list versus fec, you wrote the requirements trigger rights that receive, quote, less first amendment protection, close quote. other types of speech prohibitions. and i think that followed from supreme court law and is consistent, i believe, with subsequent supreme court law. of course, the subsequent supreme court law controls. do you have a favorite among the federalist papers? i m not asking you to choose here between eliza and yeah, no, that s right. i like a lot of federalist papers. federalist 78, of course, the independent judiciary, the role of the judiciary. federali
inconsistent with the constitution, the supreme law controls, namely, the constitution controls over a contrary statute. that s of course discussed in federalist 78 as well of what is the supreme law of the land and the constitution is the supreme law. again precedent, historical practice subsequent to the passing of the text. we see that for example on establishment clause cases. the court will often look at the text. what is the historical practice. and precedent, which is rooted in article 3, those things go in it. the words, the original public meaning are an important part of constitutional interpretation and has been, i think, throughout. let s suppose congress in its infinite wisdom with it s approval rating that ranges between 9% and 11%, making us slightly less popular than raul castro in america and slightly
fill out the meaning of the constitution over time with practices, those can be relevant in how the court subsequently interprets certain proevisions. we talk also about the national and federal government, so the combination in 39, the combination that we have, this odd that s the genius rights of having a national government plus state governments and within the national government, the house is proportional representation, the senate is state representation. that interesting compromise, which madison, boy the way, was opposed to, but compromise at the convention. federalist 47, when senator klobuchar mentioned yesterday, the cumulation of all power in one body is the very definition of tyranny. i start my separation of powers class every year with that exact quote that you read yesterday, senator klobuchar, because that s very important.
federali federalist 69, which says the presidency is not a monarchy is very important when hamilton explains all the ways that the presidency is not a monarchy in our constitutional system. i think that s very important. federalist 10, which talks about factions in america and explains that having the separation of powers and the federalism system dividing power in so many different ways would help prevent a faction from gaining control of the entire all the power for the people of the united states, and that makes it frustrating at times because it s hard to pass new legislation, but that also, that division of power helps protect individual liberty. i think that comes a bit from federalist 10. federalist 37 and 39 talk about on the one hand how we are just talking laws that are the constitution over time can be the term liquidated by historical practice. what does that mean? that means that as the branches
constitutionaltecticonstitution- constitutionists, i think those are referring to the same things, the words the constitution matter. as i have said repeatedly, you look at historical the history. you look at the tradition. federalist 39 37 tells us to look at the liquidation of the meaning by historical practice easter time and then you look at precedent, which is woven into article 3, as i said, in federalist 78. but, you know, start with the words as justice kagan said. we are all originalists now in that respect of paying at least some attention to or more than some, paying attention to the words of the constitution. if we stipulate for our purposes today as we re having this conversation that originalism refers to basically textualism applied in the constitutional sphere with an eye towards identifying the original public meaning of the constitutional text at issue, you re an originalist? that s correct. and justice kagan as justice