically given a new competence, a new focus. civil rights. 13th amendment.

endthe slavery -- slavery. and second clause says congress shall have power. the language used is congress shall have power to pass appropriate legislation. the word appropriate is actually taken from mccullough versus maryland. so the framers of the 13th amendment ending slavery want congress to have broad power to end slavery. the framers of the 14th amendment have this language but also at the end of the amendment, that congress should have broad mccullough power. so john harlan says, what was the basic 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 right before that sentence, is one more that actually is pretty important. all persons born or naturalized in 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. we are all created equal. that's linked to this idea at gettysburg 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. so harlan says let's read congressional power broadly in the spirit of john marshall and mccullough, reading an amendment that actually borrowed language from mccullough. the word appropriate. what does the majority say in response? gee, a public accommodation, these are owned by private persons, hotels, theaters, inns. railroads. they are not government. it says no stall shall. and congress doesn't have broad power to regulate a nonstate actors. 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. but the court, 8-1, rejects that. and that's why, in my lifetime, in the lifetime of some of you, congress in effect needed to re-pass sumner's bill that civil rights act of 1875 basically becomes the civil rights act of 1964. that lyndon johnson helps push through, in honor of martin king and the martyr, john kennedy. and this time, the supreme court upholds it in the 1960's. akhil just described so well how the citizen clause doesn't have a state requirement. he also says that public accommodations essentially have the nature of quasi-public entities even though they're privately owned. do conservatives believe that the majority was rights or harlan was right in these civil rights cases?

michael: i don't know that i can speak for all conservatives here, because i actually think that the civil rights cases were wrongly decided. i'm with akhil on that. i have a more hamiltonian view of the powers. here is the argument that's usually raised. captured this pretty well, is that the 14th amendment is a restriction on what state governments can do. ok? the 13th amendment prohibited slavery and could reach private conduct. one of the arguments for sustaining the civil rights case, the anti-discrimination laws, was that it was enforcing the prohibition on slavery. i think the supreme court rightly said, well, that is going beyond prohibiting -- the discrimination is something different from slavery, and the power to outlaw it, slavery, and to enforce the ban of slavery doesn't get you all the way there. i think the argument that ends inns, argument that

motels, railroads, where public accommodations and therefore part of the government is wrong. i think that most -- that the civil rights cases is actually correctly the origin of the idea that the 14th amendment is a restriction on what state 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 laws enforcing the prohibition on states, denying equal protection. there's a sense in which the states' failure to protect equal rights is an affirmative ground on which congress could prohibit the failure. congress could step in and remedy -- it could pick up where the states have dropped off. and i think that's the most persuasive reason for thinking the majority opinion in the civil rights cases is actually wrong.

l's point that basically the 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 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 said it could not have been plausible in 1884. it's interesting that 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 laws. it is indeed an irony. thank you for relating the commerce clause of article one, which we read to the 14th amendment. our next case is this

1886. is three years after the civil rights cases. generally, this is not a period in which the owned by chinese-americans and chinese immigrants in san francisco the first case to use the equal protection clause of the 14th amendment and the infamous decision and it is the case where there is migration by chinese people to the u.s. during the gold rush. the city of san francisco wants to close down laundries, and passes the law which gives a total digression over who gets a

permit -- if the law applied with evil eye and unequal hand so to make unjust and legal discrimination between persons similar circumstances the denial of equal justice within the prohibition and how on earth did people decide if equality wins during the period when it had few victories. akhil: one thing i would like everyone to notice since we have this language on the screen is privileges and immunities are protection for citizens. things that are fundamental and important. free speech, free press, free exercise of religion, stuff in the bill of rights. but stuff in the bill of rights wouldn't that include due

, process? if you look carfully, due process protects not just citizens but persons. that would be alien, president trump, i mean, my fellow citizens. i am sorry. notcenter says they're partisan, but i don't know if i have to be. but this was an amendment not just about protecting citizen's rights but protecting aliens rights. that is why the word person appears there. and in san francisco some of the folks affected were actually not u.s. citizens who happened to be immigrants from china, and this and we today think that what violations equal protection is where the law itself says whites are treated differently from blacks, or men from women. we read it and you are entitled to the protection of equal laws.

and, and that is key. but actually when you read it, it says equal protection of the laws and in part, it is about whatever laws coexist have to be enforced in even handed 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 -- chinese ancestry different from other types and that is the language of evil eye and unequal hand. they were being denied the equal protection of law because it was even handed will you on the face -- it wasn't even handed law on its face, but it was being applied in a completely uneven, unequal way. any dispute about the correctness which was what is

-- what is the significance today as it is holding form arely neutral law which may be affected by discriminatory intent. this is a case about architecture. the san francisco ordinance prohibited or required a special license if you operated a laundry and it a wouldn't building, bright? in a wooden building. in -- at theas time before the turn of the century, almost all of the buildings were wooden and the overwhelming number of chinese operated laundries were in wooden buildings in this the law itself is a point and jeff point out was 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. he was fined $10 and refused to

pay the fine and then had to actually i believe imprisoned . i love the principle that a law could be new trillion on the face but if it is discrim na toly enforced that could render otherwise valid law unconstitutional. jeffrey: it is now time for plessy versus ferguson, 1896. who has heard of leslie versus ferguson. of plessy heard versus ferguson? 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 point of reconstruction, issues in the jim crowe era when southern states began to mandate a kind of american apartheid. the case is so important because it was overturned and brown versus board of education where

thurgood marshall read the opinion and inspiration before , he argued ferguson and john marshall opinion has come to the celebrated as one of the growths -- celebrated as one of the prophetic statements of liberty consistent -- i will read from it. it is jarring at the beginning. then he goes on to say something about white people. he says the white race deems itself to be the dominant race in this country, so it is in terms of prestige and achievements, and education, and wealth, and power. i doubt it will continue to be for all time, and remains true. he goes on to say in view of the constitution, in the eye of the

law, there is in this country, knows the. dominant ruling class of citizens. here. here arete the three famous words. our constitution is colorblind. allher know or tolerates -- citizens are equal before the law. this, help us unpack nativism and white pride with the declaration of equally quality when it comes to civil rights, but not apparently political and social rights. let's connect dots. all citizens are equal before the language of the law. actually not equal protection which is about persons but the missing sentence here that everyone born in america is important a citizen and therefore, an equal citizen. so that first sentence which overruled scott what is the

channeling? what is his name? marshall harlan, he is channeling in a way, of course, john marshall because, remember, he thought that the civil rights cases of 1883 were wrongly decided. he was the great dissenter. he thought congress could prohibit race discrimination in the railroads. if the supreme court upheld that law, that would be a simple presumption case. states cannot do the other thing. -- noate creates a bank, discrimination in railroads, this was a state law undermining that. cases ofvil rights 1883, the congressional lot would have been in place. congress already said, no race this commission in railroads, but he lost in the civil rights cases of 1883. he was channeling john marshall,

saying congress should be unable to prohibit this. who was he anticipating? thurgood marshall, who reads plessy versus ferguson, and his in effect becomes the law in brown v. board of education. and it is maybe even this case where he does use the anchor well.- the ink here's what he said, and it is the equivalent of babe ruth's called shot. he is alone in dissent. thisys, i predict that case will become to seen as another dread scott. to say it and be proved right by history, because we do think today, dissent is the right

approach. if you are with him in plessy, and i hope you are all are. in the civil rights cases of 1883, and today's supreme court cites the civil rights cases with 1883 with strong approval, and i think, shame on them. jeffrey: mike, i want our audience to understand what justice brown's majority opinion was. justice brown said, if anyone objects to separate but equal, -- the the thought of power of justice harlan's response, everyone knows what the purpose of segregation was, mainly to degrade and humiliate african-americans. was harlan right, or are there some servitudes or originalists

who think on original us grounds, the majority was right? harlan was clearly right, and plessy is one of the most clearly wrong cases ever in the supreme court. it is possible for a supreme court decision to have a enormous public support and enormous majority support. it can still be a flagrantly misunderstanding of the constitution. i think one of the lessons of plessy versus ferguson, this is 1896, the civil war ends in 1865, and in that reconstruction the law must be the same for the black and the white. there can be no separation distinction discrimination between the racist -- between the races as a matter of law.

what is instructive is that by the 1890's, that idea is lost to an angryme court, and because them akhil, response of the supreme court feels that the meaning of the words of the constitution must change with the social at the time. of the reasoning of justice brown's opinion in ferguson is that we must read the constitution to be socially reasonable and in tune with the times. the tune of the times had become segregationists. it takes brown versus board of education 70 some years later to overrule that precedent on the basis of the fact that we all know that the law should be the same for everyone. i think the lesson of brown versus board of education is the same as the good line in justice

, which is thatt the 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 it and with the civil war era we can section congress actually adopted, and that was intended to be a black prohibition on racial discrimination of any sort. jeffrey: we'll return to that important principal when we get to the case in just a bit. but we now, in our thrilling tour of the constitution are going to fast-forward. tour ofa greatest hits the constitution, and it is exciting to be able, this case

became the con -- the foundation for roe v. wade. it is the late 1960's, and connecticut is the only state that still bans the use of contraceptives for married couples. you can learn about the human stories behind this case in the book about the right to privacy, where he describes interplay between pt barnum and katharine , and the mother director of planned parenthood. the constitutional question is, does the constitution protects the right of marital privacy? you can teach a whole constitutional case about griswold, but there are at least three basic arguments for striking down the law. douglas has am o freewheeling opinion for the majority that is famous for its invocation of the numbers formed

by different parts of the constitution which he says coalesced into eight free-floating right to privacy. i heard a chuckle in the audience, and there was a chuckle among the law clerks when they read douglas is draft. the right of married couples to associate in bed, is new to me, he said. he thought of douglas was being too freewheeling. the second, third, fourth, fifth amendment in creating a free-floating right of privacy. john marshall harlan the second has a narrower opinion. the first. and a great conservative, says that there is no right of spatial privacy in the home, perhaps rooted in the fourth amendment. and it might be interested to

enforce these marital laws. you would have to break into the home that might break the spirit of the fourth amendment. in justice harlan's opinion the law is unusual, the only one of its kind in the country. ae histories have evolved in way that recognized marital privacy as a right under the due process clause of the fourth amendment. that is my quick summary. betteryou will do much to unpack the reasons. akhil: you mentioned this word evolved, and those are fighting words for some folks. [laughter] who insist that we, the constitution does not revolve. say,marshall, some people you must never forget the constitution. some people say he is talking about how it evolved. john marshall did not believe in evolution.

darwin had not written the origin of the species and. john marsh and believed the bymals entered the ark two two. mike says he shouldn't be. i am halfway. if the constitution prohibits something, if there is a right in the constitution, then we should stick by that. if it says equal, we should always do equal, even if social mores change. equal, and in plessy, gosh darn it, it is not equal. in the ninthion amendment, when it comes to the federal government, in the privileges when it comes to the fourth amendment gestures toward, there may be more rights than our specifically mentioned, nevertheless, but more. then the question is, how do you find those extra ones, those

additional ones? equal means equal. , so ittion was not equal is invalidated. marshall harlan, the younger, the grandson did have an idea. we can look at state practices, state constitutions, and on the facts 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. an unenumerated right. we can look at the declaration of independence to find more rights rather than less. the person who first taught me that the key passage was john marshall harlan the younger's statement, that no state other than connecticut did this, and that is why is a clear right. there is an article in the new republic by one of my former students named jeff rosen --

[applause] [laughter] it was you who inspired me to dig into the history. , and also come up with the principal means to identify , some rights are protected, even though they are not written down, how to identify those rights. that is why it is so important that you learn about the methodologies of constitutional interpretation and decide which one you find more persuasive. griswold has been famously resized by conservatives. from robert bork who said it should be cheated like it has it inkblot over it, to supreme court nominees, until justice john roberts who said it was correct. justice alito said it was correct. i need you to tell our audience, do you think griswold is correct under any approach, and which of approach is correct? this one is going to

keep me from being confirmed to the supreme court. i think griswold is wrongly decided. i agree with the political result, the one of the things i try to get my students to do, is not read the constitution to the lens of their political beliefs. i try to get them to the realization that the constitution does not grant a right to everything you think would be a good idea, and doesn't prohibit everything that is a bad idea. the text has an objective meaning, and that is the bedrock of our foundational rights. i think griswold is a classic case of a result seek persuasive reason and not finding it. in justice douglas's opinion he , cites the first amendment freedom of speech and association for the right to contraception. that is stretching things. he finds the third amendment right to not have soldiers quartered in your home. that supports it to.

the fourth amend the prohibition against unreasonable search and seizure, and he keeps going, the fifth amendment, the night the minute, which is a simple rule that the existence of a bill of rights does not take away or state law rights. he extrapolates to the idea that this would be a good right. best, one of the standard lawyer tricks that you world talk, is if the text does not support you, you abstract from the text of bigger principle. and you interpret the principal and read it back into the text to produce the results. a lawyer is doing that, hold onto your wallet or purse, because they are trying to pick your pocket. i think as a descriptive matter, nobody nominated to the supreme court today, conservative, liberal, whatever, who says griswold is wrongly decided, so i am safe from that job. how thes interesting

popularity of the result has driven, and to some extent, distorted our approach to constitutional reasoning. 99% with bristol -- would support the result in griswold versus connecticut. but i think jeff is right, that becomes a critical prop but creation of a broad ranging , even toprivacy creating an abortion right. at that point, people say, wait a minute. to abortionis right 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 in 1973, look back at griswold in 1965 and say, this is probably were constitutional reasoning took a turn decisively toward a policy driven, as opposed to a text driven approach to constitutional law.

jeffrey: much more to say about griswold. thank you for your courage and embracing the result. --is something no nominate no nominee to the supreme court is going to do today. that is an approach, it is a fancy sat word. , some laws are on the books and they are total outliers, in the history and traditions have evolved in a way that they should be able to be struck down, or the possibility that mike is right, and griswold was simply got constitutional law. i'm contraception we 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 such a dramatic one .ecause the supreme court in 1972, penalty saying the death penalty is categorically unconstitutional. it is not cruel or unusual punishment under the faith commitment. you write about the firm in case . tell us more about that. was it right for the court to be so apparently responsive to the whims of public opinion?

dots. let's connect i think griswold is right. i think roe is problematic. in griswold, there is one state, the weird outlier state that made it a crime or couples to use contraception. and the court struck down an odd law that was out of sync with which helpeds generate an idea what is fundamental in america. that was what i learned. the court struck down the laws of about 48 of the 50 states. 48 states were noncompliant. one case striking down one law, and another case, all the laws. if you are doing that, you better be evil to show something clearly in the constitution. now, let's pick up the death penalty. the constitution uses the word, unusual, cruel and unusual.

that might be in invitation to count. at the time of the founding, it is not unusual to put pickpockets to death. over time, states say that seems a bit extreme, and putting pickpockets to death becomes unusual, and therefore may be cruel and unusual, and therefore may be unconstitutional. in 1972, there was a year where no one was executed in america. convicted of death penalty offenses, there were lots of people on death row, but no one was executed, and the court thought, we are civilized now. it has become unusual. we proclaim it is unconstitutional. that was 1972. one of the reasons is no one was being executed is that the court was making it difficult to impose these capital punishments. the american people were not quite there, and they pushed back tremendously after the case in 1972 with a round of new

capital punishment laws, and the court did backtrack in id 76. i think plausibly, because the point is, to look at actual state practices is a certain practice generally unusual. once a whole bunch of states, very recently, have passed new death penalty statutes, that is new information and evidence about whational idea is fundamental or not. so, counting is actually a way of sometimes thinking about two things. one, unenumerated rights. plessy its, -- in is not equal. sometimes the text of the constitution itself invites us to look at actual practices.

a word like unusual. maybe a word like reasonable might invite recourse to social norms. but anyway, that is the answer. jeffrey: great. mike, crucial question echoes back to law school. can the constitution evolved when it comes to the eighth amendment. the late justice scalia said when deciding whether a practice is cruel or unusual it might be appropriate to look at state constitutions and see if states have come to recognize a practice that is unconstitutional today that was not at the time of the framing. is there any state vote counting that was appropriate for the fuhrman,ween greg and or does the meaning of the eight commitment remain unchanged? if you are a good faithful constitutional interpreter, you recognize that there are some provisions of the

constitution that have a relatively clear determinative the president has to be 35 years of age. 35 means probably 35. that are other provisions if you are faithful to the original meaning, the original meaning has a range. or like articulate a standard as opposed to a strict rule. an interesting question. i am not an expert on the eighth amendment. i think it isn't interesting question whether cruel or unusual punishment was a term of art that had a limited specific meaning. thate read good arguments there is a prohibition on cruel innovations. if you think that cruel and ansual means that it is unusual penalty today, then i think there is room consistent with the original meaning for a practice to have become unusual when it was not unusually formed.

about the little bit supreme court in 1972 counting heads one direction, then in 1976 counting a social backlash and changing the interpretation of the constitution. there is something unsettling about a wet finger to the wind, the supreme court does follow the election returns, right? still that wouldn't be a possibility i would exclude for provision that it is explicitly standard if the framers in adopting a constitutional provision actually intended or meant for that provision to create some running room for different interpretations over time. and i think it is actually conservative, faithful to the constitution. thank you for that. affirmative action. did you pay attention, ladies and gentlemen?

contraception, the death penalty, and now it is time for affirmative action. this is why constitutional law is so crucial and important. 1978, and the university of california is sued after a man is denied admission to the medical school after discovering the school reserved seats for people of color. he charged reverse discrimination, and the question is, is this a violation of the 14th amendment equal protection clause, and the civil rights act hil said which as ak earlier, indicates the promise of the act of 1970 and for bids the discrimination on the basis of race. there is no single majority opinion from four of the justices say any racial quota to dissenters sayhe that the use of race is ok in higher education as long as it

is used to help african americans rather than to stigmatize or degrade them, and the key vote is cast by justice lewis powell, who says that rigid racial quotas are a violation of equal protection clause, but using race as a plus factor may be permissible because intellectual diversity especially in the university arena is a permissible goal under the first amendment, and taking the race into account was permissible. akhil, there was a muddled opinion on if anyone was right. writing it, what grounds for upholding affirmative action would you give? -- when in i was you was young, i used to make fun of justice powell. pluses are ok, quotas are not. in the long run these pluses approximate quotas. when i was 20 years old, i used

to mouth off about my father. as i have gotten older, my dad has gotten smarter. i feel the same way about justice powell. he has gotten a lot smarter as i got older. ins was maybe the sweet spot a very difficult culture. what does it mean for a system to be equal against the backdrop that was historically unequal for so long? slavery and its consequences. it is an opinion that is introduced in a big way into the national lexicon, this idea of diversity which can mean all sorts of things, but it is powell's opinion that injects that. that said, so maybe using race to integrate is different from .sing race to segregate maybe using race to make sure that our great national universities look like america, maybe that is not quite the same

thing as using race to keep people who historically have been an underclass down and out. that is the argument you would make if you want to say affirmative action is ok. the intent of the framers of the reconstruction is a little unclear, and what that means 100 years later when we are dealing with people, unified thought it was ok to do affirmative action, they were dealing with real slaves who were released from bondage. it is a very complicated set of issues today. way back then, i wrote a little piece with the student in the new republic and you were editing the new republic back then. no it had not to get -- have not. >> i later introduced him to

jeff. he is now just brother-in-law. [laughter] if you want to read a little bit more about that, we wrote a piece a little bit later called -- where he argued that race conscious of action was ok, at least for a while. that was more than 20 years ago. it is a toxic business that is taking race into account. maybe brother paulson will have more to say about that. stay tuned. see that episode. it is still a really important issue in current america. >> mike, we are very eager for your response. guys, justicesou cite the language from justice harlan that you set up -- said our constitution is colorblind.

the extract from that the proposition that any classification on the basis of race is unconstitutional. say they are not being good originalist. uses ofdid not say all race are unconstitutional. it was only in regards to civil rights. it is bad original is up to evoke this language in affirmative action cases. discuss. >> i'm going to start out by saying he was starter in his 20's that he was in his 50's. they actually had a right at the time we were in moscow.

there are new instances in which that principal is applied. but the principal he is the same. i think that you can stick with the principal of justice har listen's decent you reach the right result. peoples did agree on affirmative action but i think what is fascinating about the case. it created 30-40 years of legal confusion. for justices said colorblind. right:? you cannot set aside slots in medical school in a class on a basis of race. for justices are pure colorblind principle.

four justices adopt a view that says you can adopt affirmative action, reverses termination is categorically different from direct discrimination against minorities. you can get quote is. praisetly quite -- quotas. the one in the middle says that quotas are unconstitutional but a bonus or a diversity plus is ok. bonus, if it is meaningful, is in itself a quota. the really interesting thing is, eight justices agree that the one answer that cannot be right is the answer in the middle. all it will do is produce conclusion -- confusion. we have seen that for 40 years. they still cannot agree as to whether the principle is race blind or they can give

preferences on the basis of race. they have come up with these decisions in the middle that say, this is too much, this is too much. it is a total quagmire. without settling back quagmire, will perform an international arabesque intern effortlessly to the first amendment. here it is. let us read the first amendment. congress shall make no law respects an establishment of or the right of the people to peaceably assemble and to petition the government for regress of grievances. perhaps there is no modern case that better encapsulates our modern first amendment tradition that our next case .reledge gn -- case.

this reminds us that america is a global outlier in insisting that speech can only be banned if it is intended to, and likely to, cause imminent violence. i want you to remember that standard. that is the one of the supreme court embraced at brandenburg. speech can only be bad if it is intended to and likely to cause imminent violence. every idea no matter how grateful has to be admitted into the public spear. there is accused debate in the company -- country today about whether the first amendment

covers hate speech. when you are asked, you can tell people confidently that the supreme court and brandenburg has said that by overwhelming majority the first amendment does protect hate speech can only allow speech began if it is intended to cause immediate violence. it causes the queue cloaks plan rally. rally.lux klan he is prosecuted under an ohio criminal law that makes it illegal to advocate crime, sabotage, violet, or unlawful methods of terrorism of the means of accomplishing reform. the court remarkably holds that is protected by the first amendment because it is not directed or producing imminent lossless -- lawless

action. they're not going to write. they're just hearing hate speech of the agree with and there is no direct -- danger of violence. why did the court embrace it in 1969, having come out on the other wave -- way for so long? is it correct? what else are the audience know about him? >> i'm abuse believer in very broad political speech. own not try to shelter my hearing sharp critiques of their worldview. why did it take? governed by the constitution, it is a private institution. the free-speech idea is even broader than the first amendment. it is about how we as a society -- we have to be willing to

confront ideas that we might not like. and figure out why we do not like them. it will sharpen our own views we hear the other side. why did it take so long? it is a not a unique story about the first amendment. we have heard, for example, that the 14th amendment really did promise racial equality. that is all we got. it only happened later in brown v. board of education. we heard that congress is really authorized to pass sweeping civil rights laws, but the court initially did not get it right. finally did, though not on reconstruction power grounds. believe, no state shall make

or enforce any law that old -- will abridge the core ideas of the united states. no state can violate things in the bill of rights, like speech, press, petition, and simply. it to the supreme court of very long time to actually catch up to that. general, congress gives us the words of the first amendment. what happens within a decade? congress passes a law making it a crime to criticize congress. of 1798.ion act courts willingly uphold that. there is a lot that the constitution actually says and meant courts actually do not initially implement. only later did they finally catch up to it. mike might say that about affirmative action.

when he thinks it is prohibited, courts are not prohibiting a nap. he is couple that that they will come. what explains that? it is not unique to eight speech. i would say that many of the ideas in the constitution are radical ideas. amazing. radical and a good sense. it takes america a long time to actually catch up to these commitments and promises that really are in the text. it is because that they are in the text that in the end they prevail in the long run. in thetake seriously, long run, in part they are great institutions like the national constitution center that are yougned to reintroduce these amazing words and principles. >> thanks for the plug. paulson.like brother >> this is a good time for me to plug this wonderful book. " landmark cases volume two"

you can get it online and here at the national constitution center. mike, to questions about brandenburg. reason that the court recognized this free-speech principle in the 60's was the vietnam war. suddenly protest is much more popular in the justices are sensitive to it. i just want to ask you, was brandenburg correct as an originalist? the constitution center is going to have such a good debate next month in boston. justice breyer will speak. a brilliant scholar who just wrote a piece for the yield law journal saying the first amendment was supposed to protect core political speech but may some restrictions on hate speech are ok.

i want to know, is brandenburg correct? >> that is a big, complicated question. i think brandenburg is right. i think that hate speech tests our commitment to the principle of the freedom of speech. if we truly believe in the freedom of speech, we have to believe in the freedom of people to express views no matter how unpopular, how unreasonable they seem to the overwhelming majority of people. short of, this is frederick, immediate incitement to intimate -- imminent lawlessness. in the world after charlottesville, it is hard to know where that line is. the line that is drawn in the brandenburg case is that you cannot punish speech based on its offensiveness. it means we have to protect the broadest spear. we are pleased -- free-speech liberals. i reach that result of a matter

-- i think that is a correct as a matter of the original meaning of the constitution. it is true that the purpose of the framers, the core purpose of the first amendment, was to protect core political speech. i think that the words that they wrote, the freedom of speech, are broader than the principal. they were overbroad and protecting speech. the go beyond what european societies do. there is something true and distinctive to america. whether it to the supreme court to luck to get there, i think it could be fairly debated. the supreme court has not always been a vigorous 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 with my son is debs versusd eugene

the united states. he was a presidential candidate. he was basically prosecuted and convicted and incarcerated for a harsh anti-world war i policy speech. can you imagine that? and cards rating a presidential candidate for political speech. the supreme court upheld that. whether it took the vietnam war break the barrier and get us free speech, i think it is a fascinating question of the sociological matter. i am just a dumb lawyer. i do not know if i can lawyer answer thatipt -- descriptively. >> he runs 1920 from a jail cell. he gets a million votes. absolutely astonishing story. an inspiring story of i will not say-- evolution. justices of different perspectives coming to recognize the inside of jefferson and

madison. speech is a natural right that comes from god and nature and not from government. our freedom of opinion cannot be alienated or surrender to government on the -- under any circumstance. as creatures of the enlightenment, we cannot eliminate our reason to the state because it defines we are as human beings. madison --t >> both are true. >> madison had it first. we have another first amendment speech and it involves student protest. it is called tinker versus des moines. students deciding to protest what is going on in the public sphere. we about to have a march on washington, students were not happy with our current gun-control policy. in 1969 it was the vietnam war. students come to school wearing block -- black armbands to

protest the war. the question is, can they be suspended by the des moines school district for their armbands? >> they say that this violates their freedom of speech. the majority opinion, the courts of the people cannot be punished for the passive expression of opinion. the ban is a wish to avoid controversy. he can hardly be argued that students or teachers should the constitutional rights to freedom of speech or expression at the schoolhouse gate. a memorable phrase, even students do have first amendment rights. that notion is being challenged today by the internet. where's the schoolhouse gate if you are texting at home? what to make of recent supreme court decisions, including those upholding bands on banners jesus."bong hits for how important was tinker?

was a correct? if the court right or wrong to be cutting back on this in more recent cases? >> this one is personal for me. in parti do what i do because my parents brought me to philadelphia when i was 11 years old and i went to independence hall. that made a tremendous impact on me. later, for years iter, i am in high school, write an op-ed for the school newspaper that the principal sensors -- censors. my teacher stood by me. it's only to read the case. it was all about the free speech rights of students. i read it and it really inspired me. i think it changed my life. i tell that story in a chapter that i wrote in a book called

"the law of the land." this is a case about students, about the next generation. all i can tell you, for me, when i was a student, it really inspired me to take the constitution seriously, to take right seriously. it is what the national constitution center is all about. it is great to see one youngster here in the third row. thanks for coming. this space is all about, two thirds of the people who come a daily basis actually our youngsters learning about the constitution. for me, that is what tinker was. >> is a beautiful story. this was a spectacular president's day. so inspiring. mike, he is given us this personal story. these more recent cases suggest that students have fewer first amendment rights that adults.

suggested that, as an original matter, students have no first amendment rights at all. is tinker correct or is justice thomas correct? >> degrees a great case. i love it. him, iough it protected would've liked to see him suspended by his high school. [laughter] i do not have a story like that. one of my first jobs out of law school was working defense of religion freedom for high school students. prayer groups terms as chess club. the case that we cited more than anything else was tinker. a religiouswas freedom case, we were not relying on the religious freedom provisions. look, this is just the expression of views. you cannot discriminate on the base of the fact that it is religious.

you think resume in case. it is true that the supreme court has been chipping back on a couple of decisions. there are greater restrictions that have been upheld on the speech andstudent's whether it is offensive. if something occurs within a curricular context, the speech becomes more the school speech. it is easier to regulate. i disagree with that, too. i disagree with the "bong hits for jesus" case. a high school senior shows up for a parade in alaska as the lipid torches going through town. they are dismissed from school that day. he does not show up for school. ando straight to the parade unfurls this banner that says jesus." there is

no message in it. they uphold the expulsion or suspension of him from school on the basis of what he does at the parade. know more like his speech that i would like some other speech i disagree with. i think that the basic principle that kids are persons and are possessed with free-speech rights is a vital and correct principle. the first amendment does not limit them to adults. kids come out there, press your freedom of speech. it cannot interfere with the rights of other students to be secure and to have a good education. gett of that, you can't -- to express your views. that is your constitutionally protected right. >>. vote -- beautiful. the pentagon papers case.

who has seen the post movie? it is great. go see it. this case is crucial to the where president's and is 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 movies, they have been leaked by daniel ellsberg who worked for the department of defense. in the movie, it is the publisher of the post to mix the brave decision to publish despite the recommendations of her all-male lawyers. is, at the same time trying to decide what the new york times will do. a lower court judge stop the presses for the first time in american history. another judge refuses to stop the presses and is very proud of that.

it is a love to the supreme court. as we learn from the movie, the first amendment protects the rights of the new york times to papers. publish the justice black wrote one of his most memorable decisions, saying that the word security copies to abrogate the fundamental law embodied in the first amendment. what is the legal principle that justifies justice black's holding? with the correct? -- was incorrect? correct? >> the versa memo talks about the freedom of speech and the freedom of the press. those were two slightly different things at the time of the framing. the 14th amendment makes these against stateble and local governments. freedom of speech comes from freedom of speech and debate. is the place where

people speak. from the french parler. parliament gets to do that in england. in america everyone gets to do that. we are the parliament. that is very broad political expression. that is what mike and i defense. -- event. that is the predator case. brandenburg case. the president did not mean the media. it actually meant a machine. the printing press. stop the presses. if-thea was, in england, -- the printing press is to be a very expensive piece of equipment. today you have one. it is that laptop on the iphone. back then, the century before the constitution, it was a heavy piece of equipment. the government of england could

license it. it could decide who could get a printing press and you cannot. and you cannot. freedom of the press was this idea that, actually, government should not be able to license. you can print what you want. if the government did not like what you print it, you could be punished after the fact. america, to be, in associated with this idea of no prior restraint. the government cannot license a printing press. printers gets published. if they published stuff that compromises legitimate government interest, there is a possibility of punishment after the fact. we cannot stop the presses. that after-the-fact punishment, one of the things you need to understand is, who was going to decide whether -- the jury ise going to have to decide.

they will see what you are published and whether that was to a national debate. i've not seen the movie. it is a great story. it only stands for the proposition that the government cannot stop the presses in advance. the court acknowledges, there is a possibility that once the new this, thatpublish could be prosecutions afterward. they were gutsy to not hold back and to actually publish. at ofere at risk at -- after-the-fact punishment. the free speech clause is much broader. >> that is networked and michael in the movie. catherine brown is worried about being put in jail for conspiracy. both she and the times relate on

the same source. mike, is that the correct principle. if so, why didn't the nixon administration tried to punish after-the-fact? you believe that the natural rights edition of the first amendment would prohibit publication even after-the-fact. >> that is a really tough question of whether the first amendment would permit criminal prosecution for publishing the disclosure of a national security secret. that is not something that is decided by the pentagon papers case. this case came up on a super fast track. i think it was two weeks from the beginning of the publication of the pentagon papers to the time it is decided by the sprinkler. the supreme court does it in rapidfire fashion. the movie captures this wonderfully. i can't believe a lot of professor has counted see a movie about a supreme court case. >> kids at home.

>> tape it, they will love it. opinionsis a range of that say, government cannot restrict whatever the press publishes. says,nnan's opinion that there might be able to restrict publication of national security analogous toe sort letting hitler's nowhere the d-day invasion is going to be. there are compelling interest overwrites. to a mental block of justices who say, we do not need to decide that because one isnciple lives that his firm that the government may not shut down the press in advance. here, congress has not passed a law authorizing nixon to seek the injunction that he did. getting a court order stopping the presses is not only a first amendment violation, but a separation of powers malaysia. the president is asking the

court to write a law that congress did not look -- right. there have been cases like that. the recent instance in the early times where the new york disclosed are signals intelligence operation. something about the nsa wiretapping program. say what you will about the wiretapping program, the disclosure of the intelligence gathering information did violate the specific criminal statute. is an open question not decided by the supreme court whether you can criminally press forthe disclosing a vital national security secret. i think the gravitational force of the new york times case has created a political atmosphere do not go after the

press for publishing things, even where the statutes seem to think that we could. >> we have two more cases. the next one involves the sixth amendment. the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and have the assistance of counsel for his defense. our case is gideon versus rain right. criminal that defendants had a right to an attorney even if they cannot afford one on the right. if you want to hear the human stories behind this, read "gideon's trumpet." it is an astonishing story. i will not ruin it. gideon, who handwrite his opposition to the supreme court saying that he had a right to a lawyer, and sub getting one and being retried and be found innocent. i wish i could take out lewis is

lewis's book. you get the sense of the incredible journey that gideon aftered to be made free asserting his constitutional rights. after two years in the state penitentiary, he was a free man. his eyes. tears in he trembled even more than usual as he stood and it is -- in a circle of well-wishers. that night he would pay a last visit to the pool room. someone let him have a few dollars. do you feel like you accomplish something? well, i did. what was the central principle that says you have a right to have the state pay for you to have a lawyer? how does that square with the history of the six amendment? why did take the courts along?

was giddy and correct? long? courts so was gideon correct? >> that right comes to apply against the state. the counter is, counsel only if you can afford it. it is not so clear. at the founding, it is truth, that in capital cases in america , the government paid for private counsel. in noncapital cases, it did not. on the other hand, the fiction was, in a noncapital case, you did have the benefit of legal counsel. that was called the judge. afford counsel, the judge would look after your interest. the judges paid for by the government. governmentform of sponsored, subsidized counsel. clearime, it came to be

that the judge cannot be both the umpire and the coach for the defendants team. you cannot wear both hats at once. is gideon is changing the precise way in which the government provides your counsel , not through a judgment through a public defender. excellent argument. -- that is one argument. the constitution provides for due process. it is about their procedures. an intolerable risk of unfairness that is -- an innocent person can actually be found guilty, not because he is guilty but because he is not learned in the law and cannot defend himself. there is an intolerable risk that someone is going to be convicted because they're poor. that is not their procedure.

it is not due process of law. as a society becomes wealthier overtime, maybe it is more fair to insist that we provide more , especiallyesources since government is pouring more money into prosecution that it used to. that is the second argument. it is one that does depend in how the prosecution function is changing, how government -- how society is becoming off here. here is one final point. it is a counting point. at the time of gideon, 45 of the givinges were already all felony defendants appointed counsel. gideon mentions that prominently. it is a counting idea. ,ven the five that were not they always gave counsel for capital defendants.

they give counsel to a lot of people, not every felony defendant. a brief in the case. 22 of them on behalf of clearance gideon. states were very on board with this principle. you see the john marshall harlan counting principle. >> i heard a lot of evolution there. i heard counting. i heard a lot of -- >> handwaving. >> at the time of the framing, some states bands defendants from having counsel because of the vestiges of an old system where there was no counsel and you were not sworn and drove. tople were not allowed testify in their own words. was trying toent allow you to have counsel if you

can afford it. was the court credit to hold that even if you cannot afford it, the state had to provide one? or was gideon wrong? >> gideon was right. the principle is pretty simple. it is still arguable and debatable. i think that the right to counsel, the right to have systems of counsel for defense, is an affirmative right. it is not merely a right to not have government for video. it is a right to have a lawyer. i think it is entire bowl -- entirely plausible reading of that. i'm a fan of gideon. >> are less case. cap versus u.s.. it is time for the fourth amendment. i'm going to put it on the screen. the right of the people to be secure in their houses against unreasonable searches and

seizures shall not be violated. the central idea of the fourth amendment is to repudiate the general warrants that sparked the american revolution. at the time of the framing, you have to break into someone's house in filing their private property rights to violate the fourth minute. court held that without physical trespass, there was no fourth amendment violation. in that case, the wiretaps were put under a public sidewalk leading up to the suspected polluters office. in his visionary dissenting opinion, justice brandeis disagree. he migrating technologies which would allow the expression of unexpressed thoughts and emotions and said that the

fourth minute should apply even without physical trespass. it was significant because it rep and -- recognize that insight. before the memo protects people, not places. who remembers phone booths? [laughter] i do. you have to go inside the. you could close the door behind you and talk on the phone. thecourt said, because suspected gensler had closed the door, he manifested a subjective expectation of privacy that society was prepared to accept is reasonable. -- as reasonable. is there a subjective expectation of privacy that society is prepared to expect as reasonable? there's a much as a much essay about that. it seems circular. the government says, citizens we going to track your gps devices.

this term, and the carpenter case, the court may determine the future of electronic privacy. you have written so powerfully about the fourth amendment and the general wards. wasn't correct as an originalist matter? who had the better opinion? would you have decided on other grounds? >> i have a broad understanding of what counts as a search or seizure. we do not live in the same physical universe. people can be intruded upon without a physical trespass using electronic surveillance techniques. i like the idea of the 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, that it has to be reasonable. the court sometime says, there has to be a warrant. i do not think that is true. it is not true for all sorts of searches. metal detectors and airports are searches and seizures. being stopped and first on the street. it does not have a warrant. i have a broad understanding of what counts as a fourth amended episode. i think that all that requires is governmental reasonableness rather than a warrant. generatedthat were after the cap case, wiretap words, are issued by courts in secret. fisa warns.to

i do not like the idea of courts acting in secret. the do not act well when they act secretly rather than in an open court. i do not love that. here is where i am really kooky. the framers of the fourth amendment did not believe in an exclusionary rule. even if the fourth amendment was violated, if actual evidence was found, that was admissible. it matters not how you get it if you steal it. that is not brandeis's view. he thought that it obviously that if the government filing to the fourth that the evidence would have to be excluded. no founder said that. no founder ever thought that. no court in america stayed -- .tate or federal no court in america ever excluded evidence in that way

and the entire century after the declaration of independence. an eclectic set of views. rod understanding of what triggers of fourth amendment, required,nableness is and i do not love the exclusionary rule. it does not help you at all if you are innocent. if you are innocent, they do not find anything, and they still intruded upon you. when you aregime intruded on, sue them for damages, have a jury decide, suck it to them. the more consistent you are the more you recover. do for you. the recent electronic privacy cases have been unanimous. putting a gps device on the bottom of some of car or seizing the cell phone pilots the fourth minute. the more conservative justices

focus on private property by lesions. that was the problem in the gps case. was there a property violation go pentagon -- pentagon -- pe on? respect, i think you are wrong about the conservative justices. some of them have found fourth amendment violations where there is a specific intrusion on a property right. one of my favorite fourth amendment cases to teach is one that was written by justice scalia. there was never a more clear writer then justice scalia. he served wonderfully for 30 years on the supreme court. this was a case about the use of infrared technology to look at people's houses. the question presented was, was

that 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 -- it is ae home search of the home. and matches the literal words of fourth amendment. to see somebody's phone conversations, to wiretap, is a seizure. it was not a technology known at the time, but is an illustration of the constitution's terms instancesembrace new that fit into traditional categories. , from anhat originalist point of view, it is clearly right that wiretapping somebody's conversations is a search. it is a seizure of a conversation.

the fourth amendment is a prohibition on unreasonable searches, not on the searches per say. not all searches require warrants. he is adopted the wonderfully that theive view fourth amendment itself does not provide an exclusionary rule. the fourth amendment is traditionally about damages. it is not about a sleeping evidence. -- excluding evidence. there is no reason in the constitution what the police's should result in the exclusion of evidence that a trial. they should be said for damages. i think that is not the reason why the guilty should go free. >> this is a wonderful place and. -- to end. justices whois,

love and agree on the methodology. they have different views about how the constitution should be translated in light of new technologies. here is your homework as you get ready to enjoy this incredible series of 12 landmark cases. dig into theyou to text of the constitution. i wanted to download the national constitution center's amazing interactive constitution. you can click on each of these amendments and see the opinions of leading scholars. they have a thousand words on what they agree the provision means a separate statements about what they disagree on. it is an inspiring feast. it will get you ready to think about the cases. i want to read the opinions. you can scam. -- skim. listen to the human stories.

here's the amazing, inspiring sides. on all -- both be open to the possibility of separating your political and constitutional collisions -- conclusions. you might think that searches of the conversations are a bad idea. that is what it means to think like a constitutional lawyer. that is what i have learned. that is what the two of you learned when you were students. caring so much about the meaning of the constitution and recognizing that it is made by people of fundamentally differing points of view. that is what the constitutional center is about. that is why we're so excited about the series and so thrilled to share with you. they give your friends at c-span3 it -- thank you to our friends at c-span. thank you very much. [applause]

landmark on c-span's cases. we will look at mcculloch v maryland. it solidified the federal government's ability to take actions not explicitly mentioned in the constitution and

restricted straight -- state action against the use of this power. watch landmark cases live monday or9:00 eastern on c-span listen with the free radio app. order a copy of the companion book. for an additional resource, there is a link on our website to the national constitution center's interactive constitution. for nearly 20 years, and depth on book tv has featured the nation's best-known nonfiction writers for life conversations about the book. this year, we are featuring best-selling fiction writers for our monthly program.

join us live sunday, march 4 at noon with jeff shara. his most recent book is "the frozen hours." is apple recount the military history of america, from the american revolution to the korean war. we will be taking your phone calls, tweets, and facebook messages. series, sunday, march 4, live from noon until 3:00 eastern. announcer: former housing and urban development secretary julian castro spoke at a young democrats event in new hampshire. he talks about political strategy heading into the 2018 and 2020 elections. mr. castro also served as mayor of san antonio, texas d