Our Constitution: A Conversation
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Our Constitution: A Conversation

October 10, 2019

summer of 1787, delegates to the
Constitutional Convention gathered in Philadelphia
to create a document that would establish the
government of the United States. On September 17th,
that landmark document, our Constitution, was
signed. In commemoration of that day, students from
several Philadelphia high schools were recently
invited to the Supreme Court Building in
Washington, DC to meet with Justices
Sandra Day O’Connor and Stephen Breyer. The views
of the students and the responses of the Justices
provided a unique glimpse into the workings of
America’s highest court and the document
that shaped our history and
guides our future. JUSTICE SANDRA DAY O’CONNOR:
It’s nice to have you safely here and assembled.
And are you all ready to start with
some questions about our Constitution and our system?
Who’s going to start off? STUDENT: How do
you believe the Constitution should
be taught in schools, especially with all the
new resources that we have, and the fact that a
lot of young people simply view the Constitution as
something that was created 200-something years ago and is
old and maybe out of date? JUSTICE O’CONNOR: I hope
that the Constitution is something that
every school in America will try to teach
to young people. You don’t inherit it through
the gene pool. Every generation has to
learn about this, learn about the history.
Why was it written, why do we have one? What
does it provide? What are the benefits of having
such a Constitution? Has it worked and how do we
as citizens help make it work? And I want to
show you something today, this is show and tell
time. Each of you are holding a little booklet
with our Constitution, aren’t you? In the
little booklet I have, the basic Constitution is
20 little pages and then there are some additional
pages for the… a few amendments that we’ve had
to the Constitution and that’s it. Have you
noticed in the news that there was a proposed
new Constitution for the European Union, here it
is. It’s 450 pages long, approximately. How many of
the voters do you think in France or the Netherlands
could read that and understand it or would
bother? And they voted no, didn’t they? Well
this little Constitution certainly has the benefit
of being short enough and simple enough
that all of us, as citizens, can read
it and understand it and what a
blessing that is. STUDENT: I was wondering, why do
you think we have a Constitution? JUSTICE O’CONNOR: Oh, well to
establish the fundamental ground rules
for a government, otherwise we’d have
anarchy. What would we have if we didn’t have
some basic principles of governance in this country,
a system of government? JUSTICE STEPHEN BREYER: Think
of then, 13 million people… what are there
today? 300 million. JUSTICE O’CONNOR:
Almost 300. JUSTICE BREYER: And
we’re… we’re in a country with every
race, every religion, every point of view, every
possible national origin. They’re not just from
California and New Mexico, Maine, Massachusetts,
who knows where they come from? They come from
all over and they live together. Think of
then, they all came from England, 90 percent and
those who could vote, the others were slaves,
I’d think of then. And… they were still
arguing, weren’t they? The Virginians and the
ones from Massachusetts, wow, they got into
arguments. You get into arguments in your class,
but you settle them, you got here
didn’t you? Well, you think people don’t
argue on… on the basis of abortion, how do you
think people feel about that? How do you think
they feel about prayer in schools? How do you think
they felt about the last election or the one
before? Go look on television, see how they
do it in some places. They pick up paving stones and
hit them over the head, or worse. And we don’t
do that, we don’t do it. JUSTICE O’CONNOR: Do
you want to fight it out on the streets, or
do you want to take it to court and it’s about
that simple in a way. JUSTICE BREYER: I’ve been
reading some of the history of this and one of these foreign
observers, I’ve been reading De Tocqueville, and he
noticed it 160 years ago, that Americans, from the
time they’re six years old, are forced to learn
how to work with each other in groups. And they
have to learn how to get my way, I better be sure
you’re getting your way. Or if we can’t do
it, we’ll work out a compromise. Or if
we can’t do it, it’ll be a mess, but
eventually we’re going to work together. Now
that, taught in school, is what lets this document
work because at the heart of this document, I would
say is not free speech, it’s there. It’s not
even equal protection, that’s there or federalism
or separation of powers, those are very,
very important, but they’re not what this
is about. What this is really about at
the bottom of it, is how to
create a country, now of 300 million people,
where people can solve their problems
democratically. And all this document is and
all our work with it is, is figuring out
how in large groups, states,
communities, associations, of us, people… put to
work the same principles that you put to work every
time you work with six of your friends and figure
out these five other people are about as
irritating as I’ve ever met. But nonetheless I’m
going to get this group together and we are going
to accomplish what we’re supposed to do. You figure that
out, your figure this out. STUDENT: What factors
do you think need to be in place, if
any, other than just cons… different
Constitutional logic in order to overturn
a precedent? JUSTICE O’CONNOR:
What would motivate us to overturn a
precedent of our Court? STUDENT: In
addition to, you know, does there have to be
something in addition to you just thinking that it might
be wrong or is that enough? JUSTICE O’CONNOR: Well
I think you have to be able to persuade at
least five members of this nine-member Court that
an earlier judgment and opinion, decided
by this Court, is now clearly wrong.
That is possible to do, we can be
persuaded, at times, that something we decided
earlier has become, over time, no longer
defensible. And the most clear, big example was
in Brown vs. Board of Education when the Supreme
Court decided to overrule the old Plessy vs.
Ferguson principle that you could have separate
public facilities for people, based on race,
provided they were roughly the same, you know, the
same school. One for… people of the black race,
one for people of the white race, that’s what
Plessy said was alright. The members of this Court
unanimously concluded that just was not valid. And
it overturned it. So what standard is required?
It’s just a standard of persuading at least five
members of the Court that the earlier precedent
is clearly wrong and shouldn’t remain the
law of the nation. JUSTICE BREYER: That last
phrase is very important. Everyone of us understands
that if you change the law too often, even when
it was wrong before, people cannot
live their lives, they can’t
plan how to live, they can’t plan their
societies. So no one thinks just
because a case is wrong, that you’re going to
overturn it. They have to both think it was wrong
and think it’s harmful and causing a lot of trouble.
Now if you said never overturn a case, we’d
still live in a society that had racial
segregation. That would be terrible. So of course
sometimes you have to overturn a case, but five
people have to agree it was wrong then, it’s wrong
now and it’s causing a lot of harm to the point where
even though people had to plan their lives, we better get rid
of it. That happens very rarely. STUDENT: I have
a question, a two-part question
for both Judges. How closely do your
own moral values, how closely are
they aligned to your interpretation of the
Constitution and would you vote for a decision that
is Constitutional but not in line with your
own moral values? JUSTICE BREYER: Oh yes, is
the… the second one of course. It depends on what
the value is you’re talking about, but everyday
I… I mean I don’t, if… if it’s a decision
that’s going to lead to the deaths of thousands
of people like the Nazi judges in Germany, the
answer there is I would quit rather
than be one of, I hope, rather than be one
of the Nazi judges. But there are all kinds of
decisions all the time that maybe this drug is
forbidden or that drug is forbidden or we’re not
going to forbid this or we are going to forbid
that or this search is forbidden in a high school
and I think to myself, I don’t really like that
that much. If I were there voting for it as a
voter or an elector, I’d vote the other way.
But my job is to say is it against the Constitution?
And so I’ve often said I think it is, it’s not
against the Constitution even though I would
never vote for it. JUSTICE O’CONNOR: Or if it’s
a statutory interpretation question, interpreting
some law passed by Congress, we might think
that’s a terrible law and that had we been in
the Congress voting, we would never have voted
for it. But it was passed and there it is and it was
clear enough that we think we ought to enforce
it, even though we think it’s…it’s odd. And
why? Every officeholder including every federal
judge takes an oath of office when we assume
the role of judge. And we swear to uphold the
Constitution and laws of the United States, so help
me God. And it doesn’t matter what I personally
think or would do at all, it matters what the
Constitution provides and the laws of the United
States. And we do our best to interpret those
faithfully and it doesn’t matter that my personal
views might be different. STUDENT: My question
deals with separation of powers, do you think that
if today if we made a new Constitution or if
the Founders wrote the Constitution today,
considering how much power the President and the
Executive Branch in general has gained, do
you think they would place more limitations or define better
what… separating the powers? JUSTICE BREYER:
No, no I don’t. The separation of
powers between the three, the…
the President, the Congress, and the
Judiciary is not a total separation. The term that
really describes it best is checks and
balances, in my mind, and a checks and balances
that itself is not too well defined. All you know
is there’s tension. So when we hear members of
Congress say they don’t like us, I figure that
goes with the job and indeed they don’t like the
President sometimes. And sometimes the President
doesn’t like them and nobody likes anybody
too much or I’d say so, but do you think that’s what
it was supposed to be? JUSTICE O’CONNOR: And the
genius and innovation of this Constitution
of ours was that it established three
separate branches, each with some power
over the other two. It was rather an
innovation in the world, at the time it was
written and it really has withstood the
test of time. JUSTICE BREYER:
Now is there an ideal balance, no.
It’s been different at different stages of the
country’s history. There have been different
shifts as to which of the branches is predominate
or how predominate and whatever and that reflects
circumstances and politics. JUSTICE O’CONNOR:
And it’s hard to get legislation out of
both Houses, the House and the Senate,
and then to get the President to approve it.
And then if it’s alleged to be unconstitutional, it
might get reviewed in the courts. The result is
that… they set up a process that’s
pretty tough. JUSTICE BREYER: But
the fundamental idea is nobody
gets too powerful, that’s why we set up this
system where we divide the power into pockets, that’s
an inefficient system, but it is a system that
protects against one small group of people gaining
all the power. STUDENT: I think that when
the framers were writing the Constitution the
situation in the United States and the
relationship between federal government and
state government was a lot different than it is now.
And do you ever find that in your rulings there are
specific aspects of the Constitution that
frustrate you to have to apply it to modern
day cases? JUSTICE O’CONNOR: I don’t think so,
I think that’s the… one of the reasons why the
Constitution that we have is in fact so special. It
has lasted longer than any other constitution in the
world today. I think it was… very well crafted
to serve us then and to serve us now. And if there
are any crucial problems that emerge, they can
certainly be addressed by a proposed Constitutional
Amendment. JUSTICE BREYER: The biggest flaw
they would have said at the time would certainly
..true to be …was the problem that they didn’t
deal with slavery. JUSTICE O’CONNOR:
But that was… JUSTICE BREYER: ‘Cause
initially we only had to fight a Civil War
because of that, alright and then the… the
Constitution was amended. STUDENT: Do you
believe that federal policies such as No
Child Left Behind or minimum drinking age
and things like that, that effectively force
states into making laws, do you believe that is
an abuse of federal power where the jurisdiction was
originally states rights but by withholding funding
for say highways or something, the states are
forced to make the decision? JUSTICE O’CONNOR: It’s
a good question, it deals basically with
federalism. What are the respective
powers of the states and the national government?
And when the Constitution was written, of course, it
was a system whereby the states retained most of
their sovereign powers and the concept of the people
who wrote the Constitution was to create a national
government with limited powers. JUSTICE BREYER: Now go back
to the Constitution, look at
Article 1, it says, “Congress shall
have the power”, It gives
directly to Congress, to regulate commerce
among the states and with foreign nations.
Then look at the 10th Amendment, look
at that, it says, “The powers not delegated
to the United States”, that means to the
federal government, “by the Constitution,
nor prohibited by it”, which there
are only a few, “are reserved
to the states, respectively or to the
people.” And that means if you don’t find the
power delegated in the Constitution, it’s there
in the states. Now why did they do that?
When they wrote it, it was a government, it
wasn’t even in Washington, it was Philadelphia,
wasn’t it? Everywhere else was far away. Well
if it’s far away, it would be absurd having
people in Philadelphia or wherever the capital was,
telling them what to do. Justice O’Connor grew
up on a ranch in… in Arizona and people from
Washington used to come and tell them how
to run their cows, they didn’t know
a thing about it. JUSTICE O’CONNOR: And we didn’t
like it either when they’d come and tell us
how to do that. JUSTICE BREYER: They didn’t, so the
people who wrote this Constitution understood that local
affairs have to be run locally. And only those
things that are given to Congress for national
purposes can be done by Congress. And the big
question today which you can resolve is how are
we going to divide those things which really do
belong in the states from those things which we
have to have decided in Washington by the federal
government? Nobody has the answer to that question,
nobody. What I think the disagreement is really
about is I probably think that most of the question
I just said is the big question, should be decided in
Congress itself. Justice O’… JUSTICE O’CONNOR:
You see, I don’t. JUSTICE BREYER:
Yeah, that’s right. JUSTICE O’CONNOR: And I…
And… I grew up thinking that the best
government is the government closest to us,
our local government and if need be, the
state level government, but certainly
not Washington, DC. I don’t regard
that as the best, I regard that as something
that Congress was given specific authority to
do, but beyond that, let’s leave it
closest to the people, so that’s where we have
some disagreements. STUDENT: In light of
President Bush’s war on terror, do you believe that…
in terms of individual rights, when is it,
if ever, justified to sacrifice individual rights
for safety purposes? JUSTICE BREYER: Justice
O’Connor wrote, I thought a very good opinion, I
agreed with the opinion, on the question of
Guantanamo and that was a matter that does involve
rights of individuals and problems of
security, alright, now that’s a different
part of the Constitution. We’ve talked about
the basic democratic structure, we’ve talked
a little bit about the division of powers
between states and federal government. It
creates a rule of law, that’s why we’re here. And
now you’re talking about some of the individual
sections that set boundaries to protecting
human rights. JUSTICE O’CONNOR: For
instance, evidence, somebody is charged
with a criminal offense, a federal criminal
offense. Maybe something related to some alleged
terrorist activity and some of the evidence
against the individual was obtained pursuant to a
wiretap that was obtained pursuant to… some
law passed by Congress recently that made it
easier to get authority for a wiretap. And so the
criminal defendant might say, that law
went too far, it doesn’t meet the
requirements of the 4th Amendment to our
Constitution. So we think the Court should have
excluded that evidence. JUSTICE BREYER: Alright
let’s look at the section. What Amendment were you
talking about? Fourth. JUSTICE O’CONNOR: Fourth.
JUSTICE BREYER: Let’s try…… the Fourth which is made
applicable to the states by the 14th, you’re quite
right. But let’s look at the Fourth. It says, “The
right of the people to be secure in their
persons, housings, papers and effects,
shall not be violated, that’s the right, right?
Shall not be violated, but it’s a right against what?
What does it say there? JUSTICE O’CONNOR: Unreasonable
searches and seizures. JUSTICE BREYER:
Unreasonable searches and seizures, so
the question is, in all the cases that
you’re talking about, what’s unreasonable?
Do you think it’s unreasonable to search a
person’s house without a warrant? Yes, you do. Well
suppose I tell you that the police just saw a
man grab a woman from the street, kidnap her with
a knife and run into the room of the house next
door. You want the police to go and get
a warrant? No, because now I’ve showed
you right then and there, that whether something
is or is not reasonable, depends on the particular
circumstance. Now the problem of terrorism
and you should read the Guantanamo
opinion, I liked it, I joined it and that means
I liked it. But you see it’s carefully written,
why? Because what counts is reasonable in
time of peace, is not quite so reasonable
or unreasonable always if there are terrorists about
to blow up a city or if you’re at war. And so
one of the most difficult things for the court
system has been to decide, in a time of
war or emergency, is this reasonable or is
it not reasonable? Now, in World War II, the
country arrested all the Japanese citizens who
lived in California, where I grew up, where
I grew up. And I can remember my mother
showing me the place, Tanforan Race Track,
where they were held and then sent
to the Midwest. JUSTICE O’CONNOR: Now
these were citizens of the United States of
Japanese ancestry. JUSTICE BREYER: Correct.
Now why did they do that? Well they said
that they did it because they were worried about
an invasion and there was some concern. But those
people who were arrested, did nothing wrong at all,
there was no reason for concern about them and
the FBI at the time, the FBI told the President
of the United States, there isn’t one of them
who’s a danger. But still they moved them to the
Middle West and they were held against their will
and I would call that war hysteria. The country
made a mistake. JUSTICE O’CONNOR: Although
the case came all the way to the U.S. Supreme Court and what
do you suppose the Court did? JUSTICE BREYER:
Said it was okay. JUSTICE O’CONNOR: It
said it was alright. JUSTICE BREYER: There were
some dissenting voices, but it said it was
alright. So we know about that case, and we sit here
thinking we don’t want that to happen to us.
We don’t want to make a mistake that years
later everybody would say, that was an unnecessary
and wrongful infringement of people’s liberty.
But we also know that the terrorist danger
is not something made up, that it’s
actually real. STUDENT: Which case do you
think has most influenced the direction of the
country during your term? JUSTICE O’CONNOR: We’ve
had any number of cases here involving that very
challenging, difficult issue of the extent to which states
may regulate abortion. And those have been very
difficult for the Court and very difficult for the
country. And we’ve had a number of cases and
probably that has had some effect since we’ve
been here. We had a case involving… the
presidential election before last, the Bush-Gore
cases that came here. And they were significant in a
way because the election result was… ended, the
process was ended with the Court’s decision although
subsequent three recounts of every vote there show
that the result would not have changed, regardless of
the holding of the Courts. JUSTICE BREYER: Since
I’ve been here, I would say
the… the case, if I have to pick one
that’s had the most influence in the law and
it’s not that it has an influence, it’s that I
think stopped what would have been a major change,
I think is the affirmative action case, because
I think the country generally has adjusted to
a degree of affirmative action. It
can’t go too far, but if we had said you
can’t have any at all, I think that
would have been, had an enormous effect
and I don’t think it would have been a
positive effect, I think it would
have been harmful. But, so I would pick that
one, really for… JUSTICE O’CONNOR: If you go
back a few more years before I got here, the Court handed down
some one person, one vote… JUSTICE BREYER:
Oh yes. JUSTICE O’CONNOR: … decisions
which basically changed the way in which…
district boundaries are drawn for purposes of
Congressional elections or even within states for
electing legislatures. JUSTICE BREYER: If you
want to go back to the 20th century, that period, I’d
say probably Brown vs. Board. JUSTICE O’CONNOR: Brown.
JUSTICE BREYER: Brown vs. Board made all the
difference to the country. STUDENT: I want to look
into the future and ask you if you think that the way
in which the Supreme Court works will ever be changed
and if so, in what way? JUSTICE BREYER:
The essence of being a judge in this
Court or any court in the United
States is first, anyone can come in and
present their claim and you will decide the
claim on the merits of the claim, not the merits of
the person. It can be the poorest person or the
richest person. It can be the most powerful or
the least powerful, what’s of importance to
the judge is the merits of the claim and not who that
person is. And that’s at the heart of coming in.
Then when the judge has the case, he or she reads
the argument or listens to them, without prejudice
and thinks about it. There has to be time to think it
through and get an answer. And then the third thing
is to write that answer down with reasons
and the reasons, when it’s a good opinion,
must be the true reasons. The real reason
why you, as a judge, have come to this
conclusion under the law and not somebody else’s
reason or it sounds good or… or it was the
easiest thing to say. It has to be the true reason and
that I hope will not change. JUSTICE O’CONNOR:
That’s a good process, I don’t see it changing. I
think that serves… well to resolve the issues
and I think it serves the nation well when we give
detailed explanations of our reasons for what
we do. In that sense, the Supreme Court is the
most open of the branches because in every instance
we give our reasons and that isn’t necessarily
the case for a decision by Congress or the Executive.
Now I see our time’s up and I have to say it’s
gone very fast and I’d also like to say
that you’ve been good participants, you’ve asked
good questions and you’ve engaged very much in the
discussion we had today. So, it’s been a pleasure to have
students from Pennsylvania… JUSTICE BREYER: And
very good questions. JUSTICE O’CONNOR: … to be with
us today for this discussion. JUSTICE BREYER: Excellent,
very good questions. ♪ MUSIC ♪

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