Transcripts For CSPAN Federal Judges Discuss The Bill Of Rights In Modern Times 20170416

The mcallen theater at the National Archives. On the archivist of the United States and its a pleasure to welcome you here this evening. Whether you were joining us physically in our theater or watching on youtube, or joining us with our friends from cspan2, welcome. At the bill of rights day. Since Franklin Roosevelt first on december 15, 1941, it has served as reminder we should not take for granted the right to protect this document. Is a constitutional sources project and we thank them for their support. Forward begin tonights discussion let me tell you but to programs coming up the next month. Noon,sday, january 17 at we will talk about the new book three days in january Dwight Eisenhowers final mission about his prophetic farewell address. At noon on the next two days, january 18 at january 19, well show selection of films. We will focus on inaugural events. Programs and exhibitions can be found on our monthly calendar in print or online at archives. Gov. There are also copies in the the lobby and signup sheet for you can receive it in regular mail or gmail. Youll find pressures about other programs and activities. Another way to become more involved in the National Archives is becoming member of the National Archive foundation. It supports all of our education and outreach activities. An application for membership is in the lobby also. United states constitution is the oldest written National Constitution still in force. One of the reasons why it hasnt doored is the allowance that the framers made for peacefully amending it. Or the first actions of the First Federal congress in 1789 was the pass a set of amendments we call the bill of rights. It was necessary to expressly declare the rights of mankind secured under the constitution. During this 225th anniversary year, the National Archives for together a nationwide program of events and exhibits to celebrate and examine the bill of rights. We have posted several discussions, like tonight relating to constitutional rights. We put on a series of conversations on the right and justice around the country. Weve created several exhibits and educational resources. I hope you have the opportunity to see the special exhibit on amending america upstairs in the gallery. Outside of washington, d. C. Area you may have the opportunity to see the companion traveling exhibit. It is currently in dallas, texas, and will soon be in houston. The centerpiece of this activity is the 225yearold parchment document itself. The original bill of rights in the rotunda with the charters of freedom. It was on a bill of rights day ,n 1952 that all three charters the declaration of independence, constitution and the bill of rights or first displayed together in the rotunda. At the ceremony to unveil the documents, president harry truman declared, in my opinion the bill of rights is the most important part of the constitution of the United States, the only document in the world of protects the citizen against this government. The also warned of of the documents becoming a better than mommies in glass cases. The crowd of people who visit the rotunda every year do not consider the charters mere curiosities. Artist it was panel of judges here tonight know that the bill of rights has meaning for us every day. Two entries are panelists i will turn you over to julie silver director of our partner, the constitutional sources project. Julie. [applause] julie thank you. Good evening. Rook andis julie silverb i serve as the executive director of the constitutional forces project. We are an organization dedicated to educating citizens of all ages about the history of the United States constitution. I invite you to explore our Free Digital Library of Historical Documents tracing the constitution. Let me begin by thanking the archivist of the United States for the introductory remarks and thanking the National Archives are partnering to host this evening special bill of rights 220thent, celebrating the anniversary of the ratification of the bill of rights on december 15, 1791. The bill of rights articulates our National Values and ideals, including the guarantee of freedom of speech, religion, the press, the right to assemble, a promise of a speedy trial by jury, protection against double jeopardy and unreasonable searches and seizures, and the recognition of the right to bear arms. The bill of rights strikes a personal cord the way the declaration of independence does and the structural provisions of the constitution do not. At least, not for most. And yet, too few americans know the history of the bill of rights. A survey from last year found that one in 10 americans think the bill of rights includes the right to own a pet. For the record, it it does not. Before i invite our moderator and the same was panelists to discuss the bill of rights in the 21st century, we thought it would be useful to provide the folks even the program at home with a very brief history of the bill of rights in the 18th century when the document was drafted and ratified. If you bear with me, i will give you the legislative history of the bill of rights in two minutes. Or i will try. Some might be surprised to learn that when the constitution was signed in it did not include a 1787, bill of rights. When george mason of virginia proposed to be added to the constitution five days prior to the end of the constitutional convention, it was near unanimously rejected. The prevailing view was that the state decorations of rights was sufficient and the federal bill of rights was unnecessary or possibly even dangerous. So the constitution was submitted for ratification with no bill of rights. While the bill of rights became a rallying call for antifederalists, they were also interested in proposing and amendments that would alter the structure and power of the new federal government. For federalists like a James Madison, who we call the father of the constitution, he is also the father of the bill of rights, to him it was unacceptable. Madisons decision to draft and pushed the past the bill of rights should be understood in this context. Once the constitution was adopted newly elected , representative James Madison urged the First Congress to reject the nimitz that would change the constitution and instead adopt a bill of rights as suggested by the ratifying conventions in virginia and new york. By 1788, madison had also come to see the broader value of the bill of rights. He wrote to thomas jefferson, saying that the political truth declared in that solemn manner, as they become incorporated with the national sentiment, counteract the impulse of interest and passion. Madison intended to insert it inside the body of the constitution. This was ultimately rejected by congress. The house instead votes on seven supplements to the constitution, and that goes over to the senate for consideration. The senate reduced it to 12. Those 12 minutes and then sent to states for ratification and the anniversary we are celebrating tonight is when virginia on december 15, 17 91 becomes the 10th of 14 states to approve 10 of the 12 amendments, the 10 amendment we call our bill of rights. If you are interested in learning more about the history of the bill of rights, i invite you to explore his legislative history at the constitutional library and pick of the Washington Times article that is available outside in on the outside in the outside in on the Washington Times website. And with that, i will invite our moderator who covers the Supreme Court for the wall street journal to the stage, along with harvesting was panelists, judge Thomas Griffith and judge andre davis. Thank you and happy bill of rights day. [applause] thanks for coming down on one of the coldest bill of rights days in recent memory for our discussion on the 225th anniversary of the ratification. Of course, i want to say thank you for the introduction. I have to say is someone who covers the Supreme Court and the Appellate Courts as they interpret the bill of rights and other constitutional provisions, the great privilege to have three esteemed circuit judges talk about the first 10 amendments of the constitution and what they mean. Because, you know, they are on the front lines of figuring out what those words mean. They are not always selfexplanatory. And as judges, they confront hard problems about what those rights mean in the 21st century and will be confronting them in the years ahead. For just griffith, judge davis, thank you so much for coming out. We dont respect you to prejudge any cases but im sure our audience here and on seized and will appreciate how to think about the bill of rights and think about these questions and how to imagine what issues will arise in the future and the different ways we might have of applying these, i will not say ancient, but quite old words in a digital era. So thanks again for coming. We will have questions later on, but we will try to have a conversational discussion about the bill of rights. I thought as a start, the white house issues a lot of proclamations and preparatory announcements, and one of those was emailed out yesterday was the president s bill of rights day proclamation. I dont know how different it is from those issued every year because i have not read them, but i thought might of tonight we might look at what president obama had to say about it. In his message to citizens, he said, as originally created, the bill of rights safeguarded personal liberties and ensured equal justice under the law for many, but not for all. In the years that followed, courageous americans sacrificed to expand this to more people. He goes on to say he talks about the way these rights were expanded as the country caps off the stains of slavery, women got the ballot, workers organized for the rights. These experiences remind us that our freedom is intertwined with the freedom of others. He adds, and you can read the whole thing on the white house website if you wish, that the progress was never inevitable but as long as people are willing to fight for justice, we can work to swing open more doors of opportunity and kerry for division of liberty and equality for rations to come. That sort of leads us to, i think, thinking about the bill of rights, is it static and frozen in the year 1791 or is it something that is applied differently, or evolves . Or is there some way of reconciling the original language of the bill of rights and circumstances that we see today that are perhaps a little different than perhaps even very wise people like James Madison might have foreseen back in the 18th century . What are we talking about . Are these words that only have relevance from their original conception or do they take on different meanings today . I thought we could throw it open. Judge griffith, do you have seniority . Do i . If so, then with that great distinction comes responsibility. Judge griffith it is an honor to be here, and i thank the National Archives. Im grateful to be with my esteemed colleagues. It turns out the question you lies a heart of a rather vigorous debate that has taken place since the framing of the constitution. And the views i have developed over time are that, you use the phrase that could be pejorative, you said are the rights of the bill of rights frozen in time . I am of the view that there were certain values expressed at the time of the founding, at the time of the bill of rights, and they did express a definite view of the relationship between the individual and the state with respect to certain activities and that it is our responsibility as judges to enforce those. But not to change them. The job that we are about is not determining the merits of the case by our own light of what is right and just and equitable, but by the law, as was ratified by the people of the United States. So im of the school that if there are going to be changes made to the law, to the bill of rights, there is a method to do that, and that is the amendment process. It is not appropriate for elected judges who are for the most part politically unaccountable to make those changes. To be sure, we will get to it, the application of those principles to new circumstances is necessary. But i view our responsibility as to identify the value that is expressed in the law, in this case, in the amendments, the bill of rights, to identify that neutrally to the dispute at hand. Jess anybody disagree . I heard a lot that i agree with. I want to join in thinking the and mys and you jess colleagues for the opportunity and i want to salute those of you out there for coming out on a brutal night. The bill of rights did not spring from madisons head. There were lots of state constitutions about at the time of ratification. Many of the rights we see in the bill of rights had a healthy and robust history even as of 1791. They are very interesting insofar as they contain both prescriptions and proscriptions in government relation to the individual. But i agree with what has been said. The text has not changed and i suppose without being too semantical, the rights have not changed but technology has brought about many changes. And subsequent amendments have brought about many changes. And, lets face it, the Supreme Court decisionmaking has changed. All of that informs modern day interpretations of how one applies the bill of rights in the pragmatic reality of judge decisionmaking here in the 21st century and that should not be remarkable, it seems to me. I want to add thank you. I dont want to be repetitive but i also dont want to be ungrateful for this opportunity. One of the things we need to keep in mind is that in a day and age when we are used to a laws weighed almost by the length and size, the bill of rights is really aces sink and spartan document. Principlesundational can fit on one side of one page. Wordsocument and the are very in cogent. People are guaranteed due process of law. Congress shall not make laws respective of the establishment of religion. That is what we have to work with. Are you say frozen in time, they are written to our constitutional order, into our constitutional document, but and those are the words. We do not change those words except through the process of constitutional amendment. But applying those words to the varying factual circumstances and disputes over the course of more than 200 years is what is challenging. And what instead of thinking something that is frozen and mobile in a negative way, i think of it as the phrase the most commonly associated with robert frost. That is good fences make good neighbors. He did not actually think that in a human to human context, but in a governmental structure a division of power like we have is actually act. Is athe bill of rights is hugely important designation offenses, a division of power. What remains for the people. There buts fences are policing them and figuring out where the exactly the fence falls in the circumstances that are changing as the country changes is a challenging task we face. Of a the way, as a parent fiveyearold girl, i would say frozen has a very positive connotation for some of the younger people. And not just girls. [laughter] jess as late Justice Scalia pointed out, the bill of rights is more about individual rights and about what rights and individual has to protect himself or herself from the government. But as well, it was noted, the Supreme Court and the lower courts have applied those words over the centuries and tried to give the specific application of police and individuals and with a mean individual circumstances. How far are we . Is there an annotated bill of rights you can say based on traditional interpretations that answers pretty much most of the questions that might arise under it, or is there is still great unknown related to what those very terse but eloquent words mean . We just started the seniority thing. [laughter] to keep us employed and actually in reality, its church w often as a judge i cant believe this has not been answered by now. That is because defenses are written in the constitution but the country itself gives growing and changing and the nature of government changes. In new questions arise, Technology Comes along, and what is a reasonable search of a stagecoach versus what is a reasonable search of a car using gps technology. How do you answer those questions . The issues do you keep changing and coming up in new forms. Circuit, have jurisdiction over guantanamo. Appliesthe constitution to enemy combatants detained on land rented by the United States in a foreign country. As it turns out, that had not been answered when it first came up and had to be answered. There are two applications that arise all the time. The first answer week it was not acceptable. That was before i came along. [laughter] just kidding. So i think it is important, we are not here to rewrite the constitution. I do not think any of us want to do that. In fact i dont want to live in , a country where judges get to rewrite the constitution. We can see countries like that around the world and that is not what we want to be. It is a challenge. The question of whether the answers are all in, the answer is absolutely not. It is remarkable how much has not been decided and it is equally phenomenal how we have not even thought of so many questions you. When i teach law school, i often point out with emphasis that it was not until 1976 that the Supreme Court actually decided the question, do you need an arrest warrant to arrest a person and a public face . You might think considering the Fourth Amendment and 200 plus years of criminal adjudication that question surely wouldve been presented. But there it was. Another example, under the Fourth Amendment, do you need an arrest warrant do you need it to make a routine arrest in a persons home. The Supreme Court has yes. 1980. You can understand my law students at the time would say, wait a minute, surely the Supreme Court is gotten around to answering the austin. There are lots of very obvious questions we can anticipate, but so many we cant possibly anticipate that are surely if not yet in the pipeline or on their way to the courts. I have my theory for why that is taking place and why the bill moreghts is therefor relevant today than its ever been. That is because we live in a time where there has been this vast expansion of power of government. The bill of rights is supposed to regulate interaction between the government and individual liberty. As government power has increased significantly over the last 40, 50, 60 years those answers come up more and more. We find individuals and directions with the government implicate liberty interests and other interests protected by the bill of rights. Thats what i think is an ever present issue, ever present challenge. It is not frozen in time. These really are dusty old concepts five people wearing three cornered hats. They were alive then. I think in many ways they are more alive today than ever as we try to figure out what does liberty what do these other rights mean in the modern setting where the government has vast power into virtually every any of our lives . Judge griffith makes a point. I will remind us how chief Justice Rehnquist made it a routine part of his annual message on the judiciary lamenting the federalization of crimes. It seems for a decade or more this was always part of the end of the year message to congress. Into the people. And that is the point you are making by your comment. There is another thing and that is also monumental changes that have happened over time to the bill of rights apply. To whom it protects. Originally enacted, the anniversary we are celebrating a flight limitations of the federal government only, not the state. Who the people were was a much narrower bunch that has come to be over time. The civil war, the power of grownin our society has the number of people and its application after the civil war most of the provisions to the , states. And so it was a bit younger document in that sense. Not chronologically but in the breadth and scope of the applications. I think a lot of people understand upfront. The last thing i would say is that all of the government changes, but i think there must be something about human nature and how we can direct with each other because the 10 commandments in and around way longer, and people still fight about that. Its a neat releases and document its an equally sustained document. What the document says and means and applies in their everyday lives. Just a little historical note, there are many communities around the country for you can see a 10 commandment monolith in front of a public building. It was, believe it or not, a Marketing Campaign for the will for the movie. We wrote a little bit about it in the fox studios. Eaglesternal order of were the stars when it unveiled the model was around the country. Theres an interesting story there, but that will be on another night at the archives. The firstvolve amendment which will get back to. Hiding some that is worth commenting on it just occurred in our agreement that is very fundamental. We all agreed that the role of whatudge is to understand the amendment means and to apply it dispassionately. We all have different backgrounds. We were appointed by different president s and thats a few we all share. That is not a view that is shared universally. There are many in the academy and i have been times in our nations past for some judges took a different view, thought about the provisions of the constitution as an invitation to judges to construct their own vision of fairness or justice. That is not a view that, in my spirits, that rains in my court or the courts of appeals. I think its important for the American People to know that. The judiciary, the battles over the judiciary are highly political but in my experience, 11 years on the d. C. Circuit, as regardless of the president t appoints them, and its as Justice Kagan said, it is the law all the way down. Judges should not be using their position to advance their own view of what the justice ideal on to be. Ought to be. We are doing the best we can to follow the law as enacted by we the people. And something judge davis said i think is really important in terms of how the three of us go about it, we do not get to look at the constitution, understand its history and decide on our own. We all belong to an inferior court right . , it is the Supreme Court that , athe ultimate arbiter least as far as were concerned, is with us relations mean. And so that means that even if i have a personal view that would differ from the Supreme Court s about some meaning in the constitution, precedent requires these three judges here and our colleagues follow what the Supreme Court says. Well, this might be more interesting discussion if we were three justices right . ,the rules work a little differently for them. There is an opening, i hear. So they want to raise their hand [laughter] ive never heard a more elegant description of lochner versus new york. That is a due process question. One point for the audience and people who may not be reversed in legal scholarship, in law the later enacted measure takes precedence over something that came before, release helps interpret something that came before. Were talkinges about is you have other mammoth like the 14th amendment and subsequent amendments that give a perhaps another angle to look at prior and i can provisions that initially only applied to the federal government and the bill of rights. Because there are suggestions in the 14th amendment about application of the bill of but not athe states direct command, that is a fair bit of leeway we have seen in the 20th century. Particularly about how this measures apply. That is just a background. There are subsequent amendments which in some ways more meanings to what came before it and reflected what people saw the time. Correct me if i am wrong. The classic example of that of course, i am backing you up here, there is no equal protection clause in the fifth amendment but there is any equal protection clause in the 14th amendment. The civil war amendments. The Supreme Court seems to me, correctly, inferred that the meaning of due process in the fifth amendment surely must include the equal protection guarantee that was explicit in the 14th amendment. So that is sort of historically iconic example. Is there a specific thing that would be different perhaps if it wasnt russian mark if it wasnt . Well, if there was a protection clause in the fifth amendment, maybe the 14th amendment would not have been necessary. Could be. But judge davis was talking about a famous case in the 1950s were after the brown versus board of education found that equal protection applied to the states. There was not the words equal protection applying to the federal government. The federal enclave and segregated schools. Could you have a situation where segregation was illegal in all 50 states but completely constitutional in the capital of the United States . People here cannot vote or something. [laughter] joe. Tle constitutional forgive me. Joke there. Forgive me. Lets talk about some of the provisions of the bill of rights and how they might apply. The first part applies to religion. You have congress. Over thet make laws establishment of religion or prohibiting the free exercise thereof. Theave seen those clause , free exercise clause, the establishment clause, very important in litigation around the country. They constantly come up. The first words in the bill of rights still are the measure of dispute over what exactly they mean in which particular case. They apply equally to various established religions like christianity, judaism, islam. Numeral ones from utah that believe in mummification and have its own alternative to the 10 commandments they wanted to put up on a monolith. How do you figure out what those words mean . I mean, establishing a religion to someone in the 18th century may be met the established church of england, right . Or the official government church. That is what establishment meant. What do they mean now when we have a country with many, many, many more religions where the government is not innate in a position to judge the validity of one religion over another where Government Programs and policies conflict with tenants of different religions. All you have got others have a dozen words in the First Amendment to think to help figure it out. How do you approach a question like that . This is a matter of history. We are talking about trying to understand what the framers intended by that. What was the understanding of the public at the time the amendment was discussed. From ratified. That is a historic request and we are not historians. At least i am not a historian. We are generalist. At least as i perceive it, the quest that we are on is a historical quest. To identify what is the value that is being protected or expressed and how does that apply in the circumstance that may be very different in some ways than it was before. At least that is how i approach it. I start with the history of the matter. I would say that first of all, you have to start with the whole text. It is not just an establishment of religion, its laws respecting established religion. We have to decide what established means and what religion is. Sometimes that becomes an issue in its own right. We are the lucky ones. We are not taking the first cut of this document. It has been interpreted by many judges and justices before us and so in addition to history we look at what the Supreme Court has said. What it has said those words mean and the lines it has sort of drawn. And that at least gives us a framework for trying to figure out how the next step, the next link in the chain is supposed to go when you see the dividing lines they have drawn. What is ok and what is not ok. Thats an ongoing work in progress in the since that decisions are always coming. I always find it really helpful to look at those decisions, though studies. Not just what they held in their case but the reasoning and principles they give, sharing their ideas on what the documents say and what the line was that the bill of rights meant to draw their. Ere. Hre and i think interpretation also draws on the ongoing dialogue that takes place between the people and the courts and especially between congress and the courts and particularly in the First Amendment context, drawing on that congress has spoken, drawing on what congress believes those words mean or should mean because congress has a voice in the interpretation of the constitution and the bill of rights every bit as much as the courts to. Although courts, the Supreme Court, is the last word, there are lots of other words out there to be spoken in the effort to draw meaning from these words. That harkening back to your earlier comment, there is this dialogue because on that, as i say plays a role in , figuring out what those words meant back then and what the Practical Application of those words are or should be today. If i could add, people do not come to us and say well, there is an interesting constitutional question, what do you think . We have an adversarial system of justice where cases come to us and we dont reach out to decide issues. People come to us in terms of the body of the cost duchenne body of the constitution. And, they presented through the lawyers who tell their stories. Here is the problem. Here is the conflict. Here is the impact. Here is what it means. That gives a real flesh, literally, flesh to what the dispute is. And evaluating how was the government operating on this individual. What impact is that having on their religion that gives us a concrete framework in which to take those precedents, take those Historical Documents and apply them. It is different from other countries where they have a much role what the thing offering advisory opinions. The courts have a much more circumspect role in that sense. As judge rivert and explained we are not elected and we are not writing the constitution. We are here to solve problems people have. This religious liberty issue dramatizes in high relief the current mess currentness of the controversy that the bill of rights. It is something remarkable that happened in my life. The congress of the United States unanimously passed a bill called the religious freedoma act. President clinton sided with great ceremony in the rose garden. He was one of his signature achievements. It was not a partisan issue. 30 years later it is a very partisan issue. The phrase religious liberty is for many a code phrase for bigotry. The same bill that was passed unanimously by congress causes a great deal of controversy in states today. Im just mentioning those to say how fluid the situation is and how alive these phrases are. They are very much alive. Courts in the coming years will be faced with these issues about what does religious liberty mean today in the marketplace and the public square. Its a fluid situation. We are 15 into the 21st century. We have a bit to go. Do you have thoughts and what of may be mores specifically we will see in terms of establishment of religion or free exercise of religion . What do you think might be coming down the pipe when you look at and take the crystal ball on the free exercise. Its our National Commitment to nondiscrimination, equal protection, and our National Commitment to freedom of religion. And how that plays out. Is in fronte that of us now. When you think about if its exercise or free exercise of religion, an issue that comes up is in the Supreme Court recognizing and sex marriage. A lot of americans are religious objections to it. To what extent do they have to their commercial activities support or at least serve samesex marriages. Thats one of the issues we have seen as a state court issue. What is that boundary. One can imagine other questions coming up over the century ahead about new and different religions having different objections to Different Things that could arise and drawing that line is something that is hard. Is interesting and Supreme Court has enunciated a rate that was not recognized before. Think it is not a linear process. We dont say lets your lets deal with the First Amendment. That is not how it works. What happens is you have the religious freedom restoration act that was responsible for retracting the prior understanding of the scope of the clause. At the same time but maybe changes or shortly thereafter changes in the scope of the equal protection clause and roles of states versus federal government getting changed over here. There are lots of pieces getting interpreted all the time by the Supreme Court. Ll different amendments a variety of amendments at every turn. And how it applies to our lives. Issues seem to come up because they understand interpretation of the Supreme Court that has changed. Here is the good news and bad news. Ae constitution seems to be part of almost every political discussion that takes place. In any election. It is fashionable. I know julie has her pocket copy of the constitution. I did. To have fashionable your pocket constitution. That is great. Themore education, the more better. The bad news, it is an easytounderstand. These are tough issues. Forth in spare language. Language that was written in the 18th century. We dont talk that way today. There is the rhetorical challenge of reading all language. Courtsan that we have who struggled with these for years. And to try to understand the historical setting and understand the development of the issues over the years is not easy. It is not easy work. It is hard work. But we can do hard things. That is what citizenship is to be about. I offer that because as a citizen and even as a judge i am a little bit wary of people who folks who come before us in court and say this is clear. It is easy this way. It is not. They are difficult issues. We just identified one. The competition between nondescript pretzels and religious freedom, those are tough issues. They need to be resolved by thoughtful citizens and judges. They are big challenges ahead of us. You may even get them within the First Amendment. There are many cases about competition between free speech and free exercise of religion in the establishment clause. All three clauses coming together. When government recognizes that or theyve been establishing religion. Within the methods they can within the amendments themselves they can try to figure out where those lines are and it becomes quite complicated. That is right. What you are hearing a description of and you know this intuitively is a clash of values. A conflict in values as a country. As a society. As a democratic family. We have a number of values that come into conflict. Indeed as you just heard from , our colleagues, many conflicts arise themselves within the context of the bill of rights guarantees. And it is hard. It is hard. It requires hard work on the part of judges. Part of what this program is about, it requires hard work on the part of the citizenry to do the work as best you can given where you are to understand the document and to guarantee so you are an informed citizen and can be a part of that dialogue to which i refer earlier. Let me ask you about one of the things that i think is foremost on peoples minds when we think about the topics which is the effect of technology on these different rights that we see. For example, the First Amendment refers to freedom of the press. Well, in the 1790s the press was a thing made out of wood with metal pieces and the letters and you had to twist it and you printed a page. Now what is the press . Anybody with their phone and twitter. The freedom from search and seizure in the 1790s. The search was the redcoats grabbing you and looking through your pouch. Algorithmow can be an in a server sitting somewhere or in a satellite. Reconcile these massive technological changes that by their very scope there may be does the quantity of changes affect the quality of the rights or the protections . The genius of the founders. Justice marshall was want to say , and you heard it echoed in justice of the president ial statement today. The constitution was just a remarkable document, but it was not perfect. There is a perfection in human endeavor. Justice marshall used to say the amendment process, including the first 10 and others, one of which we celebrated this year giving the vote to half of our , population 100 years ago there is a lot of imperfection there. But the genius of the founders was to craft the document, including the bill of rights, despite the specificity that you find in many of the amendments that would account for the unforeseeable and the unforeseen. Yeah, who is the press today . Some blogger . My daughter, who texts her friends about something of Public Interest . These are hard questions. As judge griffin said, we start with the text but the text is not going to give us reliable answers. The text alone today will not give us reliable answers to these profound questions and so we have to look to other sources beyond the text, to tradition and history. But even the text, tradition, and history will not provide the answers. Yeah, it is tough work. So go and tell your friends you met three judges tonight entity really tough work. [laughter] i had deep privilege of being threejudge panel of the d. C. Circuit that first consider the case that became the jones gps case. The case was whether the police attaching a gps to a car without warrantt violated the clause of the Fourth Amendment. It was a fascinating case. The briefing, the arguments, the lawyers were spectacularly good. I cannot disclose what took place in the conference but i took a great deal of pleasure and noting the press accounts assumed that judges would have various views on this issue by virtue of the president that appointed us. When we got the conference all the press accounts were entirely wrong. Because what we were dealing with was a novel application of a longstanding principle. How does it apply it in a circumstance that has literally never been have before . It took us months for the three judges to decide what the outcome was, that is not typical. , we know whatment the outcome will be. And this case it took months and exchanging memos backandforth. Issuee wrestling with the of what does the Fourth Amendment mean when it comes to gps surveillance. Obviously if you talk to someone in 1791 they would have no idea what youre talking about. But the historical work was significant because of what you are try and find out what is at the heart of the Fourth Amendment. It is such a critical and important bulwark against government overreach into the lives of citizens. I would like to report the Supreme Court adopted our reasoning. It did not. It up with the same result we did, that it was unlawful but for different reasons. But the struggle of watching that process unfold. The struggle with the historical question. Tying to identify the value in seeing how it might apply to a completely novel circumstance was actually an exciting adventure. You may recall from the case as well that there ended up even being lines talking about, what would happen if act when the bill of rights was written they had taken something to put in this language. So you do try to analogize as best you can. It is hard to try to analogize and itsybitsy constable. But what was the line drawn here between government, power, individual rights . When you think about it as an analogy, reference, something we can look to. That is what we try to draw upon. Yes. This was a case where, as judge griffin said, the police slapped a gps tracker on a guys car. For legal purposes they did not have a warrant. The government argued, if i was a cop on the street i could just follow him down the street so it was the same as if i had an unlimited number of cops that could follow someone down the street every day of the month for three months. It is the same thing. The washington, d. C. , circuit said, no. It is not the same thing. The Supreme Court said the same thing. They had different reasoning but i think it was a unanimous decision in the Supreme Court. You had a majority of opinion, a concurrence by Justice Scalia, and a minority opinion but they all agreed this was a search. Whether it was reasonable did not come up. What struck me was i was watching the wire. In season two, they just do that. It seems like such a novel things but they are actually in a garage and they just put the track on the car and it is actually happening. And so they were just doing it, ok . Maybe it was sort of part of and parcel of the police here in the chesapeake region. We all know life imitates art. 15 years ago, Justice Scalia in a remarkable opinion anticipated a piece of technology known as a thermal imager. The argument the government made in that case was, we could this had to do with marijuana grow operations in oregon and one of the arguments the government made was, we could station officers outside the house to detect the rate of heat escaping from the house by measuring the relative rate of snowmelt from the roof. Which is certainly true. And Justice Scalia said, no. It is not the same thing. So the practical considerations of cost and traditional practice do come into play. Apropos the earlier comment, Justice Scalia wrote it in favor of the Fourth Amendment and Justice Stevens wrote the fourth justice dissenting opinion so one cannot always predict based on sort of traditional notions of how judges are going to actually comment when a real case presents itself. Ive seen judges will always be on the other side of each other to matter the issue. [laughter] things are evolving. Life is changing. Things often do not come out of the blue. Sometimes they do but usually you have information. How much information can be accumulated and collected. How much information the government could get. We have the same issue when we saw the Police Practice transition from fingerprinting to dna, right . The amount of information you get from a fingerprint is one thing, swabbing the inside of someones cheek is another. Where does that cross the line . When government gets more information is it getting too much or is it information it needs for identifying purposes . These are the types of balancing requirements that are built into the Fourth Amendment. Not just the technology itself but what the technology can sweep in. And the justice opinion in the case just referred to was quite emphatic in its reliance on current knowledge that the dna protocols used by the fbi and the state for socalled dna fingerprinting would not reveal anything about a person other they have the identity other than the identity. There are very reputable scientists out there today say that assumption with such assurance may not be true. We do not know all that we might come to know about what is in this socalled dead dna. So it is a moving target. The bill of rights is not a moving target but application is a constantly moving dynamic. Cracks and just for our home audience, that was another case for our home audience, that was another case and that was Justice Thomas who usually agreed with Justice Scalia. In that case agreed with the other. Police said, were not looking at that and the court accepted it. But we will be looking further at whether they can or not. The courts have upheld warrantless aerial surveillance. Of looking in peoples backyards. That is predrone. Now that everyone can get a Remote Control device and flight over to see what is going on, maybe that will be a question that arises at some point. Let me ask, believe it or not we have a we have 30 more minutes but i want to keep going along this. You know, the Second Amendment is one of the amendments that until very recently did not have an authoritative statement from the Supreme Court at least on whether it contained an individual right to possess a weapon at least in some circumstances. The court said by a 54 decision that it does and affirming a washington, d. C. , circuit opinion. But technology affects weapons. One question out there is a taser kind of weapon protected by the Second Amendment right. You know, weapons at the time of the adoption involved muskets or knives. How do courts approach that . How do you decide if a taser is a weapon that is included . What about other types of new devices that might be weapons or might be recreational devices . There was a case in new york involving sporting equipment. Is that sporting equipment or a weapon . How were we going to draw that kind of line when the framer is thinking about colonial militia, not tasers or stun guns or nunchucks. I dont know. In the heller decision, they said it was not limited to simply the types of Technology Available in 1791 minute that introduces the question you asked, what technology doesnt include. Obviously we cannot answer the taser question now. That has not been resolved. But i think the methodology is the same. You try to identify the value that was protected in the amendment and apply it here. I will say this. About the Second Amendment. I was on that case that became heller. It was called parker in the d. C. Circuit then it became heller. I do notnow anything about guns. I am a suburban life. Guns scare me to death. But i can remember seeing the case was going to be on my docket and with some excitement i blocked off an entire week i was going to work just on this case. I remember getting all of these law review articles out on the briefs and i was going to spend a week working on this and i began with recent history, reading an article by stanford levinsohn in texas. And someone from yale, from harvard. Start with political progressives to see what their review was. It took six or seven hours to get through this. And to me, the history showed whether i liked it or not, it showed in 1791 there was this background assumption that people had a right to firearms to defend themselves. But i blocked off the whole week to prepare. I went in and read the briefs. It was not a particularly difficult case after that. The Supreme Court was split 54. It was a significant case in many ways because the majority and minority both used this model i was talking about of learning the history, trying to understand what was happening in 1791. What was the value that was codified and as we know, the Supreme Court decided that there is a right to bear arms, to defend yourself in your home. That is as far as theyve gotten right now. But now we are dealing with what is beyond their and those are unresolved issues for us. What is amazing about this case is that it took until relatively recent times and even after that that they decided the Second Amendment right applied to the state. They had not even decided if that was a right against the federal government or only the state government. While that was a case involving what kind of arms were recovered, there is still, where you get to these arms. Still very much open questions. Understanding that security must come into play at some point. So, there is much yet to be resolved in that area. On the technology front, the types of arms. While we still have rifles back someone like they wouldve had in the day, there are as we know, incredibly powerful weapons, automatic guns, bazookas, those kinds of things. And how do we apply it to that level of legality still has to be resolved. I would like for you to come up with questions. We will keep talking while you lineup. Both sides. But, again, and the questions we asked i am trying to, you know, talk broadly about these issues. But we will take an audience question. Justice, in one case Justice Marshall made the decision they should not be moved and president jackson said Justice Marshall has made that decision and should go and force it. Do think the new president elect is going to have the power to abandon the bill of rights and the constitution altogether . This is a question about what is the authority of the courts when they make a decision. There is a story, we do not know if it is it true story but it is too good to not be true so lets assume it is. The Supreme Court ruled in favor of the cherokee indians who were being dispossessed of a lot of land. They had a treaty right to president jackson, soon to be on the 20 bill. He said, well, chief Justice Marshall has made his decision, let him enforce it. You and what army, basically. Well, what is the authority of the courts to have the government. We have the current president or the next president or the sheriff in some county in a remote part of the country. Why do they follow your interpretations . How can we know what they are when they have such a big entry. People in the power from the white house to the city hall to the local county jail. Well i doubt that anyone of the three of us wants to say a word about the president elect. But i will say this. And others have said it far better than i could possibly say it. And there was an allusion to it earlier tonight. Perhaps this word was not used, but as unelected members of the third branch, what we hopefully bring to our work and i know my colleagues sitting here do, is a humility in the work that we do as the justise said earlier, she would not want to work in a system where judges could write the constitution. What i am trying to say is it is sure faith in our integrity and commitment that makes it possible for us to do our work. We are known as the least dangerous and should and it has been said we do not have armies. We cannot raise taxes. It is only the belief of the people in what do that gives meaning to John Marshalls famous dictum that it is the constitution and judicial branch. I and my colleagues to a greater or lesser extent, having the privilege to travel around the world, africa, east asia, and i wish they every citizen of the United States could share in some of the travels and see for example, it in zimbabwe the abject fear of the judges of the Supreme Court when visited by one of the ministers from the government who said, we would hate to see anything terrible happened to a member of your family in response to a judgment the court had rendered. So it is important that with our judicious independence which is critical to the work we do and to our real system of democratic government, constitutional the democratic government that we stay in our lanes. And continue to work to earn your trust and regard and this includes members of the elected branch so they continue to give credence to our judgment. Judge davis is exactly right. It would be a mistake if anyone left the session thinking the bill of rights and these important issues are just for lawyers and judges. We have to decide the cases that come to us. But appreciating and valuing and defending the bill of rights is of i think a patriotic duty of every citizen. Please understand the bill of rights, as we focus on the 220 5 anniversary, is part of the original constitution. A structure of government dividing up between the three branches of government as we know. And these states and the federal government. But it is a full document and has to be read together. The bill of rights as to be read in context of separation of powers, the role of the different branches and implementing, enforcing, and respecting the bill of rights and all parts of the constitution and i think it is absolutely critical that people teach this to their children. We have to teach it to our children in each other but we also have to understand the values. It is really what defines us as a nation and makes us different in so many other constitutional systems of government. If we do not appreciate them, if we do not understanding and defend them, if we are not willing to talk to each other, if we are not willing to understand the suppose of the beautiful diversity of our country that is embodied in the bill of rights, the free speech, the freedom of religion, the equal protection, then you have to live that in your life as well. And, we really need to come together as a country on that and that is that we believe deeply and mightily in our constitutional structure of government. We may not always agree on exactly how the words apply in each new case by we treasure and revere the values and we respect the integrity of our governmental processes and look closely as they do their best efforts to apply it with integrity. Judge us on the integrity of our reasoning. We might disagree by it should be in general as we discussed tonight. I think how frequently when the Supreme Court decides an issue that is contrary to what the president and executive branch thinks, what do they do . They follow the Supreme Court interpretation. That is a remarkable testament to the strength of the constitution and to the society that it is created. But that will only continue and happen. We heard a lot about Justice Marshall who famously said, it is only going to happen as long as the judiciary has credibility. That we are not just junior politicians. That what we are is trying to apply the law as it has been enacted by week people. I think the history is remarkable in that regard. That when the Supreme Court decides an issue, a constitutional issue, the executive follows it. The unbroken history. Right. History does not only moving one direction but it is true that example from the 1830 cause, Justice Breyer wrote a book where he points out by the 1950s there is the Supreme Court and the history had gained so much that ability and our system that the Supreme Court said when they said they had to be integrated for the schools in little rock, even the president eisenhower disagreed he enforced the decision. On the other hand, former House Speaker Newt Gingrich said otherwise. These things are always open for reconsideration. Another question . Thank you for coming tonight. As a college student, there has been increased concern that College Administration is kind of stifling free speech on campuses. My question is, how do you think the application of the bill of rights evolved in its application on College Campuses in the past 10 years . Well, part of it is, the constitution does not fully Police Interactions of private people. It has to be a public university. Or college that you are dealing with. And then, there are First Amendment rules about freedom of speech and people can bring challenges. We have had those involving the university of for june you as university of virginia as well. Free speech, religion, as we talked about before. We wait for the cases to come to us and decide what is in front of us but there are lines that have been established by resident. I am sure new ones will come. One thing i hope this is not so far off topic, but you wont forgive me, but because bill of rights are absolutely foundational and elementary but they are not everything. They are not everything. They are defenses, lines, basic foundational protections people have. But we have congress, state legislature, many levels of government that can pass more protections. They can go the on and what the constitution requires. People should remember that as part of our constitutional structure as well. Sometimes when they go you want one direction it raises problems in another. But to the extent people have concerns about how their colleges being run, the Court Constitution bill of rights and the most basic foundational lines, that does not mean that is the answer. Students have voices. Taxpayers have voices. So it is a larger conversation then this. And obviously we cannot comment on any particular dispute. Freedom of speech is discomforting, right . The idea behind freedom of speech is that each person has merit and value and gets to speak his or her mind in the public square. Freedom of speech is only in my mind, really valuable when you are free to hear uncomfortable speech that challenges you. That has been an unbroken line. Decisions by the Supreme Court of the United States have established that is what it means. So is freedom of religion. Freedom of religion is intended to create a space where people who may have very different views than you do about the nature of reality and cosmology, they are intended to create a republic where we feel uncomfortable, right . As judge davis said, it struck me a great deal when he used the word family. Family is in overused word but we have this collective idea, this enterprise where we are trying to find space for our fellow citizens to express their thoughts. To live according to their own consciences and that means it is going to be different in the choices you and i may make for our own lives. We need to be mature enough as citizens to be able to say that there is space for all of those views and expressions. One little teeny voice of dissent. I do not read the First Amendment as saying that everything has equal value. Than it would protect rantings and ravings or harming by me but i cannot carry a tune. It is a line drawn in the sense that government just cannot go there. It just cant go there on the right of people to free speech they have it if it qualifies and there are long layers of constitutional decisions. But i think what the judge was referencing was that the constitution is only meaningful when it is uncomfortable. As long as you protect the speech you like that is nothing. You can go all around the country and the world. It is only the protection of the speech that you dont like. That is you are true commitment to your constitution. It is protecting things that may not be in your selfinterest and respecting the rights of others to express those views knowing that next time you might be the one that the majority does not want to hear from in so that is really what the commitment is about. Ok. We will take a question here. What if in this discussion, instead of having a strictly and narrow historical definition of the bill of rights, we had a functional definition of the bill of rights that included article one section nine and 10 that included especially the 19th and 14th amendment within our concept of the bill of rights. Discussing the evolving meaning of press and search and arms and discussing the evolving meaning of equality. I think that its happening. We just alluded to Marriage Equality. I think that is an example of the Supreme Court renewed close look at what equality is. Justice brennan, early on said to the effect the equal treatment of unequaled is at first a violation of equal protection. There are strands of doctrine. There are lines of cases, the Marriage Equality case ring the most recent and profound and of course this is the 20th anniversary this year of lobbying. So, there are all kinds of developments in the law that require that although the text is not change, requires the justices to take looks at new facts and figure out what they mean. So i think your desired outcome what i want to say is, the 14th amendment has its own programs of those are definitely important questions as we look at the expounding of the constitution but this is my to buy the first 10 amendments this is brought to you by the first 10 amendments which do not address the quality directly. Those are interesting questions. We have to look at the first 10 amendments through that lens from time to time but we have not even gotten to the ninth amendment yet, which you can have a whole trippy evening discussing. The bill of rights was supposed to be in some ways a harmonizing document. Today, as we have discussed, the First Amendment, Second Amendment, parts of the fourth, the fifth, the eighth, the ninth are subject to a lot of acute disagreement in our country. I am curious to here from the three judges tonight to what degree should we celebrate that disagreement or to what degree is that disagreement, that acute disagreement, a cause of concern . I think we start with madisons purpose. I think we start with madisons a fundamental concept that people of rights over government. That the government cannot define all of their activities and existence. That is fundamental so in that sense that is one. The contours of those rights, those are difficult issues. Lets remember it is not an amendment, but it was in the structure of the constitution, the most basic right is the right of the majority to decide how to live. We the people get to make the rules. Not a king, not a priest, not a religious figure but we the people get to decide the rules by which our society is run. In many ways the most fundamental right. But the bill of rights tells us there are limits to the majority to set the rules. And that is where the debate is. But i welcome that debate. These are tough questions. I think the big picture is that we understand that there are fundamental rights and the framers saw those rights as inherent and thought these were godgiven rights. You do not need to be atheist you do not need to be a theist to believe that. These are things that exist. Our quest as it a people is to find out the limits of majority rule and the extent and liberty under the constitution. I think it is a healthy debate that is going on. I think madison won. Nowhere and because intrusion or other amendments will you find the phrase resumption of innocence. That that is an absolute and bedrock of our criminal Justice System and has been since the beginning so part of what the bill of rights did was frame the discussion to lay a foundation for and it is the constitutional democracy and we know that the text will not provide answers to all of the questions. And so i celebrate those disagreements and that ongoing dialogue that i alluded to before because i think we make a more Perfect Union every time there is a disagreement tickets worked out in a civil and respectable way by the courts. I would just add that before i came on the bench as a practicing lawyer and took cases of the Supreme Court, remember having one once and for reasons i cannot explain there was an article someone sent me where it was covered in a british newspaper. And looking at it through that lens, i am paraphrasing, it said something about eight uniquely american infatuation with the concept of my rights. That is one thing the bill of rights does. If we dont agree with the exact contours, part of who we are as a people is to recognize every individual has rights and those are rights that a majority cannot step on. It may overestimate what they are but the sense of part of being an american is to have individual rights and it is something that is very different in other countries. Other countries are looking in going, huh. That is the fragile balance between when does the majority win, when does the individual win. That is absolutely critical, the competition is what allows our constitution to survive for longer than others have historically. You know, when a pitchperfect and from all three of you as we come to the conclusion. We did not get through barely half of the 10 amendments and that is including the third which has not been in jeopardy of late one would hope. [laughter] i think beyond any particular question, one question visitors to washington on the d c circuit, part from any individual issue that might be had, at least they tell me they come away so impressed by the quality of thinking and the sincerity and effort that the judges and the lawyers put into these questions and i hope it involves seeing the sophistication and the sensitivity and the really respectful approach that all three judges here have shown to the cspan audience. You cannot watch them judging but you can watch this discussion. I am grateful to the judges for coming out tonight and talking us about how they approach the bill of rights and want some of the questions we might ponder in the years ahead are. So please join me in giving them a round of applause. Thank you. [applause] i want to thank all three of our distinguished judges for coming here. No doubt that the video from tonights program will be used in classrooms around the country. I will make sure that it is distributed. A great discussion and to a great way to celebrate the 225th anniversary of the ratification of the bill of rights. Be warned on your way out, it is a very frigid washington night. Thank you. [applause] [indiscernible discussion] announcer on newsmakers announcer new years eve on q a it was part of the image making where harrison was the poor man for the poor people in here was his rich man in washington sneering at the poor people. Harrison had thousands of acres and in the state so he was actually very wealthy but he was portrayed as the champion of the tour. Women came waving handkerchiefs, some gave speeches, some waved pamphlets. It was shocking. They were criticized by the democrats who said, these women should be at home making pudding. Announcer author of the Carnival Campaign how the president ial campaign changed campaigning forever. The election of the House Speaker. We recently met up with new members to discuss their background a end expectations ahead of being sworn in. Representativeelect brian mast, representing the 18th district. What were you doing before you when this house seat . Rep. Elect. Mast counterterrorism and a political check out our cspan classroom website at cspan. Org classroom. It is full of free teaching resources. I forteachers easy access important resources in washington dc. Constitutional clips that put the constitution to life. Social studies lessons. Cspanrch function allow Classroom Teachers to filter by date, keyword and grade level. Our video clips are teacher favorites read these night the federal government more accessible to your students. I like the bell ringers. I will not use them all the time. I will use them in conjunction with an activity we are doing as a warmup. I think it is fabulous, my students use it regularly. My students are working on videos and making questions that they can design enter into their own assignments. Favorite aspect is the deliberation phase. I just a variety of topics that are current and relevant today. If you are a middle school or high school teacher, join your fellow teachers as a member of cspan classroom. It is free and easy to register at cspan. Org classroom. If you register now you can request our free classroom size timeline. Residents with biographies of all 45 president s. Find out more about it at cspan. Org question. Interviews susan several members of the library of congress. This is just under an hour. Carla i wanted to open this wonderful Treasure Chest to as many people as possible. The room we are in now has 6 stradivarius violins and original scores from beethoven, hayden, no relation