And we have a freedom assumption on people and a prohibition assumption on government. So prior to the bill of rights the structure of the constitution was saying that we dont need to enumerate rights because the assumption is you have a right unless a prohibition has been created. That is a fair way to think about it . How would you expand upon it more eloquently since you teach this stuff . You are far more eloquent than i, senator sasse. No, i think that is an accurate description of the assumptions underlying our constitution, that the assumption was that if congress had limited power, it wouldnt have the ability to infringe rights in the first place. Of course at the time the constitution was ratified, the states were thought to have because the people are closer to their state governments, states well, thats the point of federalism, right, that citizens can have different policies in states and more influence over their state governments and state legislatures than the federal government. What role does the declaration of independence play in interpreting the constitution . Or whats the relationship between the two documents . Well, the declaration of independence is an expression of our ideals, expression of our desire to be free of england. Its not law, however. The constitution is law. So the constitution is our foundational law and governing document. You know, while the declaration of independence tells us a lot about history and about the roots of our republic, it isnt binding law. What are the five freedoms of the First Amendment . Speech, religion, press, assembly speech, press, religion, assembly. What am i missing . Redress or protest. Okay. Why is there one amendment that has these five freedoms clustered . Why do they hang together . I dont know what youre getting at on that one. You mean what is the common denominator . Yeah, why im getting back to the same idea that the bill of rights was sort of an attempt to do public catekesis. We already believe in limited governor, we the government, but the 1787, 1788 conversation was to say we believe in limited government because we believe in the limitless rights of people and so they didnt have a bill of rights. Later, when they started spelling it out, its sort of like they got jazzed up trying to work this out for the American People. This is amazing stuff. And so im just wanting to hear you reflect a little bit on the glories of the First Amendment, even though it wasnt needed as a part of the structure at the beginning. Once they added it, why five of them in the same amendment . I dont know why actually as a historical matter those were grouped. Im sure theres a story that i dont know there about why those appeared in the First Amendment altogether rather than being split up in different amendments. I mean assembly and protest and speech bear more relation to one another than necessarily free exercise, say. But i think, you know, they are in the First Amendment and i think that that reflects that those were core values that reflects that the states that ratified the constitution, the original constitution on the understanding that a bill of rights would be added wanted protections like that to be included because they were really core to what the new americans thought was going to be america. Thank you. I agree with you and i think that some of why its so useful to think about the five together in my mind is because you dont really have freedom of religion if you dont also have freedom of assembly. If you cant gather with your corelationist c coreligionists. You dont have freedom of speech if you cant gather. You can you cant seek redress of grievances if the government oversteps and tries to curtail some of those freedoms. I think some of the important questions about judicial modesty in some of the last hearings are very relevant and prudent to have had but i also think there are times when theres been questioning that youve been put through that has implied that because you have Free Assembly rights as an individual, when you were a faculty member or as a wife and mom and neighbor in south bend, when you sign something walking out of church, thats sort of implied that there was something inappropriate when the default assumption in our system is that we all have these freedoms because the Civil Society associations that we have are where we actually find happiness, meaning, joy and love. One of the things that not just judges wearing robes need to have to demonstrate humility but all of us in our day callings as Public Servants for a time but who are eventually going to go back home to the language of George Washingtons farewell address to go back and sit under the tree at mt. Vernon is that this is not the center of the world. This is not the institutions of power is not where meaning is found. The institutions of power are about serving the people so that the places where the 330 million americans actually live can be the center of life and meaning and association and religion and speech and press. That the heart of our system is actually volunteerism, entrepreneurship, community, neighborliness and love and power is just in service of that. Washington and later lincolns expansion upon it was the idea of the silver frame butt golden apple. The silver frame that is the constitutional structure is just to maintain the structure of ordered liberty so people can pursue the good, the true and the beautiful. The happy and the neighborly in the center of the picture because thats where love and community is found. Id like to pivot from constitutional structure to baseball for a minute if youll bear with me. Any of your kids play baseball or softball . Two of our boys had a very brief career in baseball. Gotcha. Well, its obviously not as great a sport as football but we can still call it the american pastime. Id like to talk about the Houston Astros who are ms. Risee cheaters. Sorry, cornyn and cruz. Both of the texas senators sit on this committee. But i think all baseball fans know that the Houston Astros cheat. They steal signs, they bang on cans, they have done a whole bunch of miserable things historically and deserve to be punished probably more than they have been. Thank goodness the First Amendment protects that right for him to express that erroneous opinion. If you want to defend cheating, that is the prerogative of the senior senator and the junior senator rushes in to do some homerism. It was going so well. I notice that ted is wearing a Lone Star State flag but not an astros mask. Tonight is game four in the American League championship series, and if houston loses to tampa, they will be done. That leads people to feel kind of desperate at times, right . There are times when you have a game thats your elimination game. You can imagine people wanting to sort of reconsider anything they can reconsider. The ends might justify the means. And you can imagine that the Houston Astros who have cheated in lots of ways in the past with sign stealing might try to go to the umpire and try to persuade somebody to expand the strike zone just for houston in the game tonight. That would obviously be inappropriate, right . Right. We cant have two sets of rules. Well, i think that an umpire is obviously supposed to apply rules fairly to both teams. I think we can all agree on that, as rules of fair play. And i think some of what we have seen in the questions over the last three days are trying to get an umpire to commit to a different set of rules for different teams. And so for what its worth just to reiterate, what i think so many of us have been trying to argue for in these hearings is the alleged equivalency between republican and democratic questioning here implies that republicans have been trying to get you to precommit to certain policy outcomes and i just dont think that thats actually whats been happening in this hearing. I think that the originalism that youve defended and that a lot of us have been advocating for in advance of and during this hearing is not a request for republican policy positions to be advocated through the courts. It is rather a plea not just to you and to future nominees but to our democratic colleagues as well to embrace a system where we begin distinguish for the American People between the two political branches and the apolitical branch. The fact that you are before us to be confirmed to a lifetime appointment where you will put on a black robe is a liturgical act where youre cloaking your preferences in humility. It is obvious that we are all shaped by life experiences. It is obviously the case that people have lived in communities in the past and most people who end up as extraordinary jurists have been connected to or around the political process at different points in their career. But that is not to undermine the ideals we have in the american system that judges should not see themselves as super legislators, they should not see themselves as policy advocates, and they do have to take up this new oath to a greater humility. And it means that you lay down certain freedoms that are inalienably and innately yours prior to becoming a judge so you dont have the appearance of bias and impropriety in the future. I want to reassert the idea that we should be trying to excise from our language this idea of conservative and liberal blocs on the court, republican and democrat justices. What we want, and i want this to not just be a republican aspiration but i want it to be a democratic aspiration as well again. What we want are people on the court who understand that with humility and modesty the judicial role, because it is a limited role. It is not a role to right all wrongs in society. It is not a role to be a policy advocate. I think youve come ported yourself straextraordinarily wes youve been repeatedly asked to be an umpire that judges certain cases and its not your job to do that until youre an active member on the court so thank you for the civics lesson youve offered americans over the last three days. Thank you, mr. Chairman. Yes, here we go. Mr. Chairman, i was tempted to make a parliamentary inquiry of the unjustified broadside of the senator for nebraska violates rule 19 of this body, but i decided not to when i came to the realization that nebraska lacks a professional Baseball Team and at times doesnt always have a winning Football Team either. And so i view it more as a plea for help than a substantive point. And i will say remainder of the senator from nebraskas questions and exchange with judge barrett i thought was excellent and a wonderful civic lesson fors american. The scurrilous things about the astros should be stricken from the record. I ask to submit some Historical Information about the Houston Astros but well wait for now. Will you include a photograph of the world series trophy . I think theres an asterisk hanging over the trophy. Number one, i want to thank judge barrett for not interrupting us during your hearing. Senator coons. Thank you, mr. Chairman. Thank you, judge. Good to be talking with you again. These questions of fairness and who follows the rules and who are the umpires and do we win at all costs or do we respect the traditions of the game are essentially whats before us. So lets get to it with the 20 minutes we have, and thank you, again, to your family and everyone whos traveled with you today. Judge barrett, in accepting president trumps nomination to the Supreme Court, you stated you share the judicial philosophy of Justice Scalia, your mentor, the justice for whom you clerked. His philosophy is, of course, originalism. Essentially the idea that the authoritative meaning of the constitution is what it meant when ratified. Whether that was 150 years ago, 240 years ago, but meant when ratified. And i think the American People need to better understand what that originalist philosophy could really mean for their everyday lives, because i think it means our entire modern understanding of certain constitutional commitments around liberty, privacy and equality under the law could in fact be rolled back to 19th or even 18th century understandings in a way unrecognizable to most americans. Many of these modern notions are rooted in a landmark case decided in 1965, griswold versus connecticut, where the Supreme Court held married couples have the right to use contraceptives in the privacy of their own home n an interview in 2012 on fox news, Justice Scalia said this decision was wrong. Because under his originalist philosophy, theres no such thing as a general right to privacy in the constitution. This is a question most currently serving justices have answered. When we spoke on the phone last week, you said you couldnt think of any specific issue of law where you disagreed with Justice Scalia. Do you agree with him that griswold was wrongly decided and, thus, states should be able to make it illegal to use contraceptives if they so chose . Well, senator, as ive said a number of times, i cant express a view yes or no, a plus or f. In my other capacity i get to grade, but not in this particular capacity with respect to precedent. I think that griswold is very, very, very, very, very, very unlikely to go anywhere. In order for you or griswold to be overruled, you or some state legislature would have to pass a law prohibiting Birth Control and a lower court would have to buck Supreme Court precedent and say were not following griswold, again seems very unlikely. So i think that its an academic question that wouldnt arise. But its something that i cant opine on, particularly because it does lie at the base of substantive due process doctrine which is something that continues to be litigated in courts today. For the benefit of watching judge barrett, your predecessors talked about griswold in detail. Justice roberts said he agreed with the conclusion. He shared your view that hes comfortable commenting because it doesnt appear to be an area that would ever come before the court. Justice alito and kavanaugh agreed. Justice kagan who you have been citing on the no grading said i do, that shes willing to speak to it, and as every nominee has, i do support the results in griswold. I understand that youre saying to us youre going to be your own justice and that youre very hesitant to talk about this case because it is an anchor to substantive due process. But let me just one more time say are you unwilling to say as so many currently serving justices have that at least griswold is not wrong . I think griswold isnt going anywhere unless you plan to pass a law prohibiting couples or all people from using Birth Control. And i think the question because its entirely academic, because it seems unthinkable that any legislature would pass such a law, i think the only reason that its even worth asking that question is to lay a predicate for whether roe is rightly decided because griswold does lie at the foundation of that line of precedent. So because griswold involves substantive due process, an area that remains subject to litigation all over the country, i dont think its an issue, a case that i can opine on. Nor do i think griswold is in danger of going anywhere. And to be clear about what it underlies, its not just that griswold was a landmark case, as you well know. It anchors a lot of modern liberty interests and personal and family autonomy. It was extended to unmarried couples. It was extended to the right for women to control the reproductive cases in roe and in casey, but it was also extended to support samesex couple intimacy in lawrence v. Texas and ultimately that samesex couples have an equal right to marry. The reason im taking a few minutes with this is that Justice Scalia publicly disagreed with or dissented in each and every one of these cases. He wrote in one of these decisions that it reflected the court adopting the socalled homosexual agenda and just last week justices thomas and alito issued an opinion stating the Supreme Court needs to fix problems from its holding in obergefeld. So i understand youll be your own justice and Justice Alitos philosophy is significant, but i think youve also made it clear that its largely your philosophy. Im trying to help viewers understand what it means to replace a Justice Ginsburg with someone who may more closely follow Justice Scalias approach. If Justice Scalia had had his way, wed be in a very different country in regards to gender discrimination. In one of Justice Ginsburgs most celebrated decisions in 1996 in the case involving Virginia Military institute, she struck down their maleonly admissions policy. Decades later, they honored Justice Ginsburg because of the contributions their females have made. Justice scalia dissented. Im just getting at how closely you would ally yourself with Justice Scalias jurisprudence. Would you agree that Justice Ginsburgs decision in vmi was wrong . Well, senator coons, to be clear, as i said i think in response to this question yesterday, i do share Justice Scalias approach to text, originalism and textualism. But in the litany of cases that youve just identified, the particular votes that he cast are a different question of whether i would agree with the way that he applied those principles in particular cases. And ive already said, and i hope that you arent suggesting that i dont have my own mind or that i couldnt think independently or that i would just decide, let me see what Justice Scalia<