>> it today on c-span, a forum with former president jimmy carter. he and his wife talked about farm policy and take questions from the audience. . there is an inherent feeling amongst people in this country

that an african-american should not be president. he should be given the same respect as if he were white. this has permeated politics ever since i was involved with this in the 1960's. not only in the south but also in many places throughout the nation. >> we will assure you that entire event with former president carton -- carter today at 6:30 p.m. eastern and pacific on c-span. in 1971 as a "york times" reporter, he is still writing about the vietnam war. he has won a pulitzer prize. this weekend, he will discuss his latest, "a firing peace." that is tonight on c-span. >> former supreme court justice

souter returned to his alma maters to commemorate constitution day. he talks about the modern day relevance, the role of that -- judges, and what he plans to do with his retirement. >> it is common etiquette to refer to him house -- and as our distinguished guests. we are grateful to the honorable justice david souter on this constitution day. he was an associate justice for 1990 -- from 1990-2009. prior to his tenure, he was attorney general for new hampshire, associate justice of the superior court of new hampshire, in the new hampshire supreme court, and a judge for

the court of appeals in the first circuit. he has offered more than 300 decisions. here are a few. he has written for the court in landmark cases, celebrated concurrences in levee v weisman, with scouts of america, and u.s. of the lopez -- u.s. vs. lopez. justice souter is currently working with the new hampshire task force launched by the supreme court society seeking to approve civic education in schools across the state. in 2003, professor feldman was a senior constitutional adviser to the provisional authority in iraq and advised members of the

iraqi government council for the interim constitution. he is the author of four books, "after the jihad, " "what we owe iraq, " "what we owe god, " and "the fall and rise of the islamic state." >> best year of my life. i thought we should start with constitution day. federally mandated obligation by universities. i thought i would ask you, do we need a day to celebrate the constitution? where do come down on the question of the federation of our founding documents --

veneration? >> i think i miss -- i think i am to the left of veneration nests -- venerationists. i take a somewhat more pragmatic approach than the venerationists do, at if it ain't broke don't fix it. i do not think you have to venerate in order to appreciate the position that it is probably wise to ask what you were going to come up with as a replacement before you start replacing it. i think the tenor of the discussion provides the constants -- context for the conversation. i think we heard emanations of

the two levels of criticism of the constitution. one of them, i would take exception with, and you might call me a venerationist in that respect. at the other level, but i think we run into political questions and i would probably be out before i started getting into positions. the first level of criticism is the criticism that i think is summed up in one of the phrases from robert frost. i think i remember the phrase right, waste is in the essence of the scheme. there is an essential part of the constitution, internal conflict. it was intended to be a doctrine

of internal conflict. we wanted both ways. we want both order and liberty. we want effective law enforcement and some degree of privacy, and so on. the same thing is true with respect to the efficiency of government. as it has been pointed out, the very points of the structural element of the constitution is to make some things difficult. there were difficult in part to sort of eliminate too much efficiency of power at the highest level. they were made some things difficult for the very reason that we tend not to make very good decisions in times of great difficulty and hysteria.

it is for ourselves not to let ourselves go too far. that kind of waste, if you will, was the essence of the scheme. to the extent that there is criticism of the constitution, i am not suggesting that this was the essence of anyone's criticism, but to the extent that there is criticism of the constitution on the grounds of inefficiency or waste. the answer to that is, yes. to the extent that you get down to the for level, the electoral college, the senate, and so on, those are basically political questions. the only thing that i would try to contribute to the debate on those points is to voice the thought that i started with. i frequently tell a story to

school groups, and this is more than a school group but i cannot resist telling it because there is a great lesson. there was a teacher at dartmouth. one of his concerns was that regional english was disappearing in the united states. used to travel around in his spare time in new hampshire, vermont to collect examples of local speech patterns. i do not think he had a tape recorder but a notebook. one of the stories that he tells his of him stopping at some farm where he knew the people and had talked to them before. he met the husband, the farmer, a professor pellett says, "how was your wife?" and the answer was, "compared to

what?" that is the essential question to raise when you get to that second level of constitutional criticism. what are going to come -- replace it with and what are the odds that it is going to be better? what are the odds that, in fact, is going to function with less production of grief than what we have? i do not think that makes me a venerationist, but i guess it makes me a pragmatist. be very sure it is broke and that you can fix it better before you start trying to do that. james madison would not have answered in exactly those terms, i am sure, neither would thomas jefferson so i guess i am in the middle. >> a system designed for

conflict demands resolution. interpretation of the constitution is one of the leading ways to resolve these difficulties. it is also one of the jobs that you have been deeply engaged in over the last few decades. i wonder if i could ask you about if you different schools of constitutional interpretation to see how you react. let's start with regionalism, a school that emphasizes the original meaning of the constitution either as it would have meant understood by those who framed it or the regional intent of those who ratified it. -- or the original intent. you sometimes do begin in interpretation of the constitution with reference to what the framers thought. >> i think you have to answer that question with reference to specific questions. maybe the only general answer i can give you is that regionalism is fine if you do not expect too much from it.

-- are regionalism is fine. -- originalism is unlikely to provide you with very specific answers to the types of questions that you're likely to mess. to begin with, and maybe i should step back. the reason i say it is fine is that one of the conditions for a legitimate constitutional interpretation by a court, by an elected court, is that we look to sources of meaning and to guides of how to make practical sense of what the constitution says that have more authority than the preference of the judge who is talking. there are sources of legitimacy. one source which we recognize,

not on the constitutionally but elsewhere, is respect for the intentions of the people who used the language they were trying to interpret. that is what originalism ultimately looks like. in terms to what it can do, usually it cannot give you very specific answers even if you have a very careful canvass of debates, conventions, ratifying conventions, commentary by those who have spoken for common understanding at the time. usually you do not get very specific answers. sometimes you do. sometimes, i think it is possible. i think the long this thing that i ever wrote from the bench was a dissent in a seminal --

seminole case about immunity from federal court. i thought that in that case originalism, the reference to the original sources indicating meeting understood at the time, provided a strong argument for the 11th amendment. it was intended to limit federal court citizens state jurisdiction but not federal jurisdiction. i think that is a relatively common example in which originalism can give you a quite specific answer. i think helped to answer it, or would have. most of the time, our originalism does not give you clear answers like that.

the so-called "hard original lists" who say that answers are always possible, they are people who tend to do, when i was in law school, our professors used to illustrate by drawing on the blackboard how people gave conclusory answers. there were two rabbit ears and his point was in order to pull the rabbit out of the hat, you have to put the rabbit in the hat. originalism does not provide many specifics rabbits. there is a tendency, and i do not know if there are any hard originalists left, but there is a tendency to think that there are more rather than can be found.

softer and broader originalism couldn't do -- and could do was a lease to inform one about conceptual thinking at the time this language was adopted. constitutional provision, constitutional amendments, and this kind of broader philosophical background, i think, can provide good reasons, legitimate reasons for going one way rather than another. what it cannot do is give, and what virtually all in -- invitation is capable of giving, is something that can legitimately be called the right answer rather than the wrong answer. one thing to bear in mind whether we're talking about the role of regional -- or originalism or presuppositions that might help is to bear in

mind that we are by and large and drink questions for which there is not a clearly right were clearly wrong answer. the questions, however, are capable of having a better answer or worse answer. the idea is to try to get the best reasons to support a better answer. soft originalism is one source of doing that. >> when one speaks of better and worse answers, the question is better or for worse for the better or worse for what? you said you were a pragmatist. can you talk about that as a way of going about constitutional problems? >> if he is still here, i want to shake his hand. >> e you yourself have always been interested in justice

holmes you wrote a senior essay about justice holmes. just turning into you, what pragmatism, in some sense, means to you in a constitutional context? is it identifiable in its own terms? >> there are two broad choices a pragmatic role. one is to look at a question pragmatically and say that i have all sorts of extra constitutional reasons for thinking the answer should be "a" rather than "b." i will answer on kind of a functional ground that gets me to whatever the better answer is. that is that kind of pragmatism

and it is and how aesthetical to what we like to call principal judicial decision making. there is another kind of pragmatism. i guess it, too, is bipartisan. you recognize that all of the principles that we hold, and i'm talking about normative principles, propositions about what ought to be in the constitution, what the government ought to be, what ought to be done in situations implicating various civil liberties. all normative propositions constitutional and others, in my judgment, are essentially pragmatic in origin. no one and here's to a set of principles that over the long, long, long run produce horrible results. -- no one adheres to a set of

principles. >> and no one knowingly does. >> one of my teachers here as an undergraduate wrote a wonderful book that sort of summarizes the approach to this kind of pragmatism. it was called, "the philosophy of culture/" -- culture." he wanted to know if there are verifiable or disapproval. that was essentially his point. we do have a long or broad series of value. subsidiary principles that produce results that are thought to be horrendous by those values are principles that all smelly will be discarded. all constitutional principles have a pragmatic basis.

that is one sense of pragmatism, though that does not help you decide on particular cases because it is kind of the practices and that is engaged in by society more so than by judges. the second sub-pragmatism was most magnificent demonstrated by one judge -- judge hand. exemplified one prong of the distinction between judges to judge from the top down and judges who start from the bottom up. judges to start -- who adjudicate from the top down start with principles with great breadth and then look for cases

with which they can express those decisions and embody them. the other school says to have great respect for facts because your first job is to decide the case, not to embody the principles. you may well be not -- you may not will be able to solve this because it is a normative proposition. make sure your being honest in your assessment and your respect for the facts first. i think this latter type of pragmatism is essential to my kind of judging. i think we should start from the bottom of. it is essentially the common law. -- i think we should start from

the bottom up. one thing he embodied in his judicial corpus laws that a great many of the legal problems that we are asked to face our problems that, in fact, can be given answers depending on factual differences from prior cases. that kind of pragmatism, i guess, is the pragmatism that i would spout. holmes talked a pragmatic game a good deal at the time. hand was a great practitioner of it. john marshall harlan was.

except the fact which i attributed to martin white about the pragmatic verify ability or disproovability. of it or is first about the case and the factual details of the case before deciding just how grand the principle is necessary to decide. >> the common-law method in constitutional decision making begins with the particulars and it is appreciative. not just this case but from the precedent that is drawn from the effects of earlier cases. a lot of people think that on top of that is directional, not just case by case, but moving incrementally in a certain direction. more broadly, a gradual slope

change that was never the less in the direction of something. should the direction the liberty or quality. the name of constitutional interpretation that likes to move slowly but surely in a direction of greater freedom and equality is living constitutionalism. as you know, that has been very controversial and i'm not asking in any way shape or form to buy into the phrase. i'm wondering about the underlying picture about where it goes in the expansion of liberties. some of those are commenting favorably on your years on the court and have depicted you as someone who moves slowly and cautiously -- cautiously in a direction. >> fair enough. there has to be a direction. at the end of the day, you have to say something. bear in mind two different types of common law judge in.

one is the historical context of the judge who was there, whether it be civil or criminal cases, in places where there were a total absence of statutory laws. you have to start from scratch. the value of propositions whether they are for constitutional law or criminal responsibility are propositions that you have to derive by whatever method you do so. the second sense of common law judging is the judging of common-law method, that is what you were principally referring to. i think it is inappropriate in a constitutional context. it is secretion very -- it is accretionary has a respect for facts. a go-slow.

as you say, when one gets to the fork in the road, one has to go one way or the other. that is the point, i suppose, at which it is important to remember some of the things we heard today for the preamble of the constitution, the founding documents which suggest a direction. however, one cannot just look to founding documents for the direction for the very reason that i went into a little earlier. the founding documents are documents, whether they be preambles, declarations, there are documents in a system that once it both ways.

-- once it both ways. in interpreting the fourth amendment, answering specific questions about its application, you cannot say the fourth amendment is dedicated to a reasonable respect for privacy houses, person, a fact, papers. that does not get you anywhere. the fourth amendment uses the criterion of reasonableness which says you have to look at both sides. number two, even assuming that there is a sort of libertarian kind of direction, there is it to a degree if not a zero sum game, a game in which one side wins and the other side loses.

it is a legitimate constitutional value to promote the evenhanded enforcement of the law. there's detection and punishment of people who break it. there is nowhere and that the end of the day, except to say that i have a few sets of values which are in play here, one is a value that would generally be classified under liberty. another is a value, in my example, that of the classified under authority. we want some of both. i do not think there is any formula for telling you how you resolve the conflict in any given case. it is, after all, the enduring lesson of the indictment -- in alignment.

one reason is on an empirical basis. i do not know of any formula that says liberty always wins or authority always wins. that is why i espouse the common-law method which it's down to the nitty gritty kinds of factual issues to provide a premise for deciding which of the competing principles has the better argument in the given case. >> me i press back a little bet -- bit. by your own account, the previous cases do not fully decide the case that is before you. you're trying to figure out the better of the different directions you can go and you are at that fork. you're going to choose one of the directions. you're not going to be like some judges and who are our green like the view the dara --

arguing like yogi. there are some justices who seem that was being thought process they followed. it seems more as though when you are figuring out which direction to go, you look not just at the immediate prior cases but a broader directional sweep pushing in one direction or another. in this line of cases, if it seems to be pushing for greater liberty rather than a 40, that seems, this is a hypothesis, but it seems to me that it is an important force in our jurisprudence. a good area where this arises when of substantive due process. those words alone will not give

you an answer. history alone will not give you an answer. there are many who believed in many would say that you yourself have written the decisions that there is a directional expansion of liberty that should take place slowly because that is the direction of what has come before a. that seems a little bit different than your formulation that speaks of reasoning from empirical facts. >> you are quite right. i did not speak of the significance of precedent. of course, it is one of those principles of decision worthy of great respect. originalism is something different. contextualism is something different. the force of precedent is great, but 11 -- but what one has to

remember in cases where there is a genuine issue is that maybe we are at the point in which the line of precedent has been developed as far as it should be developed and there should be, in effect, a counter line. if an appellate judge will not accept that as a possibility, that fixes were he goes on the bench. no line of precedent is, as it were, the embodiment of absolute value. the notion of a constitution in which we want it both ways is sensible by accepting the proposition that we cannot have it both ways all way but we can have it both ways partially.

>> of the said the david souter of 1991. . thus said. when you're being confirmed, i see the similarities. the argument would be that it is that a recent development. one would want to ask is it that your jurisprudence that you spoke of at the outset or that it was simply infrequent that he found it to be the case that the line of precedent expanding liberty or quality had gone this far and ought to go no further and that was the way things played it out. whether in fact directional pressures in trending toward liberty or equality actually

exercised some poll on your decision making. i do not think there are any exclusive accounts, but there are critics who would say that one must be the case. they say it is a great gift. >> i am sure i do not have it. i guess i have two thoughts in response to that. number one, one of the upper level values of and legal system which is a value that cannot be taken as absolute if you take my approach is, in fact, the value that develops or tries to develop, or the value

of developing a coherent system. if there is a significant value in developing a coherent system, albeit not an absolute one, then of course there's going to be a gravitational pull. i am certainly subject to the gravitational pull and i am very willing to subject to that gravitational pull. the second thing, i guess, that i would say is on a purely individual basis of a one that judges output we did not invent the wheel every time the possibility of convention comes up. we follow our own president. we do not always do that. i did a 180.

by and large, we hope -- >> that metaphor just calls out for it, that is not appropriate for c-span. >> not at all. we hope that we work out the problems we are working on in a sufficiently reasonable way than what appeared to us five years ago as a sensible or legitimate in its conclusion is going to seem premature the same five years later and one could build on it. there's no question except in cases in which one hopes, one really says that they blew the first time around. there is coherence. there is going to be a progression in because it's a scene -- a consistency with the broader body of law.

i apologize if i sound like a johnny one note, but we cannot forget is that we do not -- we are not intended to have a system that which, if it were, the coherence of values allows the development of any one value necessarily as far as it can logically go because there is usually a legitimate competitor somewhere. we cannot lose sight of that. the value of coherence in a system or coherence in a given body doctrinal development has to admit that the door is open. this may bring in line of precedent to the end. >> that observation leads to another school of constitutional

interpretation that says -- everyone says he or she embraces. that is judicial restraint. listen to justice roberts or sotomayor who sounded similar in these respects. we have a tripartite system of government and they mentioned a fourth branch earlier today. it is not the job of the judiciary to make the law but merely to decide the lot. how does a judicial restraint, as a theory of judicial constitutional interpretation square with the challenger resolving competing principles? >> let me give two answers to that. number one, i am not going to use the term "judicial restraint."

that is a term, fortunately like having an appendix out, one does not have to go through it again. judicial restraint was one of the justices free -- a favorite term. it has a very strong identification with a political ideal. let's just go to the proposition of a -- that judges interpret law and they do not make a lot. there is a perfectly legitimate sense in which that is absolutely true. any judge can sensibly and should legitimately a firm that. -- a firm that. there are situations where judges are forced to make some law and that has to be recognized, too. in the political arena, those distinctions are not drawn. in the political arena, when

someone says, don't you think judges should make a lot and interpret the law, -- law? the easing their bound by statutes and bound to follow, in effect, the policy if there is a choice to be made in interpreting that statute for the political branches? the answers are legitimately yes. the sense of judges making law that does not appear in those kinds of political hacks and fourths -- backs and forths, i suppose there is no statute, no constitution, no provision that was in fact ever devised that can possibly answer in advance

every answer about application. when the answer is just not there, someone has to give it. it is perfectly fair to say in those moments, judges are making law. they are making lot in the sense that they're deciding specific questions, whenever maybe there interpretive principles, they're deciding specific questions which the legislative branch in passing a statute either did not think of or could not possibly have decided in advance likewise in constitutional adjudication. to say that judges do not make a law in applying the due process clause is to fail to understand that the term "you process" does not settle specific issues. -- that the terms "due process." it is a good rule of thumb in

trying to understand how judges make law, it is a good rule of thumb that would drive some men to affirm this that there is no statute or no normative propositions that in fact can be understood solely by reference to its terms. i ran across a wonderful illustration of this. in a footnote a couple of years ago -- i ran across a wonderful illustration of this point in a footnote. the book was, "the song sparrow and the child." he tells the story of the raising of the granite obelisk in the center of bernini's

collanade. as was during the pontiff's get of -- pontificate of the sixth. the obelisk was enormous. given the engineering at the time, it took the labor literally of hundreds of men for the better part of one day to get it up where it was supposed to be. the difficulties that they anticipated were that the spacing of the workman was so great that if there was any noise, there was no way for the foreman or whoever it is ultimately making decision on pushing and pulling to be heard. they were worried about how they would olmert -- overcome this program -- a problem.

the pope said he would sell the five forbidding anyone to speak. he said that anyone who spoke during the period the installation of the obelisk would be hanged. to prove that he meant that, he erected gallows in front of st. peter's so everyone could see it. the great day came and the work began. hundreds were calling on these ropes. at one workman noticed that a significant rope was chafing against the hard edge of one of the corners of the obelisk. if nothing would be done, the obelisk would break, people would be killed, and so on. >> -- and he yelled out, " what of the rope?"

the rope was wetted down and the job was done. it was successful. when the obelisk was up everyone said, "is the " -- what is the pope going to do?" he asked for the workmen who had shouted out against his orders. when the man was, the pope embraced him warmly. that is the end of the story. some people would say that was an example -- example of executive discretion. >> papal dispensation. >> i think the better interpretation of the story is that what the pope meant when he said no one should speak was in no one should speak in a way that would distract from the work or jeopardize the

accomplishments of this object. the pope knew what he intended. his words can't -- could not be understood with out reference. he expressed the intention in his decree. that is why i think the story is a good example of the general proposition that you cannot understand tax ultimately without references outside -- cannot understand texts ultimately. they look to references to answer questions about application which are not spelled out, the pope did not say if it is ok to talk of the rope breaks. there's a perfectly legitimate sense in which judges are making law. >> i think that the skeptical response would be to say something like the following.

he famously said that he should not wish to be ruled by a bevy of gardens -- guardians. granted that you must be right that when it comes to the interpretation of some particular language that one has to look to the intense -- and the intense. perhaps their implicit intent, what they would have wanted had they been present. that is with the story of the pulte helps to exemplify. but, says the skeptic, that does not mean that institutionally it should be the judges who do that on a regular basis. it may be that it is for other institutions in this society to of comparable opportunities to speak about what the framers may have wanted or what a reasonable

person might have intended. that was -- that is what leads hand in his lectures to come out against the judicial discovery of rights that are implicit somehow in the structure or even in the unspoken language of our own bill of rights. i think it is institutional. judges are not the ones to do this. he did the sometimes. no one would claim with a straight face that judges never do it. if we're talking with -- talking about frequency and do not rely on interpretation without it for a grounds of a very broad expansion of individual liberties. >> your point about hand brings to mind a commentary on him that said he revered him though he

did not agree with him. he said hand had pointed out that judges cannot do everything, but surely the judges can do something. i think that, in essence, as to the answer to that criticism. there is no way to escape the need to do that. if that is not what judges are doing, at least on the appellate level when there are difficult questions, then there is nothing for judges to do. the answer beyond that is to fold. number one, it is a question of how broadly one wants to sweep when they answer those questions. when handed did that sort of thing, answered them very narrowly, so by and large with anyone who proceeds with a common-law methodology created do not go too far.

you are not as smart as you think you are. the second comment is if judges were to adopt the word of society for judges to adopt a proposition that there could be no judicial lawmaking, then there has to be an answer to a question i alluded to a moment ago. you have to say something. someone has to win and someone has to lose. to say the judges are in fact going to follow a radical minimalism and say that the answer calls for simply to look at sources which would be better

done by a committee of the legislative branch is still to decide the case because after the announcement is made, someone has lost. to say that that is a way of reckitt rescuing judges from making policy choices is to forget that that is in its own a policy choice. presumably in, courts were not put in a position to decide every case by 84 immodesty. there is no precedent for that, god knows. those are reasons for thinking the skeptical answer still is something we still leave something. >> one of the many things that distinguishes you form -- from the judges is a decision to leave the bench while still

healthy and in possession of all of your faculties. what is a retired justice do? what will you do as a retired justice? >> when i come back on constitution day next year i can give you a better answer. i can tell you right now that i sent through an emissary and message. i said what you're going through now is the easy part. it is getting off the court that is harder than getting on. i am still in the throes of that. i have in mind a bunch of things. i'm going to continue to be a judge part-time. and a sign up to sit during the winter months on the first circuit. i was appointed, as the introduction noted, i was

appointed to the first circuit before was appointed to the supreme court but i literally sat there one day. i heard one set of cases and that was the end of my first circuit career. i am sort of going back to try to become a real first circuit judge which never was before. i want to engage in some useful civic jobs in my own state. i have an element in me that says the real life of the nation is across the new republican the one to go back to mind and try to do something useful there. i'm going to go slow on the jobs that i take on, but i have taken on one a terribly not demanding

job yet that there is a committee of new hampshire citizens which was mentioned in the introduction that is trying to examine the state of civic education in the state of new hampshire and propose at some level of generality standards for a curriculum of civic education, a subject that has nationally fallen into great this repair. i have a bee in my bonnet about it. some conferences that justice o'connor but together at georgetown law school over the last couple of years were concerned with the problem of a tax on judicial independence. the first conference, i thought i needed to go to be polite. sander and steve said the thing out. the great surprise was that it was something really worthwhile.

it was just not another gathering for endless talk. what happened was the discovery that the root problem of defending judicial independence is that if one has no sense of the structure of government even as imperfect structure as ours, the notion of judicial independence has the attraction. independence from what? how can anyone understand how the judiciary functions without any sense of the actual constitutional organization of the government? as probably everyone has heard in the last year or so, a good two-thirds of the people in the united states cannot name and have no nature of the notion of the three separate branches of

government. that is scary. it is scary for the reason -- for the story of benjamin franklin when he was asked by a woman in philadelphia after the war convention had recessed what kind of government the proposed constitution would give, a monarchy or republic. the famously answered, a republic if you can keep it. you cannot keep it if you do not know what it is. i have signed up as a committee member to work on that. at this time yesterday, i was in a meeting. i'm going to sign up for some other things. i also, quite frankly, want to spend some time reading. it is very difficult to get any reading down once the court term starts. when summer comes, you sort of

-- it is like a sampling borderers. you want a little bit of everything because you do not have time to concentrate on everything. i want to do some concentrated reading. i have a very good on red library unread library. >> you're on a modern tries to offer some substantial fare. you are always welcome here. and what to think you very much on behalf of all this for your commitment to civic education today. [applause]

>> supreme court week is just two weeks away with an insider's view of the court through reporters and supreme court justices past and present. >> this is the highest court in the land. the framers created it after studying the great lawgivers in history and taking a look at what they thought worldwide was important for the judicial branch to do. >> supreme court week starts october 4th on c-span. the one line to c-span -- [unintelligible] /supremecourt. >> today on c-span, to carter at the carter center in atlanta. he and his wife talk about the current president and take questions from the audience. >> what are your thoughts