ANNOUNCER: THE UNITED STATES IS THE OLDEST CONSTITUTIONAL DEMOCRACY IN THE WORLD, AND MANY AROUND THE WORLD CONSIDER OUR CONSTITUTION NEARLY A SACRED TEXT, CERTAINLY AMONG THE MOST IMPORTANT LEGAL DOCUMENTS EVER WRITTEN, BUT FOR OVER TWO CENTURIES, WHAT THE CONSTITUTION MEANS AND HOW IT AFFECTS THE LIVES OF AMERICANS HAS BEEN DETERMINED BY THE SUPREME COURT OF THE UNITED STATES.

WHILE AMERICANS ON THE POLITICAL LEFT AND RIGHT BOTH PLEDGE ALLEGIANCE AND REVERENCE FOR THE CONSTITUTION, THERE IS A DEEP DIVIDE ON THE PHILOSOPHY OF INTERPRETATION THE SUPREME COURT SHOULD APPLY TO THE CONSTITUTION.

HOW SHOULD THE JUSTICES FULFILL THIS, THEIR GREATEST DUTY?

THIS EPISODE OF "THE WHOLE TRUTH" WAS MADE POSSIBLE BY WILLIAM AND SUSAN DORAN, UGI CORPORATION, NJM INSURANCE, CNX RESOURCES CORPORATION, RAZA BOKHARI, JOHN AND PATRICIA WALSH, THE CHARLES KOCH INSTITUTE.

FOR HUNDREDS OF YEARS IN ENGLISH-SPEAKING COURTROOMS AROUND THE WORLD, PEOPLE HAVE SWORN AN OATH TO TELL NOT ONLY THE TRUTH, BUT RATHER THE WHOLE TRUTH.

THE OATH REFLECTS THE WISDOM AND FAILING TO TELL ALL OF A STORY CAN BE AS EFFECTIVE AS LYING IF YOUR GOAL IS TO MAKE THE FACTS SUPPORT YOUR POINT OF VIEW.

IN THE COURTROOM, THE SEARCH FOR TRUTH ALSO RELIES ON ADVOCATES ADVANCING FIRM, CONTRADICTORY ARGUMENTS AND DOING SO WITH DECORUM.

ALL OF THESE APPLY TO THE COURT OF PUBLIC OPINION, WHAT JOHN STUART MILL CALLED "THE MARKETPLACE OF IDEAS."

THIS SERIES IS A PLACE IN WHICH THE COMPETING VOICES ON THE MOST IMPORTANT ISSUES OF OUR TIME ARE CHALLENGED AND SET INTO MEANINGFUL CONTEXT SO THAT VIEWERS LIKE YOU CAN DECIDE FOR THEMSELVES THE WHOLE TRUTH.

IT'S OFTEN BEEN SAID THAT THE SUPREME COURT IS NOT NECESSARILY THE FINAL INTERPRETER OF THE CONSTITUTION WITH THE AWESOME POWER THAT ENTAILS FOR DEFINING THE LIMITS OF LIBERTY ON ONE HAND AND THE LIMITS OF GOVERNMENT ON THE OTHER HAND.

IT IS NOT ALWAYS RIGHT IN THE SENSE OF BEING CORRECT, BUT RATHER IT IS RIGHT BECAUSE ITS WORD IS FINAL, AT LEAST UNTIL ANOTHER IMPORTANT CHALLENGE COMES BEFORE IT.

SOMEONE HAS TO GET THE LAST WORD ON WHAT THE SUPREME LAW OF THE LAND MEANS, AND THAT DUTY FALLS TO THE SUPREMES, BUT, OF COURSE, AMERICANS DO WANT THE SUPREMES TO GET IT RIGHT.

FOR PEOPLE ON THE AMERICAN RIGHT, LEGAL DOCTRINES CALLED ORIGINALISM AND TEXTUALISM, WHICH ARE RELATED BUT DISTINCT FROM EACH OTHER, FORM THE BEST AND THE PROPER FRAMEWORKS WITHIN WHICH THE SUPREME COURT SHOULD INTERPRET THE CONSTITUTION OF THE UNITED STATES.

FOR THOSE ON THE LEFT, A DIFFERENT APPROACH WHICH MANY DESCRIBE AS TREATING THE CONSTITUTION AS A LIVING DOCUMENT WHICH MUST BE READ TO REFLECT THE VALUES AND THE ASPIRATIONS OF EACH NEW GENERATION IS THE RIGHT ROLE FOR THE COURT TO BEGIN WITH NOW.

ON THIS EPISODE OF "THE WHOLE TRUTH," WE WILL ENGAGE IN AS DEEP AS POSSIBLE A CONVERSATION ABOUT THESE COMPETING VIEWS OF THE ROLE OF THE COURT AND OF THE CONSTITUTION ITSELF IN AMERICAN LIFE.

WITH US FOR THIS DISCUSSION TODAY ARE LEGAL SCHOLARS PROFESSOR KERMIT ROOSEVELT OF THE UNIVERSITY OF PENNSYLVANIA LAW SCHOOL AND PROFESSOR ILAN WURMAN, FELLOW AND LECTURER IN LAW AT THE SANDRA DAY O'CONNOR COLLEGE OF LAW AT ARIZONA STATE UNIVERSITY.

TO BEGIN WITH, I'D LIKE TO ASK BOTH OF YOU-- YOU'RE EXPERTS IN THIS AREA-- TO LAY OUT, I WOULD SAY, THE POSSIBILITIES, WHAT KINDS OF APPROACHES THAT SUPREME COURT JUSTICES TAKE TO INTERPRETING THE CONSTITUTION.

WE HEAR A FAIR AMOUNT ABOUT ORIGINALISM.

WE HEAR ABOUT TEXTUALISM.

I WOULD ADD A THIRD, WHICH WOULD BE REALISM, JUDICIAL REALISM, AND YOU ALL, BEING SCHOLARS IN THE FIELD, WOULD PERHAPS KNOW MORE, BUT, ILAN, WHAT ARE WAYS THAT-- AND WHAT ARE THE DIFFERENCES?

WELL, I WOULD SAY THAT THERE ARE TWO GENERAL SCHOOLS OF THOUGHT HERE.

ONE CAN BE DESCRIBED AS ORIGINALISM, AND THERE'S A VARIETY OF FLAVORS OF ORIGINALISM.

YOU MENTIONED ORIGINALISM AND TEXTUALISM.

SOME SCHOLARS THINK THEY'RE DIFFERENT.

I'M ACTUALLY NOT CONVINCED THAT THAT'S THE CASE.

WHAT IS TEXTUALISM?

TEXTUALISM IS THE IDEA THAT WE SHOULD FOLLOW THE TEXT OF THE LAW.

WE SHOULD FIGURE OUT WHAT THE LAW MEANS.

WHAT IS ORIGINALISM?

WELL, IT'S THE IDEA THAT WE'RE BOUND BY THE MEANING OF THE LAW, AS WELL, MEANING OF THE TEXT, AS WELL, AND THE TEXT'S MEANING IS FIXED TO THE TIME THAT THE TEXT WAS WRITTEN, AND SO I DON'T REALLY SEE A DIFFERENCE BETWEEN ORIGINALISM AND TEXTUALISM.

SOME SCHOLARS DISAGREE WITH THAT.

I WOULD SAY THAT THE KEY DIFFERENCE-- OR THE KEY COMPETITOR TO ORIGINALISM IS WHAT'S OFTEN CALLED LIVING CONSTITUTIONALISM.

THERE IS A VARIETY OF NON-ORIGINALISMS, OF WHICH LIVING CONSTITUTIONALISM IS, ARGUABLY, JUST ONE, BUT IT IS THE BIGGEST CONTENDER.

SOMETIMES IT'S CALLED COMMON LAW CONSTITUTIONALISM, AND THE BASIC DIFFERENCE IS, AGAIN, ORIGINALISM IS THE IDEA WE CAN INTERPRET THE CONSTITUTION WITH ITS ORIGINAL MEANING, THE MEANING ITS WORDS WOULD HAVE HAD TO THE FRAMERS WHO WROTE IT AND THE PUBLIC THAT RATIFIED IT, WHEREAS LIVING CONSTITUTIONALISM, COMMON LAW CONSTITUTIONALISM IS THIS IDEA THAT JUDGES SHOULD UPDATE THE MEANING AND CONTENT OF THE CONSTITUTION OVER TIME TO MEET WHAT THEY SEE AS MODERN CIRCUMSTANCES.

KERMIT, IT'D BE VERY INTERESTING TO HEAR WHAT YOU HAVE TO ADD TO THAT.

I THINK THAT THE LIVING-CONSTITUTION IDEA IS SOMETHING THAT IS CERTAINLY ASSOCIATED WITH PEOPLE WITH THE NAME ROOSEVELT.

FRANKLIN ROOSEVELT IS AN OBVIOUS ONE.

FRANKLIN ROOSEVELT GAVE ANY NUMBER OF SPEECHES, INCLUDING THE SPEECHES HE GAVE DURING THE COURT-PACKING EPISODE IN 1937, ON JUDICIAL PHILOSOPHY AND WHAT HE CONSIDERED TO BE ESSENTIAL DEMOCRACY AND THE FLEXIBILITY OF THE U.S. CONSTITUTION, BUT I THINK THE IDEA THAT THE CONSTITUTION GROWS IS SOMETHING THAT HE ARTICULATED.

I ALSO THINK OF THEODORE ROOSEVELT, WHO HAD A THEORY OF THE PRESIDENCY WHICH IS VERY EXPANSIVE.

IT WAS CALLED THE STEWARDSHIP THEORY OF THE PRESIDENCY.

THE IDEA IS, THE PRESIDENT IS NOT BOUND BY THE LITERAL COMMAND OR TEXT OF LAWS, THAT THE PRESIDENT HAS AN AFFIRMATIVE DUTY TO DECIDE WHAT MUST BE DONE AND TO FIND WAYS LEGALLY TO DO IT, AND I THINK THAT THAT'S PROBABLY A VARIATION ON THE IDEA OF WHAT YOU'RE SAYING, THE LIVING CONSTITUTION THERE, ILAN, BUT WHAT WOULD YOU ADD TO THAT, KERMIT?

WELL, BASICALLY, WHAT I WOULD SAY, YOU KNOW-- AND I AGREE WITH A LOT OF WHAT ILAN SAID-- I FEEL THAT THE BIGGEST PROBLEM IN OUR POLITICAL CULTURE NOW IS THAT PEOPLE ARE PRESENTED WITH OVERSIMPLIFICATIONS, SO THERE'S A LOT TO BE SAID ABOUT JUDICIAL INTERPRETATION.

JUDICIAL INTERPRETATION IS NOT THE ONLY THING THAT GOES INTO DECIDING CONSTITUTIONAL CASES.

JUDGES HAVE TO TAKE OTHER FACTORS INTO ACCOUNT-- USUALLY, THEY DO-- BUT AS FAR AS INTERPRETATION GOES, I THINK THE GENERAL PUBLIC IS REALLY OFTEN PRESENTED WITH CARICATURED VERSIONS OF THESE POSITIONS SO THAT ORIGINALISTS SOMETIMES LIKE TO SAY THE CHOICE IS BETWEEN FOLLOWING THE ORIGINAL MEANING OF THE CONSTITUTION AND JUDGES MAKING UP WHATEVER THEY THINK FITS THE NEED OF THE TIMES, AND IF YOU PRESENT IT THAT WAY, I THINK ORIGINALISM SOUNDS A LOT BETTER.

WHY WOULD YOU HAVE A WRITTEN CONSTITUTION IF JUDGES COULD JUST DO WHATEVER THEY FELT WAS NECESSARY?

I DON'T THINK, HOWEVER, THAT THERE ARE A LOT OF JUDGES WHO WOULD DESCRIBE WHAT THEY'RE DOING IN A PARTICULAR CASE AS CHANGING THE MEANING OF THE CONSTITUTION BECAUSE THAT'S WHAT THE NATION NEEDS.

NOW, ON THE OTHER SIDE, ORIGINALISM IS OFTEN CARICATURED BY PEOPLE WHO SAY, IF YOU'RE AN ORIGINALIST, WHAT YOU'RE SAYING IS THAT CONSTITUTIONAL CASES SHOULD COME OUT THE SAME WAY THAT THEY WOULD HAVE WHEN THOSE CONSTITUTIONAL PROVISIONS WERE RATIFIED SO THAT IF SOME GOVERNMENT ACTION, LIKE RACIALLY SEGREGATING PUBLIC SCHOOLS, WAS CONSTITUTIONALLY PERMISSIBLE IN, SAY, 1868, IT MUST STILL BE OK NOW, AND I THINK MOST ORIGINALISTS, AT LEAST IN THE ACADEMY, DON'T AGREE WITH THAT.

YOU DO SEE JUDGES MAKING THAT ARGUMENT SOMETIMES, AND ORIGINALIST JUDGES, INTERESTINGLY, BEHAVE DIFFERENTLY FROM ORIGINALIST SCHOLARS, BUT I THINK THAT BOTH OF THOSE DICHOTOMIES ARE REALLY FALSE DICHOTOMIES, AND THE TRUTH, BOTH IN TERMS OF THE WAY ACADEMICS THINK ABOUT IT AND REALLY IN TERMS OF THE WAY MOST JUDGES BEHAVE, IS ACTUALLY SOMEWHERE IN BETWEEN THOSE POLAR OPPOSITES.

NOW, CORRECT ME IF I'M WRONG, BUT PERHAPS A DISTINCTION BETWEEN TEXTUALISM AND ORIGINALISM WOULD BE THE KINDS OF SOURCES THAT A JUSTICE MIGHT CONSULT TO DETERMINE THE MEANING OF A CONSTITUTIONAL PROVISION.

AS I UNDERSTAND IT-- MAYBE THIS IS WRONG-- BUT ORIGINALISM WOULD-- A LEGITIMATE SOURCE WOULD BE THINGS LIKE CONSTITUTIONAL DEBATES.

I WOULD SAY THAT VIEW YOU JUST ARTICULATED IS A COMMON ONE AMONG JUDGES, THE PUBLIC, AND EVEN IN THE ACADEMY, BUT I'M NOT SURE IT'S RIGHT.

I'M NOT SURE IT'S RIGHT.

IF ORIGINALISM STANDS FOR THE PROPOSITION THAT WE'RE BOUND BY THE ORIGINAL INTENTIONS OF THE FOUNDING FATHERS, NOTWITHSTANDING WHAT THEY ACTUALLY WROTE INTO LAW, THEN THERE'S CLEARLY A DIFFERENCE BETWEEN TEXTUALISM AND ORIGINALISM, BUT IF ORIGINALISM STANDS FOR THE PROPOSITION THAT WE'RE BOUND BY THE ORIGINAL MEANING OF THE WORDS, WELL, HOW DO WE FIGURE OUT THE ORIGINAL MEANINGS OF THE WORDS?

IT'S NOT JUST DICTIONARIES.

WORD ARE DEPLOYED FOR CERTAIN PURPOSES.

IT HELPS TO KNOW WHY THEY WERE WRITTEN.

IT HELPS TO KNOW THE INTENT OF THE FOUNDING FATHERS, AND, HONESTLY, I DON'T SEE A DIFFERENCE BETWEEN USING LEGISLATIVE HISTORY AND RESORTING TO MADISON'S CONVENTION NOTES IN PRINCIPLE.

IT'S JUST, IN PRACTICE, LEGISLATIVE HISTORY IS MUCH LESS RELIABLE, AND MAYBE MADISON'S NOTES, BY THE WAY, ARE ALSO NOT PARTICULARLY RELIABLE, SO I SEE THEM AS THE SAME.

YEAH.

IF IT SUGGESTS SOMETHING, THEN, OTHER THAT WINDS UP AS TEXT, LEGISLATIVE HISTORY COULD WELL BE MISLEADING.

WHAT IS THE PRACTICAL IMPACT OF THESE KINDS OF LABELS?

SO THE AREA IN WHICH I SEE THE CLEAREST DIFFERENCE-- ALTHOUGH WHAT I'M GONNA END UP SAYING IS THAT THIS IS NOT ACTUALLY AN AREA WHERE ORIGINALISM MAKES A DIFFERENCE AS AN INTERPRETIVE METHODOLOGY; IT'S MORE A QUESTION OF HOW WE INTERPRET A PARTICULAR CONSTITUTIONAL PROVISION-- BUT I THINK THE AREA WHERE YOU SEE THE STARKEST DIFFERENCE IS WITH THE CONSTITUTION'S EQUALITY GUARANTEES-- SO THE EQUAL-PROTECTION CLAUSE OF THE 14th AMENDMENT, THE DUE-PROCESS CLAUSE OF THE FIFTH AMENDMENT WHICH APPLIES TO THE FEDERAL GOVERNMENT-- BECAUSE OVER TIME, WE'VE SEEN A PROCESS WHEREBY--FIRST WITH RACE, THEN WITH SEX, MORE RECENTLY WITH SEXUAL ORIENTATION-- THERE'S A CONSISTENT PATTERN OF A SOCIAL MOVEMENT THAT LEADS TO A DIFFERENT UNDERSTANDING OF CONSTITUTIONAL REQUIREMENTS SO THAT IN, SAY, 1868 OR 1896, A CERTAIN KIND OF DISCRIMINATION IS SEEN AS NATURAL AND JUSTIFIED BECAUSE THE PEOPLE WHO ARE BEING DISCRIMINATED AGAINST ARE SEEN AS FUNDAMENTALLY DIFFERENT FROM THE REST OF US, AND THEN A SOCIAL MOVEMENT ARISES TO CHALLENGE THAT DISCRIMINATION, SAYING, BASICALLY, "WE'RE NOT SO DIFFERENT, "AND THE DIFFERENTIAL TREATMENT THAT YOU'RE INFLICTING ON US IS OPPRESSIVE AND UNJUSTIFIED," AND THEN AT SOME POINT IF THE SOCIAL MOVEMENT IS SUCCESSFUL ENOUGH, THE SUPREME COURT TENDS TO COME IN AND SORT OF RATIFY THAT VICTORY AND SAY, "YOU'RE RIGHT.

"THIS DISCRIMINATION IS ARBITRARY "OR PERHAPS IS UNJUSTIFIED, AND IT'S FORBIDDEN BY THE CONSTITUTION."

NOW, THE CARICATURED VERSIONS OF ORIGINALISM AND LIVING CONSTITUTIONISM THAT I WAS DESCRIBING BEFORE WILL TELL YOU, IF YOU'RE AN ORIGINALIST, YOU MUST SAY, "IF THIS WAS ALLOWED IN 1868, IT'S STILL PERMISSIBLE."

I USE AN ILLUSTRATION SOMETIMES, "WHAT IF THE CONSTITUTION TOLD SENATORS TO WEAR THE LATEST FASHION?"

OBVIOUSLY, IT WOULD BE TELLING THEM TO DO DIFFERENT THINGS IN 1886 AND IN 2020, SO YOU COULD HAVE A CONSTITUTIONAL PROVISION LIKE THAT.

YOU COULD HAVE A CONSTITUTIONAL PROVISION THAT SAYS, "IF A MAJORITY OF THE STATES "HAVE BANNED SOME PRACTICE, IT BECOMES UNCONSTITUTIONAL."

ALL WE NEED TO DO TO RECONCILE THE BIGGEST APPARENT CONFLICTS BETWEEN ORIGINALISM AND THE LIVING CONSTITUTIONALISM, I THINK, IS TO UNDERSTAND YOU CAN HAVE CONSTITUTIONAL PROVISIONS LIKE THAT.

RIGHT.

WURMAN: CAN I JUMP IN HERE?

YEAH, ILAN.

GO AHEAD, ILAN.

I DO THINK MODERN EQUAL-PROTECTION [INDISTINCT] IS INCONSISTENT WITH ORIGINAL MEANING BUT ONLY BECAUSE WE'RE OPERATING UNDER THE WRONG CLAUSE.

I DON'T KNOW IF I'M ALLOWED TO DO THIS ON THE SHOW, BUT I'LL PLUG MY NEW BOOK CALLED "THE SECOND FOUNDING: AN INTRODUCTION TO THE 14th AMENDMENT," WHICH BASICALLY ARGUES THAT THE PRIVILEGES OR IMMUNITIES CLAUSE WAS INTENDED TO DO MOST OF THE EQUAL-PROTECTION WORK THAT IS DONE UNDER THE EQUAL-PROTECTION CLAUSE.

THE PRIVILEGES OR IMMUNITIES CLAUSE SAYS, "NO STATE SHALL MAKE OR ENFORCE ANY LAW "WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES," AND WHAT I ARGUE IN THE BOOK IS THAT THESE PRIVILEGES AND IMMUNITIES WERE CIVIL RIGHTS UNDER STATE LAW-- LIKE PUBLIC EDUCATION, LIKE THE RIGHT TO MARRY AND THINGS LIKE THAT-- AND AN ABRIDGEMENT WAS AN IRRATIONAL DISCRIMINATION, AND SO IT-- EISENHOWER: IT HAD TO DO WITH CONFLICT OF LAWS, THOUGH, TO SOME EXTENT.

WASN'T IT APPLIED THAT WAY, PRIVILEGES AND IMMUNITIES HAVING TO DO WHETHER A CONTRACT IN ONE STATE IS VALID IN ANOTHER?

SO UNDER THE ORIGINAL CONSTITUTION, THERE'S A PRIVILEGES AND IMMUNITIES CLAUSE.

THIS IS CALLED THE COMITY CLAUSE OF ARTICLE IV, WHICH IS, "THE CITIZENS OF EACH STATE SHALL BE ENTITLED "TO ALL PRIVILEGES AND IMMUNITIES OF THE CITIZENS OF THE SEVERAL STATES-- UH, IN THE SEVERAL STATES," WHICH BASICALLY MEANT THAT, YOU KNOW, A CITIZEN IN MASSACHUSETTS TRAVELING IN GEORGIA, IN GEORGIA, GEORGIA WASN'T GOING TO TREAT HIM AS AN ALIEN, WAS GONNA TREAT HIM AS GEORGIA TREATS ITS OWN CITIZEN.

WHAT I ARGUE IN THE BOOK--AND SOME HAVE ARGUED THIS BEFORE, THOUGH I MAKE A MORE COMPLETE AND COMPREHENSIVE ARGUMENT-- IS THAT THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE 14th AMENDMENT WAS INTENDED TO DO FOR INTRASTATE DISCRIMINATION WHAT THE COMITY CLAUSE DID FOR INTERSTATE DISCRIMINATION, AND I THINK THAT'S HOW YOU GET BROWN V. BOARD.

I THINK THAT'S HOW YOU GET SEX EQUALITY AND MAYBE EVEN OBERGEFELL, BUT TO GO BACK TO YOUR INITIAL QUESTION, I THINK THE KEY DIFFERENCE BETWEEN ORIGINALISM AND LIVING CONSTITUTIONALISM WILL BE UNDER SUBSTANTIVE DUE-PROCESS DOCTRINE BECAUSE, ALTHOUGH I THINK A LOT OF EQUAL-PROTECTION DOCTRINE TODAY CAN BE REIMAGINED UNDER THE PRIVILEGES OR IMMUNITIES CLAUSE-- I MEAN, IT WOULD COME OUT THE SAME WAY UNDER THE PRIVILEGES OR IMMUNITIES CLAUSE-- SUBSTANTIVE DUE PROCESS I JUST DON'T THINK IS A THING UNDER THE ORIGINAL MEANING OF THE CONSTITUTION, AND THAT CREATES SOME INTERESTING DIFFERENCES IN DOCTRINE.

RIGHT, BUT CONSISTENT WITH WHAT YOU'RE SAYING-- THAT THERE IS A CONTINUITY, PERHAPS-- THE 14th AMENDMENT, THEN, TO SOME DEGREE, WOULD BE A RESTATEMENT OF SOMETHING THAT EXISTED, AT LEAST WE THINK EXISTED, IN THE CONSTITUTION.

IS IT POSSIBLE TO SAY THAT, SAY, PLESSY V. FERGUSON IN 1896 WAS JUST SIMPLY A WRONG DECISION?

WURMAN: I THINK YOU-- HOW ABOUT, WHAT IS THE STATUS OF DRED SCOTT, BY THE WAY?

I SUPPOSE THAT WAS RESOLVED BY THE 13th AMENDMENT TO THE CONSTITUTION, SO THAT'S MOOT, BUT-- WELL, I THINK IT WAS RESOLVED BY THE 14th AMENDMENT BECAUSE THERE'S A CITIZENSHIP CLAUSE IN THE 14th AMENDMENT WHICH DECLARES, YOU KNOW, FREE BLACKS-- ALL BLACKS AT THAT POINT WHO HAD BEEN FREED UNDER THE 13th AMENDMENT, DECLARED THEM TO BE CITIZENS OF THE UNITED STATES, WHICH IS WHAT, YOU KNOW, THE DRED SCOTT CASE SAID, THEY WEREN'T CITIZENS OF THE UNITED STATES ENTITLED TO THE PRIVILEGES AND IMMUNITIES IN THE U.S. CONSTITUTION-- INCLUDING THE RIGHT TO SUE AND DIVERSITY, THE RIGHTS UNDER THE COMITY CLAUSE, AND SO ON-- AND DRED SCOTT IS OFTEN THOUGHT TO BE THIS ORIGINALIST DECISION WHERE CHIEF JUSTICE TANEY WAS SIMPLY GIVING EFFECT TO THE ORIGINAL INTENTIONS OF THE FOUNDERS, BUT I THINK HIS WAS A WILLFUL OPINION.

IT WAS NOT ACTUALLY A PROPERLY ORIGINALIST OPINION.

JUSTICE BENJAMIN CURTIS ABSOLUTELY EVISCERATED CHIEF JUSTICE TANEY'S ARGUMENTS IN DISSENT ON THE ORIGINAL MEANING, ON THE ORIGINAL MEANING.

BASICALLY, JUSTICE CURTIS SAID, "LOOK.

"FREE BLACKS WERE CITIZENS OF 5 STATES, OF 5 STATES, "BEFORE THE CONSTITUTION OF THE UNITED STATES "WAS ADOPTED.

"THE CONSTITUTION OF THE UNITED STATES TOOK THEM AS CITIZENS, FOUND THEM AS CITIZENS."

IT DIDN'T CHANGE THEIR STATUS AS CITIZENS.

NOTHING IN THE CONSTITUTION DID THAT.

CONGRESS' NATURALIZATION POWER IS THE POWER TO MAKE NEW CITIZENS, NOT TO TAKE AWAY CITIZENSHIP FROM, YOU KNOW, THE FREE BLACKS WHO HAD BEEN CITIZENS, SO, YOU KNOW, IT'S OFTEN THOUGHT TO BE THIS EVIL ORIGINALIST OPINION, BUT I THINK IT WAS A VERY BAD ORIGINALIST OPINION, AND JUSTICE CURTIS' DISSENT WAS ABSOLUTELY RIGHT AND WAS ALSO AN ORIGINALIST OPINION.

WELL, THAT'S VERY REASSURING.

I THINK PEOPLE AT SOME LEVEL HAVE, I WOULD SAY, LITTLE-C CONSERVATIVE INSTINCTS ON THINGS LIKE THIS.

THEY DO NOT WANT TO BELIEVE THAT EVERY TIME A NEW JUSTICE IS APPOINTED TO THE COURT THAT FUNDAMENTAL LAW IS GONNA CHANGE, THAT THERE IS A SORT OF CONTINUITY.

FOR MOST OF AMERICAN HISTORY-- THIS IS PUT TO BOTH OF YOU-- AMERICAN CHILDREN HAVE PRAYED IN SCHOOLS, AND A HOST OF BEHAVIORS THOUGHT TO HAVE BEEN MORAL CONTENT AND CONSEQUENCES WERE REGULATED BY THE LAWS OF THE STATES, FROM THE LEGAL STATUS OF ABORTION TO CHOICES ABOUT FORMS OF ASSOCIATION AND ECONOMIC ACTIVITIES TO THE LEGAL STATUS OF VARIOUS ASPECTS OF SEXUALITY.

THEN IN THE SPACE OF A GENERATION, THE SUPREME COURT OF THE UNITED STATES HAS REMOVED THIS DECISION-MAKING POWER FROM STATE AND LOCAL OFFICIALS AND THE POLITICAL MAJORITIES WHO ELECTED THEM... AND THE POWER TO REGULATE THESE AREAS OF LIFE AND SAID INSTEAD THAT THE CONSTITUTION OF THE UNITED STATES MUST BE READ TO REQUIRE CERTAIN OUTCOMES ON THESE QUESTIONS AND, THEREFORE, LIMIT THE POWER OF GOVERNMENT.

IS THERE ANY-- WHAT KIND OF VITALITY IS THERE IN THE FEDERALIST PRINCIPLE, THE IDEA THAT STATES DO RESERVE SOVEREIGNTY AND A CERTAIN AMOUNT OF DISCRETION?

IS THIS EVER-EXPANDING SOCIAL POWER OF THE COURT SOMETHING THAT'S RENDERING THAT MOOT, OR DO YOU SEE A NATURAL LIMIT TO THAT?

HOW IMPORTANT IS FEDERALISM IN THIS COUNTRY, THE IDEA THAT STATES ARE INDIVIDUAL LABORATORIES, THAT THEY CAN RUN THEMSELVES, THAT THEY RETAIN ASPECTS OF SOVEREIGN COMMUNITIES AND SO FORTH?

AS CONSTITUTIONAL LEGAL SCHOLARS, DO YOU ALL SEE ANY RESILIENCE OF THAT IDEA OR ANY RELEVANCE TO IT IN CONTEMPORARY AMERICA?

I WOULD SAY THAT THERE IS STILL SOME RESILIENCE TO THE IDEA OF FEDERALISM, AND STATES RIGHTS OR STATE CONTROL CAN BE PROTECTED IN ONE OF TWO WAYS.

FIRST, THERE IS THIS IDEA OF ENUMERATION OF POWERS, THAT THE NATIONAL GOVERNMENT CAN ONLY DO SO MANY THINGS IN A MATTER OF POLICY, BUT THEN ON THE OTHER END, WE HAVE THE BILL OF RIGHTS, AND I THINK TODAY THE IDEA IS, YOU KNOW, THE BILL OF RIGHTS IS INCORPORATED AGAINST THE STATES.

IT ESTABLISHES THIS FUNDAMENTAL NATIONAL MINIMUM OF RIGHTS AND THAT THE STATES SHOULDN'T BE ALLOWED TO INFRINGE ANY OF THOSE RIGHTS AT ALL, BUT THAT STILL LEAVES A WHOLE HOST OF GOVERNMENTS [INDISTINCT] POLICY-- WHETHER IT BE, YOU KNOW, HEALTH CARE OR WHAT HAVE YOU, EDUCATION POLICY-- WHERE IT'S A MATTER OF POLICY.

IT'S NOT A MATTER OF THESE FUNDAMENTAL RIGHTS IN THE BILL OF RIGHTS, AND IF CONGRESS' POWER WERE LIMITED TO A STRICT ENUMERATION, THEN THE STATES WOULD STILL HAVE THIS VITALITY IN THAT AREA OF SOCIAL ACTION, OF SOCIAL POLICY, AND I THINK THE MODERN SUPREME COURT IS CERTAINLY INTERESTED IN MAINTAINING VITALITY TO THE IDEA OF FEDERALISM IF FOR NO OTHER REASON, WE SAW THE NFIB V. SEBELIUS CASE WHERE, YES, THE AFFORDABLE CARE ACT WAS UPHELD AS A TAX, BUT THEY LIMITED FOR THE FIRST TIME IN A LONG TIME THE SCOPE OF THE COMMERCE POWER, AND I THINK WE HAVE MORE JUSTICES FOR THAT POSITION.

THE REALLY INTERESTING QUESTION ACTUALLY IS WHETHER STATES SHOULD BE GIVEN MORE VITALITY TO EXPERIMENT WHEN IT COMES TO RIGHTS, NOT JUST SOCIAL POLICY, RIGHTS LIKE IN THE BILL OF RIGHTS.

DO YOU NEED TO SUPPRESS EVIDENCE?

DO YOU NEED TO ALLOW HANDGUNS, RIGHT?

I MEAN, IN MY NEW BOOK ON THE 14th AMENDMENT, I THINK I'M THE ONLY ORIGINALIST SCHOLAR UNDER THE AGE, PROBABLY, OF 70 NOW WHO THINKS THAT INCORPORATION OF THE BILL OF RIGHTS AGAINST THE STATES IS STILL ACTUALLY INCORRECT AS A MATTER OF ORIGINALISM.

I THINK THE PRIVILEGES OR IMMUNITY CLAUSE IS AN ANTIDISCRIMINATION PROVISION, WHICH MEANS CALIFORNIA, IF IT WANTS, CAN BAN HANDGUNS.

WHAT IT CAN'T SAYS IS, ONLY ASIANS CAN'T HAVE HANDGUNS, RIGHT?

IT'S A NONDISCRIMINATION PRINCIPLE, AND THERE WOULD BE SOMETHING IN IT, BY THE WAY, FOR LIBERALS AND CONSERVATIVES, YOU KNOW-- GUN RIGHTS, CITIZENS UNITED FOR THE LIBERALS AND FOR THE CONSERVATIVES, MAYBE SOME CRIMINAL JUSTICE, YOU KNOW, SUPPRESSION OF EVIDENCE, MIRANDA WARNINGS, THINGS LIKE THAT-- SO I DO WONDER IF THE WORLD WOULD BE MORE INTERESTING... WELL, AND THE WORLD HAS GOTTEN VERY INTERESTING BECAUSE WE'VE SEEN, WELL, THINGS LIKE SANCTUARY CITIES AND, I WOULD SAY, DE FACTO DEFIANCE OF ROE IN A LOT OF PLACES, A SORT OF BALKANIZATION OF ENFORCEMENT OF THE LAW AS A PRACTICAL MATTER.

DO THOSE TRENDS IN ANY WAY CONCERN EITHER OF YOU, THINGS LIKE, AS I SAY, RED-STATE NULLIFICATION OF CERTAIN SORT OF BLUE-STATE PRACTICES AND BLUE-STATE NULLIFICATION OF CERTAIN RED-STATE CONCERNS AND SO FORTH?

HAS THAT APPEARED IN SUPREME COURT DECISIONS YET AS ANY KIND OF CONCERN?

DOES IT CONCERN YOU, KERMIT?

YEAH.

I THINK THAT YOU SEE THAT AS A CONCERN.

MAYBE YOU SEE IT MORE OFTEN IN WHAT THE COURT DOESN'T DO THAN WHAT IT DOES, SO TALKING ABOUT FEDERALISM AND CONTROVERSIAL AREAS OF THE COURT IMPOSING A NATIONAL MANDATE ON THE STATES, I THINK ONE OF THE MOST CONTROVERSIAL IS SCHOOL PRAYER AND WHAT THE SUPREME COURT HAS DONE WITH THE ESTABLISHMENT CLAUSE AND THE WAYS IN WHICH IT HAS PREVENTED STATES FROM ENDORSING OR PROMOTING RELIGION, AND WHAT YOU SEE THERE, I THINK, IS, THE SUPREME COURT ENCOUNTERED A LOT OF RESISTANCE, AND, UNLIKE ITS RACE-EQUALITY JURISPRUDENCE-- WHERE THE REST OF THE FEDERAL GOVERNMENT WAS BEHIND IT AND YOU GOT THE 101st AIRBORNE SENT TO LITTLE ROCK TO MAKE SURE THAT THE SCHOOLS WERE, IN FACT, DESEGREGATED-- THERE ISN'T THE SAME KIND OF WILL ON THE PART OF THE NATIONAL GOVERNMENT OR EVEN, I THINK, THE COURT TO PUSH TO REALLY ENFORCE THIS ESTABLISHMENT CLAUSE JURISPRUDENCE UNTIL YOU'VE ACTUALLY SEEN THE COURT BACK DOWN FROM SOME OF THE IMPLICATIONS, I THINK.

WHEN THE COURT WAS URGED TO CONSIDER THE USE OF THE PHRASE "UNDER GOD" IN THE PLEDGE OF ALLEGIANCE, I THINK IF YOU READ THE COURT'S DECISIONS ABOUT THE ESTABLISHMENT CLAUSE, THERE'S A VERY STRONG ARGUMENT THAT IS UNCONSTITUTIONAL, BUT I DON'T THINK THAT THE COUNTRY WOULD ACCEPT THAT.

I DON'T THINK THAT'S A DECISION THAT WOULD SUCCEED.

JUST TO WRAP UP, DO EITHER OF YOU SEE ANY LOOMING ISSUES BETWEEN, I WOULD SAY-- OR LOOMING CONSTITUTIONAL ISSUES THAT HAD TO DO WITH THINGS THAT WE'VE BEEN READING ABOUT, LIKE SUPPRESSION OF FREE SPEECH AND BIG TECH.

SORT OF ASSUMING GUARDIANSHIP OVER SPEECH AND THINGS LIKE THAT WHICH, TECHNICALLY, THEY'RE ALLOWED TO DO SINCE THEY'RE PRIVATE ENTITIES?

DO YOU SEE A SORT OF JURISPRUDENCE LIVING, GROWING INTO AREAS LIKE THAT?

LET ME-- IF I CAN JUST TAKE A STAB AT THAT FIRST, BY THE WAY, ONE AREA THAT'S LOOMING, I THINK, IS ADMINISTRATIVE LAW, THE ADMINISTRATIVE STATE, THE CONSTITUTIONALITY OF THE ADMINISTRATIVE STATE.

I THINK THERE'S GONNA BE A LOT OF INTERESTING THINGS GOING ON THERE.

ON BIG TECH., I MEAN, THERE USED TO BE SOME OLDER FIRST-AMENDMENT DOCTRINE THAT COULD TREAT PRIVATE ENTITIES, YOU KNOW, LIKE IN A MALL OR SOMETHING LIKE THAT AS PUBLIC FORA, AND MAYBE THAT WOULD APPLY HERE, BUT THE REALITY IS-- YOU MENTIONED THE CIVIL RIGHTS ACT OF 1964-- NOTHING STOPS CONGRESS FROM REGULATING BIG TECH.

AND ORDERING THEM NOT TO DISCRIMINATE ON THE BASIS-- YOU KNOW, THAT'S JUST A REGULATION OF COMMERCE, RIGHT, AND SO CONGRESS CAN DO IT, AND SO IF I WERE THE SUPREME COURT, I WOULD BE WARY OF MORPHING FIRST-AMENDMENT LAW TO MEET THE SITUATION WHEN IT'S WITHIN CONGRESS' POWER TO HANDLE IT... EISENHOWER: GOT IT.

GOT IT.

IN OTHER WORDS-- SO THAT'D BE MY INITIAL THOUGHT.

YEAH.

IN OTHER WORDS, IT WOULD'VE BEEN A MISTAKE FOR THE COURT IN '64 TO ORDER PUBLIC ACCOMMODATIONS.

IT WAS SOMETHING THAT THE CONGRESS COULD DO UNDER ITS COMMERCE POWER, AND THE COURT SHOULD AWAIT THAT, BUT, GENTLEMEN, WE TRULY APPRECIATE HAVING YOU ON "THE WHOLE TRUTH" AND TO DISCUSS ISSUES WHICH ARE GOING TO BE VERY CONTENTIOUS, I THINK, OVER THE NEXT SEVERAL YEARS.

WE DO-- WE'VE HAD VERY-- QUITE A FEW PRETTY SPECTACULAR CONFIRMATION BATTLES RECENTLY, WHICH INDICATES THAT THERE IS, I WOULD SAY, DISSATISFACTION.

THERE'S A SENSE THAT THINGS ARE A LITTLE BIT OUT OF BALANCE AND THERE ARE FAIRNESS QUESTIONS AND THAT COURT ISSUES ARE REALLY GOING TO BE COMING FRONT AND CENTER, AND WE APPRECIATE YOUR VIEWS ON THIS.

THANK YOU BOTH VERY MUCH FOR YOUR TIME AND YOUR CONTRIBUTIONS TODAY.

THANK YOU VERY MUCH, SO THERE YOU HAVE IT, A GENERATIONS-LONG AND GENERATIONS-OLD DEBATE ABOUT WHAT THE AMERICAN CONSTITUTION IS AND HOW IT SHOULD BE APPLIED TO PRESENT AND FUTURE QUESTIONS ARISING IN THE REAL LIVES OF AMERICANS.

AS ALWAYS, WE LEAVE IT TO YOU TO SORT THROUGH THE DIFFERENT POINTS OF VIEW YOU'VE HEARD HERE AND DECIDE FOR YOURSELF THE WHOLE TRUTH.

I'M DAVID EISENHOWER.

THANKS FOR WATCHING.

ANNOUNCER: THIS EPISODE OF "THE WHOLE TRUTH" WAS MADE POSSIBLE BY... WILLIAM AND SUSAN DORAN, UGI CORPORATION, NJM INSURANCE, CNX RESOURCES CORPORATION, RAZA BOKHARI, JOHN AND PATRICIA WALSH, THE CHARLES KOCH INSTITUTE.

[THEME MUSIC PLAYING]