David Strauss, “Does the Constitution Always Mean What It Says?”
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David Strauss, “Does the Constitution Always Mean What It Says?”

September 12, 2019


PROFESSOR: Well, hi everybody. Welcome to this talk. Thank you for coming. Boy, I’m sure you guys have
better things to do, but OK. OK. So this is my subject, Does the
Constitution Mean What It Says? And, I mean, obviously, in
some level, the answer is yes. We have a Senate with two
senators from every state. It’s hard to explain
why we have that were it not for the Constitution. The Constitution
tells us the president has to be 35 years old. It tells us when the
president’s term ends. Pretty important
thing to be told. And all those ways we
treat the Constitution as meaning exactly what it says. The idea for this talk
was prompted, actually, by an exchange in an argument
before the Supreme Court recently, in the last few weeks. The argument was, in this case,
about the president’s power to make so-called
recess appointments. Recess appointments
are appointments the president can make without
confirmation by the Senate. And he can make them–
roughly speaking, the idea is when the
Senate is not in session he can make a recess appointment. The issue is about exactly what
does it mean for the Senate not to be in session? The issue is a little more
complicated than that, but basically the way the
litigation worked out, the case came to the Supreme
Court in a posture in which the lower court– the United
States Court of Appeals for District of
Columbia Circuit– had said that something that,
basically, everybody had– or most people had assumed was
within the president’s power wasn’t. Because, if you look at the
words of the Constitution, they say the president
can’t make appointments in certain circumstances. It had been assumed– in
one case for 100 years, another case for almost 200
years– assumed by most people the president could
make appointments in those circumstances. But if you read the words of
the Constitution just naturally, probably, they are inconsistent
with this very well established practice. And in the course of the oral
argument, one of the justices asked the Solicitor General, who
was defending the president’s appointments, said to the
Solicitor General, well, look. If the words of the
Constitution say one thing, but we have
established practices that are inconsistent
with that, what governs? And the question was really
asked as a rhetorical question. The question was
asked to say look, the words of the
Constitution govern, right? I mean, it’s the Constitution. The Solicitor General
at first hedged. He eventually came back
and gave an answer, but his first response
was to say, well, things aren’t that clear. The words aren’t that
clear, because he didn’t want to be in
the position of saying no, sometimes the words
don’t mean what they say. So that’s what got me started
to be thinking about instances in which the words
of the Constitution seem not to mean what they say. And, more generally,
to talk about ways in which we have moved away
from the clear, natural, obvious meaning of the Constitution. You might think, well, that’s
a bad thing if we’ve done that. I mean, we shouldn’t move
away from the obvious meaning of the Constitution. The Constitution says something,
we should comply with it. But at least some of the
examples I’ll show you, I think, reveal– in
many of these cases it would actually
be unthinkable to go with what the Constitution
seems plainly to say. Not only have we
drifted away from it, but it would be really
unacceptable to follow what the words, interpreted
most naturally, seem to say. That’s what I’m going
to try to show you. Now, let me qualify
in a couple of ways. I don’t mean to suggest
that the people who wrote the Constitution
were being foolish, or just made dumb mistakes. I don’t mean to
suggest that at all. On the contrary, in a
lot of these instances you can understand
pretty clearly what the logic was behind the
words as they were written. They were not written
inadvertently or carelessly. They were written with
a certain view in mind. And, also, the point of this
isn’t that there are slip ups. That there are careless
phrasings, or careless things in the Constitution. And, you know, gee
whiz, look at that. If you really took
that literally, it would mean the giraffes could
vote, or something like that. It’s not like that. Now there are things like
that in the Constitution. I’ll actually give you an
example of one of them. Which is this– this is
a– the clause in Article II of the Constitution that
established the qualifications to be president. You have to be a natural born
citizen, which that could mean lots of different things. It could mean that Julius
Caesar and Macduff would both be disqualified from
being president because they were untimely
ripped from their mothers’ wombs, in Macduff’s words. Or c-sections. If you’re born by c-section
you couldn’t be president, but no one thinks it means that. Everyone thinks natural
born citizen means that you are a citizen
by virtue of birth. That you were a
citizen at birth, as opposed to being naturalized. Now that, itself, is
probably indefensible. There’s no real reason
today to disqualify people who are naturalized
citizens, but there it is in the Constitution. We do follow that. That’s not really what I want
to draw your attention to. What I want to draw
your attention to is that comma between the
Constitution and shall. OK. Now you see what
they’re getting at. They want to say either you have
to be a natural born citizen, or you have to be a citizen–
actually I got the wrong comma. It’s that comma,
between states and at. Or you have to be a citizen
of the United States at the time of the adoption
of the Constitution. OK. You either have to
be natural born, or, for this current
generation, you have to have been a citizen
of the United States when the Constitution
was adopted, because a lot of those
guys were born in England. Or some of them were
born in England. Or elsewhere not in the United
States, which didn’t exist. But the problem is they
put in that comma, too. So what that comma seems to do
with this phrasing is something like this. You have to be a natural
born citizen, or a citizen of the United States, at
the time of the adoption of this Constitution. That means, unless you
were either a natural born citizen at the time the
adoption of the Constitution, or a citizen of
the United States at the time of the adoption
of the Constitution, you can’t be president, right? Am I right, or am I right? That’s what it says, right? No person except a
natural born citizen. Now you’ve got two
commas around there. Two commas, we all know,
that makes something a parenthetical phrase, right? Either a citizen of the United
States– either a natural born citizen, or a citizen
of the United States, at the time of the adoption
of the Constitution. So, unless you were a citizen
when the Constitution was adopted you can’t be president,
and that means forget it everybody post Zachary Taylor. Because he was the last
president who was born– who was a citizen at the time of the
adoption of the Constitution. OK, so there’s actually a law
review article about this. This isn’t my idea. I would love to take
credit for it, but I can’t. An article in 1995 by Jack
Balkan, Sandy Levinson, and Jordan Steiker
that made this point, and actually went into the
history of the use of commas in the founding period to
prove that they were right. But it’s obviously–
that’s not what I’m doing. OK, I couldn’t resist. So let’s not do that. What I really do is
something more interesting. As I said, I think, in a
lot of these instances, there was a real logic, a real
kind of intellectual coherence, to these provisions
of the Constitution. And what the unacceptability
today of following them tells us is just how different
a world it was when these provisions were written. And that’s the
interesting thing– that it reveals to us that
the world today doesn’t look like the world of the
18th and 19th centuries, which was when most of
the important provisions of our constitution
were adopted. And the difference
in the world is what shows up in these
parts of the Constitution that we wouldn’t think
of following today. Now, one more qualification. A lot of what I’m going to
say, I think, will seem, and in some sense will be,
one sided and polemical. And people who approach these
issues in a different way might say, well,
you’ve kind of left out a whole half of the story. There are ways of interpreting
the Constitution that don’t produce the anomalous
and unacceptable results that you’ve identified,
they would say to me. And they’re right. There are ways of
interpreting the Constitution. In every one of
these instances there are ways of interpreting
the Constitution that get around the problems that
I’m going to try to show you. You can find ways of making the
text consistent with principles that we accept today,
but that’s the thing. You’re finding a way. You’re getting around it. You’re finding an
interpretation that will satisfy us today, that
we will find acceptable today. And the question really
is, why are we doing that? Why are we stretching,
and pushing, and interpreting in order to
reach a certain result when the words as naturally read
lead to a different result? We do it, and we should
do it, but you have to get at why we’re doing it. And when you figure
out why we’re doing it you realize that
is what the process of constitutional law and
constitutional interpretation consists of. Not reading the
words of the text, but whatever it is that causes
us to take certain words and say, oh, yeah, you
can’t take that literally. But if you look at it
this way, and look at it next to this provision, you’ll
see that it all makes sense. But why are we doing that? Something else is going on here. Something else is going on here
besides just treating the words as if they mean what they say. And it’s that
something else that is key to American
constitutionalism. But I think the
something else is a combination of following
precedent and tradition, and just making judgments
about what’s right. That’s a whole different
story, but the point I really want to make
is something else is going on beyond simply
following the words. And to say, but you
don’t have to interpret the words that
way, that is right, but the question
is why don’t we? And we need an answer
to that question. So, as I say, this is
going to seem one-sided and not fully
acknowledging the way in which these words can
be reconciled with things we think are acceptable. I think that is
right, but why do you have to reconcile
them in order to get to the bottom of that question? Why are we not just following,
taking the words at face value in order to understand
how the Constitution works in American life? So, OK. So let’s do that, and let’s
skip over the Zachary Taylor et cetera problem. So here you go. The First Amendment–
great guarantee of freedom of speech in the
United States, right? What’s the first word? First word is Congress. Congress shall make
no law abridging the freedom of speech. president? Not there. The federal courts? Not there. Does that mean that the
president can say, well, I’m going to use the
discretion I have in enforcing the criminal
laws to enforce them against my opponents? Does that mean
the president, who is commander in chief
of the armed forces, can say, you know, if there’s
some mission that presents a great risk of life to the
people who are carrying it out, I want that mission to be
carried out by Republicans. Right? The president say that? Of course the president
can’t say that, but why not? It’s Congress. Oh, when they said
Congress they must have meant the federal government. Really? They did just draft
the Constitution, and they did just talk
about Congress in Article I, the president Article II, and
the courts in Article III. You would think, if they wanted
to say something different from Congress, they
would have been able to say something
different from Congress, right? Right. They would have been
able to say, for example, people have a right
to free speech. The way they said in the
Fourth Amendment– people have a right to be secure in
their persons, houses, papers, and effects. They might have
said no person shall have his free speech
taken away from him, or no person shall be subject to
a violation of his free speech rights. Or no person shall
be compelled to speak in a way he doesn’t want to
speak, or to refuse to speak in a way he wants to speak. Or no person shall be deprived
of the freedom of speech. They say all those things in
the Fifth Amendment, where they said people shall enjoy
the right to freedom of speech. Or they should have said
violations of freedom of speech shall not be required. They could have said
all those things. They say them in the next
amendments, all of which are phrased in a way that would
have avoided this problem. None of those amendments
says Congress may not. They all give rights
to the people. So why didn’t they
give rights to people in the First Amendment? They just said Congress. Take it for all it’s
worth, the president can violate people’s
free speech rights. Now, their answers
to this– I mean, it’s not like no one has
ever noticed this before. It does get universally ignored. Well, not quite
universally, because there are people who
have noticed this, and the basic thing
people will say– well, they’ll say one of
a couple things. They’ll say, well, look–
yeah, the president can’t do things Congress
doesn’t authorize him to do. The president can
only act pursuant to congressional authorization. Now, there’s a
problem with that, which is there are some
things the president can do without congressional
authorization– like being commander in chief
of the armed forces, which is a power the Constitution
gives the president himself. So that’s one problem. The other problem is if Congress
authorizes the president, as it routinely does, to enforce
the criminal laws exercising his discretion about which
laws he’s going to enforce, which is a common
understanding– universal understanding
of criminal laws. The president doesn’t have
to enforce all criminal laws. He can exercise his discretion. The president is not going
outside the authority granted him by Congress if he
exercises that discretion, and nothing in the
First Amendment prevents him from exercising
it on the basis of people’s speech. Or, I should say, since the
rest of the First Amendment talks about religion, on the
basis of people’s religion either. So there is a problem. Now, we sort of
interpret our way around it in the
way I just said. Well, it has to be action
pursuant to congressional authorization, or we just sort
of ignore it and treat Congress as if they meant the
federal government. But, you know, if you’re
just reading the text straightforwardly it’s hard to
make the case that the First Amendment– the word Congress
in the First Amendment means the federal government
when they carefully distinguish between the branches of
federal government in the body of the Constitution itself. And it’s hard to say that the
text just means to say people shall have a right to free
speech when so many other amendments do talk in those
terms, but this one doesn’t. So there’s a problem. Does it mean that
seriously, the president could do these things, or
the courts could hold you in contempt of court for
engaging in political speech? No, it doesn’t mean that. But why doesn’t it mean that? Well, it doesn’t mean
that because that’s not the way our system has evolved,
and that’s not a good system. But those are the reasons, not
because we’re taking our orders from the Constitution. OK, the establishment cause. Notice that the establishment
clause is the clause that is cited to forbid literally
religious establishments, official government
sponsored churches supported by tax revenues of the kind
they have in other countries, including the United Kingdom. And, more generally, to
forbid forms of government aid to religion in the
question about what kinds of aid or religion– or
what kinds of aid to religion are OK, and what kinds
are not is much litigated. A very hard question
to get a handle on, but it is interpreted to
mean the government may not establish religions. May not give a certain
kind of aid to religion. It doesn’t say that. It doesn’t say
Congress shall make no law establishing a religion. Now, I did the stuff
in the first line, because we all know that
Congress doesn’t mean Congress, it means the first the federal
government because– because, because, because. But, OK, I grant you that. It means the federal government. Now look at it. The federal government
shall make no law respecting an establishment of religion. Why phrased that way? Well, it’s pretty clear why
it was phrased that way. It was phrased that way because
the time the First Amendment was adopted, there were states
that had established religions. That had official state
religions, in the state. Congregationalism was
established in Massachusetts as a state religion
supported by tax revenues. And what the First
Amendment was designed to do was to prevent the federal
government, Congress, from disestablishing
those churches. Congress shall make no law
respecting an establishment, meaning Congress cannot
establish a federal church, and Congress cannot
disestablish state churches. Very clear that’s
what they are up to, and that’s why the clause
is phrased the way it is. Congress is not to interfere
with state’s decisions about establishment,
one way or the other. Now, if you take Congress to
mean the federal government, that should mean the federal
government cannot interfere with state’s decisions
about establishing churches. And that means if a
state wants to establish a church of state– the state
of Illinois wants to say such and such a religion
is the official state religion of Illinois. The governor of Illinois is the
head of the Church in Illinois, boy imagine that. And your tax revenues are going
to go to support that church. The federal government is barred
from doing anything about that. Why upside down? Because it’s been interpreted
in exactly the opposite way. That if Illinois tried to do
that the Supreme Court would strike it down in a second. The Supreme Court’s
not Congress, but we passed that already. We’re talking about
the federal government and the Establishment Clause has
essentially been interpreted. In this respect, the
Establishment Clause that was designed to keep
the federal government out of state decisions
about establishment, has over time come to mean,
in this respect, the opposite. The federal government
can tell states no, you may not aid
religion in that way. A complicated process,
the steps to the evolution can be quite nicely traced out. That establishments died
out in about the 1820s. After about that point states
didn’t have anymore established churches. By the time the
14th Amendment was adopted after the Civil
War, established churches were history. The 14th Amendment is taken
to have applied this provision to the states, because
we’ve gotten back to the point we don’t have
established churches anymore. The Establishment
Clause has been reinterpreted to
forbid establishments, but that’s the process. Not just the words,
not just the words. You can’t get there
from the words. You’ve got to look
at more than that. OK. What about this? I really want to focus not
on commas, but on things that are absolutely
central to the Constitution as we understand it in
the United States today. So let’s take maybe the
single most central thing of the last century, which
is the unconstitutionality of racial segregation of
the kind that was practiced in certain parts
of the country up until the middle of
the 20th century. The big case, of course, Brown
against Board of Education that held that segregated
schooling was unconstitutional. The basis of that holding was
the equal protection clause of the 14th Amendment. There is, no state
shall deny to any person within its jurisdiction the
equal protection of the laws. Equal protection of the laws. The odd thing is
a lot of people, when they talk
about this clause, they talk about the
constitutional guarantee of equality. It doesn’t say that. It doesn’t say every state
shall treat people equally. It doesn’t say that. Look at it. Look at it. Do I have to get out
my laser pointer? Do I have to do that? Equal protection. It talks about equal protection. Where do you get equality
in education from that? Is education a
form of protection? And even if you wanted
to say, well, yeah, I can kind of get there. I mean, you get a good
education it protects you from a lot of the bad things
that can happen in life. I can get there,
and maybe you can. OK. I see that. But think about
the other aspects of Jim Crow’s
segregation of the south the Supreme Court also
said were unconstitutional. You can’t segregate
public parks. You can’t segregate
public swimming pools. You can’t segregate
public buildings. You can’t segregate
public restrooms. For that matter, if you
had some purely ceremonial function– the
ceremonial town Marshal who leads the town parade
on April Fool’s Day. You couldn’t confine that. Obviously you couldn’t
confine that to white people. Obviously. Is that about protection? In what sense, exactly,
is that about protection? So what we’ve done is
kind of what I just said we did about education. Which is to say, well, equal
is really the word there, and we’ll just kind of
skim over protection. Or we’ll kind of say,
well, all these things sort of involve protection. I mean, they’re all
kind of protecting you against status as a
second class citizen, or something like that. You can do that,
and that’s fine. And it’s a great thing
that we did that, make no mistake about that. But I have a hard time
getting there from the words. Now, what was going
on with these words? Why is it phrased like that? Here is an account. I don’t know enough
about this for me to tell you this is right, and
there’s a dispute about it, in fact. But here’s one account
of what the people who drafted the 14th
Amendment were– that part of the 14th
Amendment were doing. Equal protection really
did mean protection. It meant equal protection of
the criminal and tort laws, and you could not
deny people that on the basis of their race. And that didn’t extend
to things like education, public transportation,
public facilities. The Equal Protection clause
did not apply to that. It really meant protection
of your person and property. But there was another provision,
the Privileges or Immunities clause, that was
intended to make sure everybody would have equal
privileges and immunities. And the question,
then, of course, is what counts as a
privilege or immunity? And there was a list. They had a list. It usually involved,
roughly speaking, things like the right
to enter into contracts, the right to give testimony
in court, the right to hold property,
things like that. There is no evidence
that– there’s very little evidence,
hardly any evidence, that anyone thought
it involved education. Certainly to say
that your right to go to a public park, or
a public golf course, or a public swimming
pool is a privilege or immunity of citizenship is
stretching things pretty far. It was not what was
originally understood, but that’s how they
thought about things. They thought that there was a–
the idea was that there would be equality in certain
areas– equality with respect to certain things. Certain privileges
or immunities that are so central to citizenship–
we want equality there, we want equality in protection
of criminal laws and tort laws. In other ways if
you want to treat people of certain racial groups
as inferior, you could do it. That was their vision. Equality in certain quarters,
but equality across the board? No, races aren’t equal. That was the vision. And, you know, they just
saw the world differently. It’s not that they were
slipping up, or incoherent, or being silly. They just had a different
view about the world, and things have
changed for the better, and that’s why the
language doesn’t line up with what we believe today. And, in fact, when people talk
about the equal protection clause they routinely
gloss right over that word. And you know what? That’s fine with me. But maybe it shouldn’t
be fine with people– I wouldn’t say shouldn’t be fine
with– people who emphasize, you have to follow the
words of the Constitution. Maybe they have, as they say,
a little explainin’ to do. OK What’s next? Yeah, the right to vote. Oh, no, no, no. Wait, I’ve skipped too far. There’s much more here. Much more here. This one. This is another old favorite. See that word? State. What about the
federal government? The federal government
is not a state. So does that mean the federal
government can discriminate on the basis of race? That’s the clause that
forbids racial discrimination. The federal government
can do that. There’s no equal
protection clause for the federal
government. [FRENCH] As it happens, a case involving
discrimination in the District of Columbia– forgive me, if
you’ve taken [? Common Law ?] [? 3 ?] and know all
of this stuff by now. District of
Columbia, the schools of which are run by
the federal government, came up at the
same time as Brown against Board of
Education, which involves state schools–
the schools run by states. And the Supreme
Court decided Brown against Board of
Education, and then, in the case involving
District of Columbia, it wrote a separate opinion–
the case is called Bolling v Sharpe– in which the
Supreme Court said, look– I’m paraphrasing,
but only a little. Look, we just said segregation
in public schools in the States is unconstitutional. It would be unthinkable
to allow segregation in the schools in
the nation’s capital. And they then went on
to say, segregation in the schools in
the nation’s capital violates the due process
clause of the Fifth Amendment of the Constitution. The Fifth Amendment of the
Constitution– first of all, it doesn’t say anything
about equality. It says due process of law. I got it back there someplace. Yeah, there it is. Where’s my– there it is. Nor be deprived of life,
liberty, or property without due process of law. They said, well, there’s a
guarantee of equality in there. Maybe. I don’t quite see it myself, but
I guess it’s got to be there. And, of course, the
people who wrote that clause– they
were really advocates of racial equality
since the clause is written in 1791 at a time
when half the country was slaveholding. But, look, it is unthinkable
to allow segregation in the schools in
the nation’s capital when you outlawed
it in the states, and we’re going to find
something in the Constitution that allows us to say that. Due process is a loose enough
notion so we can say it. That’s the way
these things work. OK, so that’s Bolling
against Sharpe, and the federal
government discriminating. Voting. It’s a little complicated,
but bear with me, because it’s a little
complicated– a little less dramatic, but actually kind of
a clear case of something that’s just been interpolated
into the Constitution. The Constitution,
itself, actually doesn’t give– it says very
little about the right to vote. And, by and large,
writes the vote came– in the
original Constitution it came from the states. Over time various
constitutional amendments were adopted to give different
groups the right to vote, including that one,
the 15th Amendment, which gave the right to vote. So the right to vote could not
be denied on the basis of race. The 19th Amendment said the
right to vote cannot be denied on the basis of sex. The right to vote was
subsequently extended, also, to 18-year-olds. But here is the thing–
it is actually very clear that the 14th Amendment, with
its equal protection clause, does not give people
a right to vote. Taken in its most
natural reading it does not give
people a right to vote. Here’s why I say that. The 14th Amendment adopted
after the Civil War clearly had something to do with
race discrimination. The main objective– no dispute
about this– whatever else it did, the main objective
was to get rid of race discrimination in certain ways. As I said, with respect to
privileges and immunities, and with respect to protection. Was it designed
to get rid of race discrimination with
respect to voting? No, it was not. How do we know that? We know that because of this. Because they had to amend
the Constitution again a few years later to get rid of
race discrimination in voting. They wouldn’t have had to do
that if the 14th Amendment already got rid of race
discrimination in voting. You want more evidence? Here is the deservedly
obscure– well, maybe not deservedly– parts of it
deservedly obscure section 2 of the 14th Amendment. And what it does is
to say, if states do deprive the people– some
people of the right to vote, which people would those be? We’ll those would
be men, because you couldn’t deprive women of the
right to vote, I mean, come on. If you deprive men
over the age of 21 who are citizens of the right
to vote, here’s what’s happened. Your representation
in Congress will be cut back proportionally. So what they’re saying is,
we’re not forbidding you from doing it, we’re just
saying if you do it– if you deprive
people of the right to vote– they’re speaking
about African-Americans here, effectively. If you deprive African-Americans
of the right to vote, we’re going to cut back your
representation in Congress. It’s never been enforced. And when the 15th
amendment came along, at least as far as
African-Americans were concerned,
this would no longer be applicable because
you couldn’t deprive them of the right to vote at all. Supposedly, they
were effectively deprived the right to
vote until– in many areas until well into
the 20th century, but that’s a different story. So you’ve got this amendment,
the 14th Amendment, that has its language
about equality, this language [INAUDIBLE]
privileges and immunities. If you read the text
it is really quite clear it does not say– it
does not limit a state’s power to deny people
the right to vote, because if it did we wouldn’t
need the 15th amendment. And if it didn’t
it wouldn’t say, here’s what happens
if you do deny it. It would have said
you can’t deny it, OK? So could a state, consistent
with the Constitution as it’s written, deny
gays the right to vote? Sure, there’s no
amendment that says you can’t discriminate
in voting on the basis of sexual orientation as
there is for race, sex and over the age of 18. If you’re just
reading the document, you say, well, let’s see. 14th Amendment doesn’t
say you can’t discriminate against people in voting. 15th Amendment
says, well, you can on the basis of race,
can on the basis of sex, can on the basis of being
under the age of 18, I guess the other
things are fair game. You’re an Italian American? I don’t think that’s race. You’re rich? That’s not race either. You’re not voting. You’re poor? You’re not voting. There were property
qualifications in voting at the time the
Constitution was drafted. Nothing in the
Constitution ever said you can’t limit the vote
to people with property. One person, one vote? Are you kidding me? Where does that come from? Where does that
come from exactly? If you read Supreme
Court opinions, they’ll say it comes from
the equal protection clause. But in fact, the– well, you
remember the equal protection clause. There it is. But in fact, that doesn’t have
anything to do with voting. And we know that because of the
other things I’ve mentioned. Now, the law has gone
way, way beyond this. And there are various ways
you can explain around it. There are other clauses
in the Constitution that you might use to invoke,
to say there’s a right to vote. But if you’re just reading
the document the way you read a legal document,
you have a problem explaining why massive
discrimination in voting is not acceptable. All right. You’ve had enough? You want some more? How about this one. There’s the Fourth Amendment. The right of the people to
be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures, shall
not be violated. OK. The NSA– suppose the NSA were
to listen to my cell phone conversations– which,
by the way, it doesn’t. But supposing it did. Let’s see, listening in my
cell phone conversation, is that a search or
seizure of my person? Well, my cell phone
is on my person, so I guess if they grab
my cell phone, yes. But if they’re just listening
to the electromagnetic transmissions in
the air, no, that’s not a seizure of my person. My house? No, that’s not my house. My papers? No, certainly not my papers. The whole thing, a phone
call, is exactly not a paper. My effects? My personal effects? My conversations don’t
include my effects. So where does my
right not to have the government listen
to my phone call, phone conversations, come from? There’s the relevant amendment. You find it in there anywhere? I can’t find it. I’m looking. I’m looking. I can’t find it. When this issue was
first litigated, it was litigated not about
cell phones but about– and again, if you’re
in criminal procedure, you know all about
this United States against cats– it was
litigated about landline phones and particularly a phone
booth, because that’s not in anyone’s house. And the dispute on the court
was an interesting dispute on the court, where
the majority said no, listening in to
someone’s phone calls is like searching their
houses or their effects or their papers. I mean, it’s not
literally their papers, but it’s like their papers. The dissent by Justice
Black said, no, it’s not. It’s like eavesdropping. You’re just listening
in to a conversation. And eavesdropping
was an accepted thing to do at the time of the
framing and is not ruled out by the Fourth Amendment. That whether you’re listening
in to someone’s sound waves or listening in to someone’s
electromagnetic waves, no difference. Now, we can argue about that. We can say, no, we rely on
electromagnetic communication of various kinds in ways that
we don’t rely on conversations. We expect them not
to be overheard. There’s an expectation that
if you talk on the phone, it’s private. If you’re talking
in public in a place where people can
hear you, it’s not. All of that is true and
it’s good the law developed this way. And as I said, it is
unthinkable that we would have no protection
for phone conversations. But, no. Persons, houses,
papers, and effects. You won’t find phone
conversations in there. OK, I’ll give you one more. Because I think maybe you
get the drift at this point. There you go. This isn’t quite locked down
in the way the others are but it’s so wild
that I can’t resist. There you go. There is the provision
of the Constitution that deals with Congress’s
power to create money. And what it says is it
may coin money, regulate the value thereof, and regulate
the value of foreign coin. And then in the next clause, it
mentions securities as well as coin. One way to read that– and in
a way, in fact, the Supreme Court did at one point
read it– is to say, Congress can’t
create paper money. Coin– what does
coin mean to you? Coin is coins. It’s metal. I don’t know why in that when
they decided this in 1868, they weren’t thinking in
bitcoin, but they weren’t. That oversight. And there’s a serious argument. And also, the reason why I think
this is a legitimate example, even though the text is not
100% clear that paper money is ruled out, it’s really not. It’s a reasonable
argument you could make on the basis of the text alone. There is lots of talk
in the framing debates about the evils of paper money. And a decent basis for saying,
no, no, they meant coin. That meant it had to be metal. They didn’t want Congress
creating paper money. It is a more complicated
story than just that. But there is at least,
on the basis of the text, the plausible argument
that paper money is unconstitutional. There are arguments to
the opposite effect. And as I said, this is a
little bit more tenuous than the other things
I’ve been saying. But there’s a problem
here, since the power is coining money. And the ordinary
reading of coin– if you just sort of drop into
the United States from planet whatever at this
point and you somehow acquired an intimate familiarity
with the English language and you read that– coining
money is not the same thing as creating paper money. And that is a sort of notorious,
actually, example of something that would lead to results
that would obviously– would play an unacceptable
plunge to the economy into chaos. I know some people are fans of
the gold standard, but come on. But on probably the
more plausible reading of the Constitution,
Congress has no business creating paper money. And as I said, this is a point
I want to make less emphatically than some of the
others about the text. OK, so what are we
to make of all this? Are we to think less
of the Constitution? No, absolutely not. It is an amazing achievement to
draft a document that has done as well as our
constitution has done. It is certainly
not done perfectly, there are examples I’ve
given you and some others and then there is the problem
of the Civil War, which is there’s no more catastrophic
way a constitution can fail than that. Having said that, there are lots
of things that have survived. And also, it took a
particular kind of genius to draft these things
in a way that allowed us to interpret our way out of it. I mean, had the 14th Amendment
not been phrased in the way I described, but had
it said something like what they probably thought,
which is notwithstanding anything we’ve just said,
racial segregation is OK. That’s probably
what they thought. Had they said that, we would
have a much tougher time getting to where we’ve gotten. And there are lots
of examples of that. Of things that they
probably believed, they didn’t write it down, they
left things a little vague, and as a result, we’ve been
able to work with the text and make progress. And in those respects,
the Constitution it is a remarkable document. It is really asking too
much– asking way too much– to think you could go
back to this essentially unamendable, nearly
unamendable, text drafted 150 or 220 years ago. Go back to it and find a
recipe for modern life. That is asking way too much. And if you’re pretending
you’re doing that, then you’re pretending. That’s not really
what you’re doing. You’re finding your answer
somewhere other than the text. And it does not dishonor
the text to do that. What it does– far from
dishonoring the text– I think, is to honor and
celebrate and also enjoin us to be properly
humble about the human capacity to make progress. So thanks. Questions? [APPLAUSE] Time for questions. Sir? STUDENT: Well thank you for this
fascinating and illuminating talk, Professor [INAUDIBLE]. This really shows both the
strength and the limitations of the Constitution
from the vantage point of the modern day. And I guess I was
wondering if you envision any further reasonable
reforms going forward that take us away from these
rigid constitutional formulas? Notably, many
commentators increasingly realize the un-workability
of the political order with the kind of mix
presidential-parliamentary system that exists. And there are any number
of ways one could go. But for instance, if
one wanted to reduce the power of the
Senate to something like the House of Lords
in the United Kingdom or were to take another
potential reform, outlaw the
gerrymandering that we see in districts in the
House of Representatives– do you think any reasonable
composition of the courts could produce those
results going forward? PROFESSOR: Well, let me
answer that in two ways. I do think we have– I think
these examples show that we have established
ways of changing the Constitution in order
to adapt it to problems that weren’t envisioned or to adapt
it to ways in which we think about the world differently. And we figured out how to do
that in a lot of instances, like the ones I’ve described. So that mechanism exists. And we call it constitutional
interpretation, but it’s more than just–
as I said– more than just looking at the
words of the text. Now as for these
sorts of things you mentioned– this is a
little bit off the track although it’s connected–
there is another thing that goes on in our system, which
is norms and rules of practice that grow up that they’re not
really something some would say is in the Constitution
even in the sense of it’s part of constitutional law,
they’re accepted practices. And one of the things you have
to have– maybe in any system and certainly in
a system like ours with these potential rigidities
resulting from a written constitution– you have
to have understandings about the way things
are going to work. Here’s an analogy. In labor relations,
for employees to say, we are going to
work to rule, that is an aggressive
employment tactic designed to get employers to submit
to a demand of the units. At the say, here
are the rules, we’re going to follow the rules. We’re not going to give you
a single break in the rules. That’s not normal
life, that’s a tactic. If our political
actors start working to rule, that is, to say,
start taking advantage of every little thing that the
Constitution allows them to do, the system could be in trouble. And I think we’ve seen
a little bit of that. The gerrymandering is
an example of that. The Constitution says
nothing about districting. You can interpret
the equal protection clause, the 15th Amendment, in
ways that limit gerrymandering. But it’s very difficult to do. It’s very difficult to
come up with standards. The courts have
sort of– sometimes they’ve flirted with it, but
basically have backed off and said we can’t come
up with standards. And we really are counting
on the self-restraint of politicians to
say, you know, there are kind of rules
of the game, we got to play by the
rules of the game. And I think it’s
not crazy to say, in the last couple of decades,
we’ve seen a breakdown of that. And these are rules
that exist in a kind of constitutional shadow zone. The courts are not
going to enforce them. Where they’re really in the
Constitution is unclear, but people have kind of
played along with them. Maybe because they think, if
we don’t play along with them, when our time comes, when
were vulnerable to this kind of tactic, we’ll lose out, too. But if that erodes, then
I think we have a problem. The recess appointment issue
actually came out of something like that, where–
the Constitution says that presidential
appointments have to be made with advice
and consent of the Senate. It is literally within
the power of the Senate to refuse to confirm
any appointment made by a president. They could just
say we’re not going to confirm anybody– Secretary
of State, Attorney General, forget it. You’re not getting that. They could do that. They don’t. And in fact, quite opposite. But over time, the Senates have
gotten more and more aggressive about that. In return, presidents have been
trying to use their powers. And I think we’re seeing
this kind of breakdown. And that, rather in the realm
of the law that gets litigated, is where I would identify
both the possibilities and the potential for trouble. Mr. Richard? STUDENT: If there is such
a unanimous agreement that some of these
things are absurd and they just don’t mean what
we actually think they mean, why not employ Article
V rather than just having this great collectively
wink that it’s not really what it says? PROFESSOR: Well, there are
two categories of things. There are things where
no reasonable person could say that it means
what it seems to mean. There are things where it
still might be a little bit controversial. And I think what our
system has evolved to is, we don’t use the
amendment process. It’s very difficult
to use it and we want to make some
of these changes in the absence of
the kind of consensus that you’d need to
produce an amendment. For example, at
the time of Brown against Board of
Education, you could not have gotten a constitutional
amendment through. It would not have gotten
3/4 of the states. More than a quarter of the
states practiced segregation. You could not have
gotten 3/4 of the states to go along with that. Now, you could. But I think, because
the amendment process is so difficult, that we’ve
evolved these other ways of doing things and
they’ve worked well for us. Worked pretty well for us. But that’s the system. That’s the system. If the amendment
process were easier, things would look different. I think you’d see less of this
kind of updating that butts up against the text, and
more formal amendments. But that’s not our system. Our system is one with an
extraordinarily difficult amendment process, and so we’ve
developed these workarounds and that’s now our system. And now, to try to sort of
cut that off and go back to relying on the formal
amendment process, I think both would not
produce good outcomes and would be unfaithful to
these ways of working things out that we’ve arrived at. Ma’am? STUDENT: Hi. So I’m wondering
where you’ve indicated that there are obviously these
situations where it would be so absurd that not
even the most extreme textualists today–
well, maybe some– but most textualists
wouldn’t even provide an exception for
that reading in text. Like your first
example is, presidents having to have been
citizens at the time. PROFESSOR: The comma? Yeah. STUDENT: So I don’t
think anything would go along with that. But then, where do
we draw the line? Where would you
suggest it be drawn? How can you define that standard
between that example and then reading the right
to get an abortion into various amendments in the
Bill of Rights– or the 9th, whatever– where would you
draw the line between them? PROFESSOR: The question–
sorry, here here’s how I would put the question. If we’re willing to
interpret our way around these various
problems, why don’t we just interpret
our way around anything we’re unhappy with? For example– and here’s a
fairly dramatic example– the Supreme Court has
set this rule that in designing state legislatures
and other government bodies at the state and
local level, the rule’s one person, one vote. Everyone sort of has
to be about equal– you have to have districts
with equal population. The Senate, of course,
is a flagrant violation of that rule. So why hasn’t the
Supreme Court said the Senate is unconstitutional? It’s a violation of
one person, one vote. Well, the Senate is actually
very clearly written right into the Constitution. And that’s the answer that you
would be given– no, no, it says two senators per state. It even says that
you can’t amend that without the state’s consent. So something that even
the amendment process can’t deal with it by itself. But it also says Congress and
it also says persons, houses, papers, and effects. And it also says
the other stuff. So why don’t we interpret
our way out of the Senate? That’s the puzzle. And it is a puzzle. Here’s my theory–
I think two things. I think, number
one, it’s a puzzle. I don’t think there’s
an obvious answer. I think it is our practice that
there are some that you cannot just blow off the text. You have to have
some explanation of why what you’re doing is
consistent with the text. And in all of these
examples I gave, there is some explanation. People don’t just
say, oh, forget it. That provision’s obsolete. They squeeze it in. Why do we do that? Here’s why I think we do that. And it actually ties over
to my answer to Mr. Richard. It is actually very
handy– handy understates it– very important on some
issues to have an answer and to have it written down
and right there for everybody to see– on some issues. And it matters a lot
less what the answer is. That we have an answer. Famous passage and opinion
of Justice Brandeis’s, for some things, it’s more
important that it be settled and that it be settled right. And there are things like that. And the written
Constitution can do that. It can give you answers
to certain things where, what exactly
the answer is– could argue within a big
range– but it’s really good to have an answer. The example I mentioned
at the beginning, the date the president leaves office. There is a great
example of that. It is really important to
have a date and time when one president gives way
to the next president. 12:00 noon on January 20. That’s when a
presidential term ends. Imagine if, instead, we kind
of mushed it around and said, yeah, well, they
said that at a time before modern communications
and all kinds of threats to national security and some
presidents should leave earlier and some should leave
later, so the president should leave office
at a reasonable time after the election in
which he’s voted out. Chaos, right? That would not be good. And a written constitution can
do that kind of thing for you. People say, no, no, it’s
in the Constitution. You leave office then. If we started getting in
the practice of not doing these rewritings of saying,
who cares about that provision, it’s obsolete, we
couldn’t take advantage of that or at least our
ability to take advantage of that would be weakened. And if we started
saying, oh, who cares. The Fourth Amendment says
persons, houses, papers, effects, so what. Yeah, the equal
protection clause doesn’t apply to
federal government. Who cares, we
don’t need a clause to apply the equal protection
clause to the government. You can imagine a slippery
slope in which people would say, well, yeah,
it says January 20, but let’s make an exception. And the Constitution is
a barrier against that and that’s important. So the answer to the question
about when should we do it, I say we should–
in doing these work arounds, these sort
of subtle writings or unadmitted rewritings of
the text– what we have to do is take care not to undermine
the ability of the text to settle these things that
really need to be settled one way or another. And that would be my guide post. It’s a whifty guidepost,
it’s not very clear. But actually, I think
that’s where we’ve arrived. Because there is a very
clear norm that you do not declare a provision of
the Constitution obsolete, you do not ignore it,
you not blow it off, you find a textural
home for everything. That is a norm. And this is the way I
would explain that norm. And it’s a little
unsatisfactory, but the best I can do. Sir? STUDENT: So it seems like all
of the examples that you showed, there was kind of a
sense that, OK, yeah, this is pretty clearly how
we want to/ ought to read the Constitution, even though
the words maybe aren’t getting us there super well. And I guess I’m
wondering maybe why you think that most of these
cases come out that way? Or if there are cases where
it’s like, well, maybe you feel like we’ve done this in
error– the question being, this is kind of an easier way
than the amendment process to move a baseline, and
then 50 years later, it’s easy to say, oh,
yeah, of course we want paper money
because our baseline has sort of been moved. Are there anywhere
where it could be reasonable to have
said at the time, no, this is a bad idea
and maybe history could have gone another way, but now
we just think, oh, of course we want to do it this way. That would make me
a little suspicious of being able to play this a
little bit loose, as you’ve kind of been demonstrating. PROFESSOR: It is certainly right
that an evolutionary system of the kind that I
think we actually have is path dependent. And there could be
turns that are taken, they didn’t have to be taken,
it was a fortuity of who happened to be on
the Supreme Court, circumstance in the country. And then, as you say,
we go down that path and we’re committed to that
path and we could have easily been on a different path. And the other path
might have been better. That is true. I think that is an unavoidable
feature of this system that relies on evolution and
precedent, which is what I think our system relies on. Now, what’s the alternative? Well, the alternative
you’re gesturing at– and it is an alternative that
some people would embrace– is what I would regard– without
being pejorative about it– as a kind of fundamentalism. Because what a common move in
attacking evolutionary systems is to say, let’s go back
to first principles. Everything that’s
grown up is corrupt. We need to go back to the
foundations, to the founders, to where we came
from, and get back in touch with our
first principles and get rid of all this
stuff that’s accumulated. And that is a common
move among reformers. And that’s the Protestant
Reformation that did that. And I think that is the
impulse behind a lot of resort to the text, is to try to– it’s
a place to stand when you’re attacking the tradition. Now, here’s the problem. You can’t. You can’t get back to
the first principles. Too much has changed. And if you try to get back
to the first principles, inevitably, you’re
going to be getting back to something you’re reading
into the first principles, consciously or not. Because you can’t get
back to James Madison. James Madison lived in
too different a world. So you’re going to get back to
your version of James Madison. And if the choice is between
path dependence and that, I would choose the
path dependence. Not because path dependence
is unproblematic, but because the risk of
handing over the power to do the fundamentalist
thing, to say, I know what the first
principles were, I, a judge, know what the first principles
were, I’m going to get us back in touch with that. That’s the scary power. Following along in a path that
maybe we shouldn’t have taken is, as they say in
the trade, suboptimal. But not as bad,
I think, as that. That would be my pitch, anyway. Yes, sir? STUDENT: Is that a
really compelling case for why it’s
necessary and indeed good to read in
some interpretation? I guess I’m just
wondering why originalism is so popular, then, if it
seems so obviously [INAUDIBLE]? PROFESSOR: I think it’s tied
into the answer I just gave. I think– well, there are
a couple things going on. There is an appeal to
feeling that you’re part of an ongoing project. It’s a human tendency,
a human desire, and there’s nothing
wrong with it. And anybody, we’re stuck
with it, being human. That it’s nice to feel you
are not, in Burke’s phrase, the flies of a summer. That you have some
continuity with people who went before you,
people who came later. That’s an important
thing to feel. And people want to feel
they’re part of an American– a lot of people–
want to feel they’re part of an American tradition. The same way they might
want to feel they’re part of some other
tradition religious or ethnic or familial. And originalism appeals to that. I’m not just
standing here alone, I’m part of this
ongoing tradition. That’s one reason
for the appeal. And I don’t want to disparage
that, I think that’s fine. I don’t think that should
govern our interpretation of the Constitution,
because I think our interpretation
of the Constitution ought to appeal
to people who say, well, I don’t want to be
part of that tradition. I belong to a
different tradition. And I’m willing to
stay here and I’m willing to play by your
rules, but don’t tell me that I’m somehow bound by
the mystic ties of memory to James Madison, I’m not. I’m bound by the mystic ties
of memory to my ancestors in central Europe. And the Constitution ought
to speak to those people. So that’s why I
think the originalist impulse is– there’s nothing
intrinsically wrong with it. I question it as a way of
interpreting the Constitution. I think the reason you see it
crop up is tied into my answer to the last question,
which is, I think it is a move that reformers make. And in fact, if
you look at people who’ve made
originalist arguments in American constitutional
law– we think of it today as conservative. It’s not. In fact, the most
influential originalist in American constitutional
law was Justice Black– was a liberal. Much more effective
and influential– just because of the composition
of the court– than today’s conservative originalists. He was doing this
fundamentalist move. He was unhappy with the
tradition he had been handed. The tradition he had been
handed was a tradition in which the courts
were interfering with economic regulation
and in which the courts were upholding racial segregation. He hated both of those
things, and so he said, let’s go back to the framers. Now, it wasn’t
really the framers, it was really his
conception of the framers. But that’s the move he made. I think conservatives
today don’t like some of the ways in
which the country and the law developed in the ’60s, ’70s, and
’80s, and so it’s their turn. And that would predict that
what you’re going to see is an upsurge of liberal
“originalism” today, and you do. You do. You see liberals attacking
the conservative law by saying things like, if
the original– and they did actually say this–
the original understanding, properly understood, supports
the right to an abortion. I actually think Roe
against Wade is probably correctly decided, but come on. But that’s the move. That’s the move
you’re going to see. And I think it is this
cultural thing, which I think is
understandable, and then the rhetorical
thing– which I also get– but I think that is
different from actually looking there as a source of law. Great, thank you. Thank you, guys. [APPLAUSE]

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  1. Yes it does mean what it says. It is the FOUNDATION of our Republic (not democracy) and restrains the Federal Government from tyrannical rule over the people.

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