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Test captions Copyright National cable satellite corp. 2008 i used to tell the students on the advice of counsel i will not answer that. I talk to Justice Brandeis on campus every day. That should not make you nervous. When i tell you hes talking back to me that should make you nervous. When questions emerge as to the constitutionality of the search of a cell phone i am confident Justice Brandeis with would not ask what James Madison thought about the use of a cell phone. I am equally confident with regard to what jeffrey said with regard to business business, i think it is important the power of big business in 1905 was not because they were providing substantial amounts of money to fund campaign, the power of big business came because they were paying off ledgislators through patronage. That was the means by which big business, there was enormous business, the names mentioned today are museums in new york, melon, guggenheim, enormous concentration of wealth which we are once again reaching in this nation and in this world, but it was a different form of control. Today the form of control is not so much direct payoffs to politicians and hopefully in many states not the direct use of patronage, it is the enormous power to control the airwaves through huge amounts of contributions and packs. Lived to respond what you said about James Madison and Justice Ginsburg made this point in passing, but i think its a very important point, is that there is a very Popular School of constitutional interpretation now called originalism, which means tconstitution was frozen n 1887 and ask James Madison what he thinks about cell phones and we will have the answers to our questions. I think in terms of what Justice Brandeis wrote in his opinion, but also the example of his life, he was not someone who believed the constitution was frozen. He was someone who believed you had to that all laws, including t including the constitution, had to respond to what was going on in the real world it is moment. As originalism is something that is discussed a great deal and in many respects more popular than its ever been, Justice Brandeis is a wonderful recruit to the cause of a living constitution and someone who is who always spoke about how the constitution had to respond to what was going on in the United States at the time. Let me raise a slightly different take on some of the issues youve been talking about and i think this may be the one to get a chance to talk about and we may have to call this part of the program to a conclusion, but this is a conversation that will go on throughout the semester and i dare say throughout the next century, there will be those who will gather for the 200th anniversary, thats not our problem tonight. Justice brandeis before he is reborn as a libertarian on free expression, he and Justice Holmes are fightinding their fog and what most of us would call the wrong side of cases, the abrams being the most famous, where the clear and present danger test is actually borne as a justification for what we would call repression. Danger was found a little too clear and present. He ultimately would be responsible for unpacking many of that and setting the seeds for a different, more progressive Juris Prudence. Those cases in 1919 in the context that speaks to us directly today of threats of National Security. Whether we thought those were real threats, there were those who felt they were real then, just as similar issues come up now. What thoughts do any of you have or each of you have about how Justice Brandeis might speak to us today about the present role that issues of National Security play in Constitutional Rights both with respect to free speech, free expression, or privacy for that matter, rights to ones own information and ones own email, for example, as opposed to the governments right to protect the National Security to invade some of those areas . Ive never known you to hold back. Well, i was trying. A long pause. I think its interesting that i dont know if everybody knows, even i know, exactly what youre talking about but basically no, seriously, toward the end of world war ii, before world war i, often immigrants were being prosecuted, for example, for advocating that others resist the draft. This is the real context of the case. The question is, is that criminal . Does it present a clear and present danger . Brandeis was very early in his career as a judge and justice at that time, and i wonder whether he would have come to the same decision maybe 15 years later. But the cautionary note for me is, is judges when we get to areas of National Security, theres a tendency for good reasons to give great deference to the competence, intelligence, these days, but its not a blank check and i would i think even now and particularly ten years ago, judges were victims of an effort to intimidate as journalists were, as members of congress were, you know, engaging in treason, endangering the nation if you try to limit the executive, and i think we judges should be reminded that even the most venner in rabl of our predecessors, Oliver Wendell holmes, louis brandeis, in retrospect deferred too much and that we should, while recognizing the importance of distinctions and the relative roles between the judiciary and the executive and congress, when it comes to matters like speech, comes to matters that are just fundamental to the operation of democracy, we shouldnt defer too much even when theres great concern about threats to our nation or perceived existential threats. I think its been true throughout the history of the United States and we have made some dreadful mistakes, think of the internment of the japaneseamericans in world war ii, a vast overreaction and that wasnt even a law passed by congress, it was an executive order. Big supporter was warren. And the Supreme Court got into the act later but yeah, its okay. I think theres an important exemption to what Justice Ginsburg was pointing at, which was what the court did about guantanamo at a time when there were, you know, deep and reasonable concern about terrorism in the United States and al qaeda, you know, really in the relatively immediate aftermath of 9 11, the Supreme Court on three occasions said to the bush administration, on behalf of perhaps the most despised people on earth, the detainees in guantanamo, said you cant treat them that badly. I think when, you know, i never hesitate to be critical of the court, but i think, you know, when you look at how the court responded to National Security crises in the past, whether world war i or world war ii, the court covered itself with glory when it came to the response after 9 11. You had the first word, you may get the last word. Brandeis and holmes were good friends and what is wonderful about your change and vision to free speech is that it is a classic change in the originalism vision to an expanded vision. The original vision of the founders i think of the was that free speech meant only prior restraint and that is what holmes and brandeis initially understood, that you cant prevent speech from being spoken from prior restraint, but its okay to punish people who speak things you do not wish. Over the course of time, they observed how that in practice was being carried out. It goes to holmes statement that the life of the law is not logic, but experience. They experienced what the consequence was of that vision of the First Amendment and over the course of time, especially when some of their friends were being punished for their speech, including friends at harvard law school, then their vision of what it meant to have a First Amendment changed. I think part of what occurs and part of what occurred at guantanamo was a recognition of what the experience was of the absence of habeas corpus. It turned out that for a fair number of those folks at guantanamo, there was no, there there. And the experience of injustice was something that Supreme Court, Justice Ginsburg would know better, recognized as demonstrating the importance of having some legal resource in the court for what may be an abuse of power. I just one thing, we ought to change the question a little bit, i think we cant answer the question of what would brandeis say, but i think we can answer the question of, what principles guided brandeis and how did we apply those to the problems that were looking at today and i think we can learn a lot from there. I think one of the things that has come through our discussion is the freshness, i know shes behind me, i have pretty good vision back there weve been doing this for years. There is a freshness to brandeis, with all due respect to Oliver Wendell holmes, when one reads holmes one is taking a trip to the Juris Prudence museum. With brandeis one never has that feeling. There is a freshness that continues to speak to us, and we each have a favorite brandeis quote, im sure most of us have many, one of my favorites associated with this campus, brandeis challenged us when he said if we were to be guided by the light of reason, we must let our minds be bold and i think he meant that not in a light way at all and he understood to let our minds be bold is a challenging and sometimes uncomfortable exercise. It is willing to go places that were that were not sure that were comfortable going. He understood that better than just about anyone being born at the civil war and living through the second world war. We have launched an important discussion of letting our minds be bold. My fellow panelists who have done a splendid job keeping us led by the light of reason. Thank you. Thank you, fred. That was a wonderful way to bring this fascinating discussion. Ladies and gentlemen this concludes our program. If you could please remain in your seats until the panel has left the but in the meanwhile join me for an applause for Justice Ginsburg and our distinguished panel. Week nights this month were featuring American History tv programs as a preview of whats available every weekend on cspan 3. Tonight, a look at the Supreme Court Historical Society founded in 1974 to collect and preserve the history of the nations highest court. We begin with yale law professor justin driver on the 1956 southern manifesto, a document written by congressional members who oppose the Supreme Courts 1954 brown versus board of education decision which rules segregated schools were unconstitutional. Watch tonight beginning at 8 00 p. M. Eastern. Enjoy American History tv, this week and every weekend on cspan 3. Youre watching American History tv, every weekend on cspan 3, explore our nations past. Cspan 3, created by americas Cable Television companies as a Public Service and brought to you today by your television provider. The competition is on. Be a part of this years cspan student video competition. Middle and High School Students bes the start of a National Conversation by making a 5 to 6 minute documentary exploring the issue you want the president and congress to address. Be bold, show supporting and opposing points of view and include cspan video. Be a winner. Theres 100,000 in total cash prizes including a grand prize of 5,000. The deadline to submit videos is january 20th, 2021. Youll find competition rules, tips and more information on how to get started at our website, student cam. Org. Up next on history book shelf, Linda Hirshman talks about her book about how Sandra Day Oconnor and Ruth Bader Ginsburg went to the Supreme Court and changed the world. She looks at their impact and the first two women to serve on Supreme Court. This was recorded in washington, d. C. In 2015. Its about 50. Hello. I think were

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