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tv   Federal Judges Discuss the Bill of Rights in Modern Times  CSPAN  December 31, 2016 9:39pm-11:21pm EST

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that is important to you. does everybody feel that? how many of you feel that? sometimes it is hard to stand for a long time. the statue of liberty has been standing since 1886. do not complain. you have strength in your legs. now, feel the strength in your arms. when there is work to do and you use your arms to get to work done, that strength is there. stand up straight. feel the strength you have in your backbone. being a leader is tough and sometimes you have to stand up and make tough decisions. but you have that strength in your backbone. look how straight she is standing. since been doing this 1886. the strength you have here. the strength of mental toughness. when things get tough, that is when it is tough as to be a leader. and the strength you have inside of you. these are all of the different strengths and this is why your foundation is so important. you have the foundation. now, hold up your light.
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there you go. a room full of statues of liberty. i think this would be ronald reagan's dream. sometimes, when you are leading or working on something you believe in with all of your heart, it is tough because darkness happens. you hear the word no and things you want don't happen. but you have to hold onto your light. be strong and hold up the light. sometimes, you do not have that light within you. it feels like it has gone out. so you have to look to the light to lead you out of darkness. and sometimes, you will have to be that light for other people. this is what i want you to do. make a pledge to yourself and the other women in this room, some days you will need that light and they will be there for you. some days you will be that light. now, i want you to reach out and light someone else's torch. be that light for someone else. there you go.
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i love it. i love it. sandra day o'connor said that one of the things that she really loved is to find work worth doing and work hard at it. that is what i want you to do. find work that is worth doing. that is worth your time, your investment, your energy and strength. and work hard at it. today, we are going to work hard on what we are doing. thank you very much and have a wonderful day. [applause] >> next, three federal judges on washington journal. coming up sunday morning, university of maryland economics professor discusses the current state of the economy as 2016 comes to a close. his predictions for the year ahead. correspondentcy
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for "national journal" will preview the upcoming congressional session here at and michael o'hanlon talks about foreign policy and hotspots in the year ahead. be sure to watch "washington journal," live at 7:00 a.m. sunday morning. join the discussion. sunday, "in depth" will talk about the presidency of barack obama. we are your questions during the program. our panelists include april ryan. princeton university glaude and davidclou marinus. eastern onfrom 3:00
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c-span two. next, three federal judges discuss the history of the bill of rights and its impact on modern-day issues that involve technology, freedom of speech and same-sex marriage. from the national archives in washington, d.c., this is 1.5 hours. >> welcome to the theater at the national archives. i'm the archivist of the united states and it is a pleasure to welcome you. whether you are joining us for oror watching us on youtube with our friends on c-span2, welcome. since franklin roosevelt first
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proclaimed it, this day has served as a reminder to not take for granted this document. our partner for today's program is a constitutional sources project. before we being -- "i want to wo upcoming events. january 17th, we will talk about eisenhower's farewell address and then on the 18th and 19th, we will focus on historical inaugural events. about this ande all of our events, you can visit our website or find calendar --
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thecalendar copies in lobby. another way to become more involved is to become a member of the national archives foundation. the foundation supports education and outreach activities and there are applications for membership in the lobby. constitutionates is the oldest written national constitution still enforced. one of the reasons why it has endured is allowance the framers made for peacefully amending it. while the actions of the first pass theongress was to bill of rights, it was necessary for james madison to expressly declare the rights of mankind secured under this constitution. during this 225th anniversary year, the national archives
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together a nationwide program of events and exhibits to celebrate and examine the bill of rights. we have posted several discussions like tonight, relating to constitutional rights, we have put on several conversations on rights and justice and we have created several exhibits and educational resources. you have the opportunity to see the special exhibit upstairs. the washington, d.c. area you may see the companion traveling exhibit. it is currently in dallas, texas and will soon be in houston. the centerpiece of all of this activity is the 225-year-old parchment document itself, the original bill of rights in the rotunda. a bill of rights day in 1852 that all three charters, the declaration of independence, the constitution and the bill of rights were first displayed
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together in the root and up -- rotunda. declared harry truman that "in my opinion, the bill of rights is the most important document in the united states. it protects the citizens against the government. he also warned against letting the documents become no more glassummies in their cases. our distinguished panel of judges here tonight know that the bill of rights has meaning for us everyday. to introduce our panelist, i will turn you over to julie, the executive director of our partner, a constitutional sources project. [applause]
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julie: thank you. good evening. servinghe privilege as as the executive director of the constitutional forces project. we are an organization dedicated to educating citizens of all ages about the history of the united states constitution. let me begin by thanking the archivist of the united states for the introductory remarks and the archives for hosting this special event celebrating the 200 25th anniversary of the ratification of the bill of rights on the summer 15, 1791. the bill of rights articulates our national values and ideals, including the guarantee of freedom of speech, religion, the press, the right to assemble, a
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speedy trial by jury, protection against double jeopardy and unreasonable searches and seizures, and the right to bear arms. the bill of rights strikes a personal cord the way the declaration of independence does and the structural provisions of the constitution does not. too few americans know the history of the bill of rights. a survey from last year found s thinke in 10 american the bill of rights includes the right to own a pet. it does not. for the record. so we thought it would be useful to provide our guests a very brief history of the bill of rights in the 18th century, when it was drafted and ratified. if you bear with me, i will give with you the legislative history of the bill of rights in two minutes.
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some might be surprised to learn that when the constitution was -- wasin september 18 signed, it did not include a bill of rights. proposed it,ason it was unanimously rejected. that state declaration said the federal bill of rights was necessary or even dangerous. while the bill of rights became a rallying call for s, they were also interested in proposing and minutes that would alter the structure and power of the new federal government. federalists like a james madison, who we call the father of the constitution, he is also the father of the bill of rights, to him it was unacceptable. he pushed the first congress to pass the bill of rights.
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once the constitution was adopted, newly elected representative james madison aged congress to reject document that would change the constitution and instead adopt a byl of rights as suggested the ratifying conventions in virginia and new york. by 1788, madison had also come to see the broader value of the bill of rights. he wrote to thomas jefferson, saying that the political truth ,eclared in that solemn manner as they become incorporated with the national sentiment, counteract the impulse of interest and passion. madison include -- intended to include it inside the body of the constitution. this was ultimately rejected by congress. it onuse instead phone seven supplements to the constitution, in that went to the senate for consideration. the senate reduced it to 12.
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those were sent to the states for ratification, and the anniversary we are celebrating is when virgin you on -- virginia became the last of the states to approve the 10 amendments we call the bill of rights. if you are interested in learning more about the history of the bill of rights, i invite you to visit the library and times" the "washington availableat is outside in on the "washington times" website. i invite our distinguished panelists to the states. thank you and happy bill of rights day. [applause]
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>> thanks for coming down on one of the coldest bill of rights days in recent memory for our discussion on the anniversary of the ratification. thank them for the introduction. and as someone who covers the supreme court and the appellate courts as they interpret the bill of rights and other provisions, it is a great esteemed to have three circuit judges talk about the first 10 amendments of the constitution and what they mean. they are on the front lines of figuring out what those words mean. they are not always self-explanatory.
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confront hardy problems about what those rights mean in the 21st century and will be confronting them in the years ahead. thank you so much for coming out. expect you to prejudge any cases but i'm sure our audience here and on c-span will appreciate how to think about the bill of rights and think about these questions and how to imagine what issues will arise in the future and the different ways we might have of applying these, i will not say engine, but quite old words in a digital era. so thanks again for coming. we will have questions later on, but we will try to have a conversational discussion about the bill of rights. i thought as a start, the white house issues a lot of proclamations and preparatory announcements, and one of those
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was in about yesterday, it was the president's bill of rights day proclamation. i don't know how different it is from those issued every year because i have not read them, but i thought we might look at what president obama had to say about it. "asis message, he said originally created, the bill of rights safeguarded personal liberties and safeguarded justice, but not for all. followed,rs that courageous americans sacrificed to expand this to more people to go --goes on to talk about a about the way these rights were expanded. these experiences remind us that our freedom is intertwined with the freedom of others. can read theyou
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whole thing on the white house website. the progress was never inevitable but as long as people are willing to fight for justice, we can swing open more doors of opportunity. to, iort of leads us thinking about the bill of rights, is it static and frozen in the year 1791 or is it something that is applied differently, or evolves? or is there some way of reconciling the original language of the bill of rights and circumstances that we see today that are perhaps a little different than perhaps even very wise people like james madison might have foreseen back in the 18th century? what are we talking about? are these words that only have relevance from their original conception or do they take on
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different meanings today? i felt we could throw it open. judge griffith, do you have seniority? , then with that great distinction comes responsibility. >> it is an honor to be here, and i think the national archives. it turns out the question you asked liza the heart of a rather vigorous debate -- live at the heart of a rather vigorous debate that has taken place since the framing of the constitution. the views i have developed over time are that, you use the phrase that could be pejorative, you said are the rights of the bill of rights frozen in time? i am of the view that there were
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certain values expressed at the time of the founding them at the time of the bill of rights, and they did express a definite view of the relationship between the individual and the state with respect to certain activities and that it is our responsibility as judges to enforce those. but not to change them. the job that we are about is not determining the merits of the of what is own light right and just and equitable, but by the law, as was ratified by the people of the united states. so i'm of the school that if there are going to be changes made to the law, to the bill of rights, there is a method to do that, and that is the amendment process.
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it is not appropriate for elected judges who are for the most part politically unaccountable to make those changes. it,e sure, we will get to the application of those principles to new circumstances is necessary. but i view our responsibility as to identify the value that is expressed in the law, in this case, in the amendments, the bill of rights, to identify that and applied neutrally to the dispute at hand. ess: anybody disagree? >> i heard a lot that i agree with. archives ofank the my colleagues for this opportunity and i want to salute those of you out there for coming out on approval night. the bill of rights -- coming out
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on a brutal night. rights did not spring from madison's head. were a lot >> many of the rights that we see in the bill of rights had a very healthy and robust history, even as of 1791. and they are interesting, aren't they, and that they contain both prescriptions and proscriptions aimed at government and government's relations to the individual. i agree with what has been said. changed and the rights have not changed, but the right have changed. the technology has brought about
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many changes. and subsequent amendment have brought about many changes and the supreme court decision-making has changed. and all that informs modern-day interpretation of how one applies the bill of rights and the pragmatic reality of judge decision-making here in the 21st century. that should not be remarkable, it seems to me. >> first of all, thank you. i don't want to be repetitive, but i don't want to be unfaithful or this opportunity. things we need to keep in mind is in a day and age when we are used to laws being weighed by the pound in their links and size, the bill of rights is a really succinct and spartan document. these 10eally fit
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foundational principles on one side of one page. the words are very seceding. succient.. -- congress shall not make a law appointing an established religion. time,words are frozen in they are written into our constitutional order and our constitutional documents. those are the words and we don't change those words except five process of constitutional amendment. but by applying those words to the varying factual circumstances and disputes of that confront the country over the course of 200 years is what is challenging. thinking of it as
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something as frozen and immobile, i think of it as, the phrase, that is associated with robert frost and that is, good fences make good neighbors. i think in a political structure, and a political structure, a division of power like we have is actually apt. and what the bill of rights is as a whole constitution is this hugely important than the nation what remains for the people and those fences are them andt policing finding exactly where that fence fall in new circumstances that are changing as the country changes is the challenging task of that we face. >> as the parent of a five-year-old girl, i would say the word frozen has a very positive context for some of the
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younger girls and not just girls. the late justice scalia , the bill of rights is more about individual rights and what rights and individual has to protect yourself from the government. well, and youd as noted, the supreme court and the lower courts have applied those words over the centuries and tried to give them specific application as guidance to police and individuals and what do they mean in these individual circumstances. how far are we? is there an annotated bill of you could say based on
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traditional interpretations that answers many of the questions that might arise under it or is there still a great unknown related to of those terse but eloquent words need? 12, to keep us employed, it how often i said to hollings, i can't believe this hasn't been answered by now and nces is because of the fe are written in the constitution, but he nature of the country grows and the nature of government changes. new questions arise as technology comes along and you wonder what is the reasonable search of a stagecoach versus
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the reasonable searcof technology? these issues and do keep changing and coming up in the form. we think about how the constitution applies to enemy combatant contain is land rented the united they can a foreign country. it hasn't been, answered and when it came up it had to be. there are new applications that arise all the time. >> the first answer we gave was unacceptable on the supreme court. >> as he said, we are here to rewrite the constitution. i don't think any of us want to do that.
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i don't want to live in a country where judges get to rewrite the constitution at liberty. like thatntry's around the world and that is not what we want to be. on the question of whether all the answers are in, of course, the answer is, absolutely not. it is remarkable how much has not been decided. and it is equally phenomenal how we have not thought of so many questions yet. when i teach law school, i often point out with emphasis that it that thentil 1976 supreme court decided, do you need an arrest warrant to arrest a person in a public place. 14th -- youink the think the fourth amendment and
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200 years of criminal adjudication, that if she would've been presented before 1976. another example under the fourth amendment, do you need an arrest warrant to make a routine arrest in a person's home? the supreme court said yes in the 1980's. you can understand why law students at the time would think , surely the supreme court has got around to answering that question? there are many obvious questions that we can anticipate, that so many that we can't possibly anticipate that are surely, if not yet in the pipeline, are on their way to the courts. >> and i have my theory for why that is taking place. time where there is at this a vast expansion of the powers of government. the bill of rights is supposed
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to help regulate the interaction between the government and individual liberty and as government power has increased significantly over the last 40, 50, 60 years, those issues come up more and more. it is an ever present challenge. it is not frozen in time. these are not dusty old concept by people wearing three quarters have. we try to figure out what these
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rights mean in a modern setting when the government has such a vast power to come into every note and cranny of our lives. greatge griffin makes a point. i will remind us how chief justice reince quest made it a key part of his address to the , it was always his end of the year message to redo to kate crimes. >> there is another thing and it is also monumental changes that happened over time and to whom the bill of rights applies or to whom it protects as originally anniversarywas, the -- it applied its limitations on the federal government on your
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desk only, not the states. and who the people were was a much narrower bunch than it has come to be over time where, you know, both the civil war, power of women and as our society has grown, the number of people and the understanding of its protections and its application after the civil war, most of its provisions to the states. and so the, it's a bit younger document in that sense. not chronologically, but in the breadth and scope of its application than i think a lot of people understand up front. and i guess the last thing i would say is it's not only the government changes, but i think there must be something about human nature and how we interact with each other because, you know, the ten commandments have been around way longer, and people still fight about that equally succinct document, what it says and what it means and how it applies to their daily lives. as our interactions change, we just keep debating over how documents operate in that context.
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>> just a little historical note, you know, there's many communities around the country you can see a ten commandments monolith in front of a public building or elsewhere. it actually was, believe it or not, a marketing campaign for the movie, and we wrote about this. there was a, that the fox studios and the fraternal order of eagles had a great marketing thing where stars from the picture went and unveiled these monoliths around the country. so there's an interesting story there. but that'll be on another night at the archives -- >> like the supreme court cases. >> that's exactly right. involving the first amendment, which we'll get back to. >> can i -- i think something that's worth commenting on has just to occurred in our, in our agreement about something that's very fundamental. so we began by saying we all agree that the role of a judge is to understand what the amendment means and to apply it dispassionately. we all have different backgrounds, we're appointed by different presidents, and that's
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a view that we all share. that's not a view that is shared universally. there are many in the academy and there have been times in our nation's past where some judges took a very different thought that the provisions of the constitution were an invitation to judges to construct their own vision of fairness or justice. and that's just not a view that, at least in my experience, that reigns at least on my court or the courts of appeals. and i think it's really important for the american people to know that. the judiciary has, battles over the judiciary are high hi political. but in -- are highly political. but in my experience, 11 years on the d.c. circuit, this is the view of the judges regardless of the president who appointed them. as justice kagan said at her
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confirmation hearings, it's the law all the way down, right? it's law at every step. it's not, you're not -- judges aren't using their position to advance their own view of what the just society ought to be. we're doing the best that we can to follow the law as enacted by we, the people. and something judge davis said, i think, is really important in terms of how the three of us go about it. we don't get to look at the constitution, understand its history and decide on our own what it means. because we are, as the constitution says, we all belong to an inferior court, right? it's the supreme court that's the ultimate arbiter, at least as far as we're concerned, of what those provisions mean.
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and so that means that even if i have a personal view that would differ from the supreme court's about the meaning of some provision of the constitution, stare decisis precedent requires that these three judges here and our colleagues follow what the supreme court says. now, this might be a more interesting discussion if we were three justices, right? because the rules work a little differently for them. >> there's an opening, i hear, so if you want to raise your hand. >> i've never heard a more elegant description of locker in v. new york. i think it was buried in there. >> that's a due process question . we'll get to that. one point just for the audience for people who may not be versed in legal scholarship, that, you know, in law the later-enacted measure takes precedence over something that came before or at least helps intercept something that came before.
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and so what the judges were talking about is that you had other amendments like the 14th amendment and subsequent amendments that give, perhaps, another angle to look at prior enacted provisions that initially only applied to the federal government under the bill of rights. and because there are suggestions in the 14th amendment about application of the bill of rights to the states but not a direct command, that's left a fair bit of leeway that we've seen over in the 20th century particularly about how those measures apply. but that's just sort of a background that, yes, it's not frozen, there have been subsequent amendments which in some ways give more meaning to the words that came before and reflected what people saw at the time, if i'm not wrong. correct me if i'm wrong. so -- >> well, the classic example of that, of course, i'm backing you up here, jess, this is no equal -- there's no equal protection clause in the fifth amendment, but there is in the 14th amendment. one of the civil war amendments. and the supreme court -- seems
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to me correctly -- inferred that the meaning of due process in the fifth amendment surely must include the equal protection guarantee that's more explicit, not more explicit, is explicit in the 14th amendment. so that's iconic -- >> is there a specific thing that would be different, perhaps, if it wasn't? >> well, if there were an equal protection clause in the fifth amendment, maybe the 14th amendment wouldn't have been necessary. >> could be, could be. but as judge davis, i think you're talking about this case from the '50s where after brown v. board of education found that equal protection applied to the states. federal government, d.c., federal enclave had segregated schools. could you possibly have a situation where segregation was illegal in all the 50 states but completely constitutional in the united states, in the capital of the united states?
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that'd be like saying people here couldn't vote. [laughter] so -- preposterous. [laughter] so a little constitutional joke there, forgive me. [laughter] bill of rights day is always kind of a fun day. >> fun day. [laughter] >> let's talk about some of the specific provisions of the bill of rights. the first clauses apply to religion. the congress can't, as you say, make -- passing laws respecting establishment of religion or prohibiting the free exercise thereof. we've seen those clauses, the free exercise clause, the establishment clause be very important many litigation -- in litigation around the country. they constantly come up. the first words in the bill of rights and yet they still are a measure of dispute over what exactly they mean in each particular case. they apply equally to very established religions like christianity or judaism or islam and newer ones like one from
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utah which believes in mummify -- believes in mummification and had its own alternative ten commandments that they wanted to put up on monoliths. how do you figure out what those words mean? i mean, establishment of religion to someone in the 18th century maybe meant the established church of england, right? or the official government church. that's what "establishment" meant. what do they mean now when we have a country with many, many, many more religions, where a government is not in a position to judge and shouldn't with be the validity of one religion over another, where government programs and policies may conflict with tenets of different religions? and all you've got are those half dozen words or what have you in the first amendment to figure it out. how do you even approach a question like that? >> well, this is where the work of organizations like -- [inaudible] comes in to be so helpful. in many ways, it's a matter of
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history. i mean, we're talking about trying to recover -- not to recover, trying to understand what did the framers intend by that. what was the understanding of the public at the time that the amendment was ratified. and that's a historical quest. now, we're not historians, at least i'm not a historian. and so we're generalists. at least as i perceive it, the quest that we're on is a historical quest. once again, to identify what is the value that's being protected or expressed and then how does that apply in a circumstance which may be very different in some ways than it was before. at least that's how i approach it. i start with the history of the matter. >> well, and i would say first of all, you know, you have to
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start with the whole text. that's one thing. so it's not just an establishment of religion, it's laws respecting an establishment of religion, so we have to figure out what respecting means as well as what an establishment means and what religion is. sometimes that becomes an issue in its own right. now, we're the lucky ones, we aren't taking the first cut at this document. it has been interpreted by many judges and justices before us. and so in addition to history, we look at what, in particular, supreme court has said those words mean and the lines that it has sort of drawn, how it's said where the fence hall lie. -- shall lie. and that at least gives us a framework for trying to figure out how it, how the next step, how the next link in the chain is supposed to go when you see dividing lines that they have drawn, what is ok and what is not ok. now, that is, you know, an ongoing -- it is a work in
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progress in the sense that new decisions are always coming. but i always find it really helpful to look at those decisions and study them not just for what they held in their case, but the reasoning and principles that they give, sharing their ideas on what those historical documents say and what the line was that the bill of rights meant to draw there. what's the word that it used. >> and i think interpretation also draws on the ongoing dialogue that takes place between the people and the courts and especially between congress and the courts. and particularly in the first amendment context, congress has spoken drawing on what congress believes those words mean or should mean, because congress has a voice in the interpretation of the constitution and the bill of rights every bit as much as the courts do.
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although courts, the supreme court is the last word. there are lots of other words out there to be spoken in the effort to draw meaning from these, from these words. so i think that hearkening back to your earlier comment there is this dialogue that goes on that, as i say, plays a role in figuring out what those words meant back then and what the practical application of those words are or should be today. >> if i could add, we as judges -- people don't come to us and say, wow, here's an interesting constitutional question, what do you thin we have, this is knot in the constitution, an adversarial system of justice in which -- this part is in the constitution -- cases come to us, we're passive in the sense that we
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don't reach out to decide issues. people have to come to us with, in terms of the body of the constitution, cases or controversies. and they present the dispute through, you know, their lawyers and will tell their story. here is the problem. here is the conflict. here is its impact. here's what it means. and that gives some real flesh to, literally, some real flesh to what the dispute is and evaluating how is the government operating on this individual. what impact is it having on their religions that gives us a concrete framework in which to take those precedents, take those historical documents and apply them. and so i think it's different than some other countries where, of course, we have a much more, you know, what do you think role and offering advisory opinions as is often referred to.
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we courts have a much more circumspect role in that sense which is consistent with, as judge griffin's explained, the fact that we're not elected and we're not writing a constitution. we're here to solve problems that people have. >> and this religious liberty issue dramatizes in high relief the currentness of the controversy over the meaning of the bill of rights. look at something remarkable that's happened in my lifetime. back in 1993 the congress of the united states unanimously passed a bill called the religious freedom restoration act. president clinton signed it with great ceremony in the rose garden. it was, he considered, one of his signal achievements. there was unanimity about -- it was not a partisan issue. here we are some 30 years late persian it's a very partisan issue.
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these things aren't settled. they are very much alive and courts today and in the coming years are going to be faced with these issues about what does religious liberty mean today in the marketplace, in the public square? and it's a fluid situation. >> yeah. i mean, because we're talking about, you know, we're 15% into the 21st century, we've got a bit to go, do you have any thoughts on what are the questions, you know? i'm not asking for the answers, but what are the questions, maybe more specifically we're going to see in terms of
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establishment of religion or free exercise of religion? what do you think might be coming down the pike when we look at -- >> doesn't take a crystal ball on the free exercise. it's the tension between our national commitment to nondiscrimination, right, to equal protection and our national commitment to freedom of religion. and how that, how that plays out. i think that's, i'm not a prophet, but that's an issue that's not -- it's right in front of us now. i think on the free exercise side of it, that's the -- >> right. and i think, you know, for the audience when you think about what is exercise or free exercise of religion mean, one of the ways this issue has come up has been the supreme court recognized same-sex marriage. a lot of americans have religious objections to it. to what extent did they have to through their commercial activities support or at least serve same-sex marriages? that's one of the issues we've
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seen mainly as a state court issue under state anti-discrimination laws. but, you know, what is that boundary. but one can imagine many other types of questions coming up over the century ahead about, you know, new, different religions having objections to different things that could arise and drawing that line is something that's hard. and i guess, you know, so that's certainly one we're going to see, and that is interesting in that the supreme court has really enunciated a right that was not recognized before. and it's caused, you know, a reaction. what about -- is not a linear process, what happens is you have a response
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to one supreme court decision contracting the scope and understanding of the free exercise balls. -- free exercise clause. and roles of states versus federal government getting changed over here. there are lots of pieces getting interpreted all the time by the supreme court. they are marching through a number of amendment every term and it is how these pieces come together that themselves create different issues and the synergy that comes out of this as we work our way through the constitution and how it applies to our lives. you bring up new issues because of the interpretation the court has given us is changed. >> the good news is, because the tension seems to be a part of
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almost every political discussion that takes place in any election. ,t is fashionable and i know julie has got her pocket copy of the constitution -- >> i did, i brought my. is fashionable amongst politicians in washington to have your pocket constitution and that is great. the more discussion we have the better. from my vantage point the bad news, it is not easy to understand. and asre tough issues the judges said, -- more than this, we have
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had individuals who are struggled for years to try to understand the issues. it is not easy work. it is hard work. but we can do hard things. that is what citizenship is about. i offer that because as a i amen and even as a judge a little bit wary of people who say it is easy this way. it is not. they are difficult issues. we just identified one. those are tough issues. they need to be resolved by thoughtful citizens and judges.
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>> there have been many cases about competition between free speech and free exercise of religion. all of the clauses coming together. when government recognizes that or they've been establishing religion. within the methods they can start trying to figure out where those lines are. it becomes complicated. >> that is right. you know this into a to flee. of a conflict in values as a country. as a society. as a democratic family. a number of values that come into conflict.
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as you just heard from our colleagues, many conflicts arise themselves within the context of the bill of rights guarantee and it is hard. it requires hard work on the part of judges. part of what this program is about, it requires hard work on the part of the citizenry to do the work as best you can given where you are to understand the documents and to guarantee so you are informed and can be part of that dialogue. >> let me ask you about one of the things. one of the things foremost on people's minds is the effect of technology on the different rights. amendmente, the first refers to freedom of the press. in 1790, the freedom part -- the
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press was made out of wood and printed a page. now, the press, anybody with their phone and twitter. we talk about the freedom from search and seizure in the 1790's. the search was the redcoats grabbing he and looking through your patch. now, it can be an algorithm in a server somewhere on the satellite. these you reconcile massive technological changes -- by their very -- does the quantity of changes affect the quality of the rights or the protections? is justice marshall was want
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was wont to say and the presidential speech today. it was a remarkable document but there is no perfection in -- in human and ever. justice marshall used to say the wendments, one of which , giving thehis year vote to half of our population is a lot ofo, there imperfection there. but the genius of the founders ,as to craft the document including the bill of rights, despite the specificity that would account for the unforeseeable in the unforeseen. so, who is the press today? the blogger?
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my daughter, who texts her friends about something of public interest? these are hard questions. as judge griffin said, we start with the text but the text is not going to give us reliable answers. the text alone today will not give us reliable answers to these profound questions and so we have to look to other sources beyond the text, to tradition and history. but even the text, tradition, and history will not provide the answers. it is tough work. send or tell your friends you meant three judges today and they do really tough work. of beingdeep privilege on a three-debt -- three-judge panel. gpsfirst was the jones
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case. the question was whether the police attaching a gps without a warrant violated the ordinance. case. a fascinating the briefing, the arguments, the lawyers on both sides worst spectacular. tooknot disclose what place in the conference but i took a great deal of pleasure that the present counsel assumed the judges would have various views on this issue i virtue of the president that appointed us. and i can type when they got it thehe conference, all of press accounts were entirely wrong in their guesses because what we were dealing with was a novel application of a long-standing principle. but how does it apply in a circumstance that literally has never been happy for? months, the three
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judges, before we could decide the outcome. that is not typical. argue that in we very short order we do with the outcome will be and write opinions about it will stop in this case, it took months of exchanging memos back-and-forth because we were wrestling with the issue. what does the fourth amendment mean when it comes to gps surveillance. obviously, if you talked to anyone in 1791 about gps surveillance they would have no idea what you are talking about. but the historical work was significant to try and find out what is at the heart of the fourth amendment. it is such a critical and important bulwark against government overreach into the lives of citizens. i would like to report the
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supreme court adopted our reasoning. it did not. justice and it up with the same result we did, that it was unlawful but for different reasons. but the struggle of watching that process unfold. the struggle with the historical question. tying to identify the value in seeing how it might apply to a completely novel circumstance actually an exciting adventure. >> you may recall from the case ended up evenhere being lines talking about, what would happen if act when the bill of rights was written they something to put in this language. so you do try to analogize as best you can. it is hard to try to analogize and itsy-bitsy constable.
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lion john heree between government, power, individual rights? when you think about it as an welogy, reference, something can look to. that is what we try to draw upon. >> yes. this was a case where, as judge griffin said, the police slapped a gps tracker on a guys car. they had ignored that was expired so for legal purposes they did not have a warrant. the government argued, if i was just on the street i could follow him down the street so it was the same as if i had an unlimited number of cops that could follow someone down the street every day of the month for three months. it is the same thing.
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the washington, d.c., circuit said, no. it is not the same thing. sameupreme court said the thing. they had different reasoning but i think it was a unanimous decision in the supreme court. opinion, aajority of concurrence by justice scalia, and a minority opinion but they all agreed this was a search. whether it was reasonable did not come up. what struck me was i was atching "the wire." in and in season two, they just do that. it seems like such a novel things but they are actually in a garage and they just put the track on the car and it is actually happening. and so they were just doing it, ok? of andt was sort of part parcel of the police here in the
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chesapeake region. imitates know life art. 15 years ago, justice scalia in anticipated opinion a piece of technology known as a thermal imager. the argument the government made in that case was, we could -- this had to do with marijuana grow operations in oregon and one of the arguments the government made was, we could station officers outside the heat to detect the rate of escaping from the house by measuring the relative rate of snowmelt from the roof. which is certainly true. and justice scalia said, no. it is not the same thing. considerationsl of cost and traditional practice
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do come into play. apropos the earlier comment, justice scalia wrote it in favor of the fourth amendment and justice stevens wrote the fourth justice dissenting opinion so one cannot always predict based on sort of traditional notions of how judges are going to comment when a real case presents itself. i've seen judges will always be on the other side of each other to matter the issue. [laughter] >> things are evolving. life is changing. ofngs often do not come out the blue. sometimes they do but usually information. how much information can be accumulated and collected.
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information the government could get. we have the same issue when we saw the police practice transition from fingerprinting to dna, right? the amount of information you get from a fingerprint is one thing, swabbing the inside of someone's cheek is another. where does that cross the line? when government gets more information is it getting too is it information it needs for identifying purposes? these are the types of balancing requirements that are built into the fourth amendment. not just the technology itself but what the technology can sweep in. the justice opinion in the case just referred to was quite emphatic in its reliance on current knowledge that the
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dna protocols used by the fbi and the state for so-called dna fingerprinting would not reveal anything about a person other -- other the identity than the identity. there are very reputable scientists out there today say that assumption with such assurance may not be true. we do not know all that we might come to know about what is in dna." -called "dead so it is a moving target. the bill of rights is not a moving target but application is a constantly moving dynamic. cracks and just for our home audience, that was another case --
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for our home audience, that was another case and that was justice thomas who usually agreed with justice: you but to -- who usually agreed with -- justiceolarly scalia but in that case agreed with the other. in one, please said, we're not looking at that and the court accepted it. but we will be looking further at whether they can or not. the courts have upheld warrantless aerial surveillance. people's backyards. that is pre-drone. now that everyone can get a remote control device and flight over someone specter to see what is going on, maybe that will be a question that arises at some point. let me ask, believe it or not we
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have a -- we have 30 more minutes but i want to keep going along this. you know, the second amendment is one of the amendments that until very recently did not have an authoritative statement from the supreme court at least on whether it contained an individual right to possess a weapon at least in some circumstances. the court said by a 5-4 decision it does and affirming a washington, d.c., circuit opinion. but technology effect weapons. one question out there is a taser kind of weapon protected by the second amendment right. you know, weapons at the time of the adoption involved muskets or knives. how do courts approach that? how do you decide if a taser is a weapon that is included?
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what about other types of new devices that might be weapons or recreational devices? there was a case in new york involving sporting equipment. is that sporting equipment or a weapon? how were we going to draw that kind of line when the framer is militia,about colonial not tasers or stun guns or nunchucks. -- s >> i don't know. in the heller decision, they said it was not limited to simply the types of technology available in 1791 minute that introduces the question you asked, what technology doesn't include. obviously we cannot answer the taser question now. that has not been resolved.
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but i think the methodology is the same. you try to identify the value that was protected in the amendment and apply it here. i will say this. about the second amendment. becamen that case that heller. the d.c.lled parker in circuit then it became heller. i do not know anything about guns. i am a suburban life. guns scare me to death. but i can remember seeing the case was going to be on my docket and with some excitement i blocked off an entire week i was going to work just on this case. i remember getting all of these blog review articles out on the briefs and i was going to spend a week working on this and i
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began with recent history, reading an article by stanford levinsohn in texas. yale, from from harvard. political progressives to see what their review was. it took six or seven hours to get through this. the history showed whether i liked it or not, it showed in 1791 there was this background assumption that people had a great to firearms to defend themselves. but i blocked off the whole week to prepare. i went in and read the briefs. particularly difficult case after that. was split 5-4.rt
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it was a significant case in many ways because the majority and minority both used this model i was talking about of learning the history, trying to understand what was happening in 1791. what was the value that was codified and as we know, the supreme court decided that there is a right to bear arms, to defend yourself in your home. that is as far as they've gotten right now. with what are dealing those aretheir and unresolved issues for us. >> what is amazing about this untils that it took relatively recent times and even after that that they decided the second amendment right applied to the state. they had not even decided if
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that was a right against the federal government or only the state government. involving was a case what kind of arms were recovered, there is still, where you get to these arms. still very much open questions. understanding that security must come into play at some point. yet to beis much resolved in that area. on the technology front, the types of arms. back we still have rifles someone like they would've had in the day, there are as we know, incredibly powerful weapons, automatic guns, bazookas, those kinds of things.
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apply it to that level of legality still has to be resolved. >> i would like for you to come up with questions. we will keep talking while you lineup. both sides. , and the questions we asked -- i am trying to, you know, talk broadly about these issues. but we will take an audience question. question: justice, in one case justice marshall made the decision they should not be moved and president jackson said justice marshall has made that decision and should go and force it. do think the new president-elect is going to have the power to abandon the bill of rights and the constitution altogether?
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what isa question about the authority of the courts when they make a decision. there is a story, we do not know if it is it true story but it is too good to not be true so let's assume it is. the supreme court ruled in favor of the cherokee indians who were being dispossessed of a lot of land. they had a treaty right to president jackson, soon to be on the $20 bill. he said, well, chief justice marshall has made his decision, let him enforce it. you and what army, basically. well, what is the authority of thecourts to have government. we have the current president or the next president or the sheriff in some county in a remote part of the country. follow your interpretations? how can we know what they are when they have such a big entry.
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people in the power from the white house to the city hall to the local county jail. >> will i doubt that anyone of the three of us wants to say a word about the president-elect. but i will say this. and others have said it far better than i could possibly say it. and there was an allusion to it earlier tonight. perhaps this word was not used, but as unelected members of the hopefullych, what we bring to our work and i know my colleagues sitting here do, is a humility in the work that we do as the justise said earlier, she work in awant to write where judges could
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the constitution. what i am trying to say is it is sure faith in our integrity and commitment that makes it possible for us to do our work. we are known as the least dangerous and should and it has been said we do not have armies. we cannot raise taxes. it is only the belief of the people" we do that gives meaning dictum marshall's famous that it is the constitution and judicial branch. think my colleagues to a greater or lesser extent, having the privilege to travel around the world, africa, east they every wish citizen of the united states could share in some of the travels and see for example, it
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in zimbabwe the abject fear of the judges of the supreme court when visited by one of the ministers from the government said, we would hate to see anything terrible happened to a member of your family in response to a judgment the court had rendered. saidso it is important that wir judicious independence which is critical to the work we do and to our real system of democratic government, constitutional the mechanic government that we stay in our lanes. to earninue to work your trust and regard and this includes members of the elected branch so they continue to give credence to our judgment. paz is exactly --
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judge davis is exactly right. it would be a mistake if anyone left the session thinking the bill of rights and these important issues are just for lawyers and judges. we have to decide the cases that come to us. but appreciating and valuing and defending the bill of rights is a patriotic duty of every citizen. please understand the bill of the 220as we focus on fifth anniversary, is part of the original constitution. a structure of government dividing up between the three branches of government as we know. and these states and the federal government. but it is a full document and has to be read together. the bill of rights as to be read in context of separation of powers, the role of the different branches and
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implementing, enforcing, and respecting the bill of rights and all parts of the constitution and i think it is absolutely critical that people teach this to their children. we have to teach it to our children in each other but we also have to understand the values. it is really what defines us as a nation and makes us different in so many other constitutional systems of government. if we do not appreciate them, if we do not understanding and defend them, if we are not willing to talk to each other, if we are not willing to understand the suppose of the beautiful diversity of our country that is embodied in the bill of rights, the free speech, the freedom of religion, the equal protection, then you have to live that in your life as well. to comereally need
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together as a country on that and that is that we believe deeply and mightily in our constitutional structure of government. we may not always agree on exactly how the words apply in each new case by we treasure and respecthe values and we the integrity of our governmental processes and look closely as they do their best efforts to apply it with integrity. judge us on the integrity of our reasoning. by it shouldgree be in general as we discussed tonight. >> i think how frequently -- when the supreme court decides an issue that is contrary to what the president and executive branch thinks, what do they do? follow the supreme court
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posit interpretation. that is a remarkable testament to the strength of the constitution and to the society that it is created. but that will only continue and happen. we heard a lot about justice marshall who famously said, it is only going to happen as long as the judiciary has credibility. that we are not just junior politicians. that what we are is trying to apply the law as it has been enacted by week people. i think the history is remarkable in that regard. that when the supreme court , aides an issue constitutional issue, the executive follows it. the unbroken history. >> right. oneory does not only moving
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direction but it is true that example from the 1830 cause, justice breyer wrote a book where he points out by the 1950's there is the supreme court and the history had gained so much that ability and our system that the supreme court tod when they said they had be integrated for the schools in little rock, even the president eisenhower disagreed he enforced the decision. on the other hand, former house speaker new gingrich said otherwise. said these things are always open for reconsideration. it another question? comingn: thank you for tonight. as a college student, there has been increased concern that college administration is kind of stifling free speech on campuses. my question is, how do you think the application of the bill of
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rights evolved in its application on college campuses in the past 10 years? >> well, part of it is, the constitution does not fully release interactions of private people. it has to be a public university. or college that you are dealing with. , there are first amendment rules about freedom of speech and people can bring challenges. those involving the university of for june you as well. free speech, religion, as we talked about before. we wait for the cases to come to us and decide what is in front of us but there are lines that have been established by
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resident. i am sure new ones will come. one thing i hope this is not so far off topic, but you won't forgive me, but because intrusion and bill of rights are absolutely foundational and elementary but they are not everything. they are not everything. lines, basicnses, foundational protections people have. but we have congress, state legislature, many levels of government that can pass more protections. they can go the on and what the constitution requires. people should remember that as part of our constitutional structure as well. sometimes when they go you want when direction it raises problem's in another. but to the extent people have concerns about how their colleges being run, the court constitution bill of rights and
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the most basic foundational lines, that does not mean that is the answer. students have voices. taxpayers have voices. so it is a larger conversation then this. drags and obviously we cannot comment on any particular dispute. freedom of speech is discomforting, right? the idea behind freedom of speech is that each person has merit and value and gets to speak his or her mind in the public square. speech is only in my mind, really valuable when you are free to hear uncomfortable speech that challenges you. been an unbroken decisions by the supreme court of the united states have established that is what it means. so is freedom of religion.
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freedom of religion is intended to create a space where people who may have very different views than you do about the ,ature of reality and cosmology they are intended to create a republic where we feel uncomfortable, right? said, it struck me a great deal when he used the word "family." family is in overused word but we have this collective idea, this enterprise where we are trying to find space for our fellow citizens to express their thoughts. to live according to their own consciences and that means it is going to be different in the choices you and i may make for our own lives. asneed to be mature enough citizens to be able to say that
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there is space for all of those views and expressions. ofone little teeny voice dissent. i do not read the first amendment as saying that everything has equal value. that it would protect rantings and ravings or harming by me but i cannot carry a tune. it is a line drawn in the sense that government just cannot go there. it just can't go there on the right of people to free speech they have it if it qualifies and there are long layers of constitutional decisions. the judge wasat referencing was that the constitution is only meaningful when it is uncomfortable. as long as you protect the speech you like that is nothing. you can go all around the country and the world.
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that is fine. it is only the protection of the like. that you don't that is you are true commitment to your constitution. mays protecting things that not be in your self-interest and respecting the rights of others to express those views knowing that next time you might be the one that the majority does not want to hear from in so that is really what the commitment is about. >> ok. we will take a question here. question: what if in this discussion, and sin of having a strictly and narrow historical definition of the bill of rights, we had a functional definition of the bill of rights that included article one section nine and 10 that included especially the 19th and 14th amendment within our concept of the bill of rights.
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discussing the evolving meaning andress and search and arms discussing the evolving meaning of equality. >> i think that it's happening. -- alluded to marriage equality. i think that is an example of renewed closeurt look of what equality is. justice brennan, early on said to the effect the equal atatment of unequaled is first a violation of equal protection. there are strands of doctrine. there are lines of cases, the marriage equality case ring the most recent and profound and of course this is the 20th
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anniversary this year of lobbying. so, there are all kinds of developments in the law that require that although the text is not change, requires the justices to take looks at new facts and figure out what they mean. outcomenk your desired -- what i want to say is, the 14th amendment has its own programs of those are definitely important questions as we look at the expounding of the constitution but this is my to buy the first 10 amendments -- this is brought to you by the first 10 amendments which do not address the quality directly. those are interesting questions.
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we have to look at the first 10 amendments through that lens from time to time but we have not even gotten to the ninth amendment yet, which you can have a very whole trip be evening discussing. evening - aippy whole trippy evening discussing. the bill of rights was supposed to be in some ways a harmonizing document. today, as we have discussed, the first amendment, second amendment, parts of the fourth, the fifth, the eighth, the ninth are subject to a lot of acute disagreement in our country. i am curious to her from the three judges tonight to what
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degree should we celebrate that disagreement or to what degree is that disagreement, that acute disagreement, a cause of concern? >> i think we start with medicines purpose. with madk we start ison's a fundamental concept that people of rights over government. that the government cannot define all of their activities and existence. that is fundamental so in that one. that is the contours of those rights, those are difficult issues. remember it is not an amendment, but it was in the structure of the constitution, -- basic right is the right of the majority to decide how to live.
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we the people get to make the rules. not aching, not a priest, not a religious figure but we the people get to decide the rules by which our society is run. in many ways the most fundamental right. but the bill of rights tells us there are limits to the majority to set the rules. and that is where the debate is. but i welcome that debate. these are tough questions. i think the big picture is that we understand that there are fundamental rights and the framers saw those rights as inherent and thought these were god-given rights. you do not need to be atheist -- you do not need to be a theist to believe that. these are things that exist. our quest as it a people is to
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find out the limits of majority rule and the extent and liberty under the constitution. i think it is a healthy debate that is going on. i think medicine one -- i think madison won. >> nowhere and because intrusion or other amendments will you find the phrase "resumption of innocence." that that is an absolute and rock of our criminal justice system and has been since the beginning so part of what the bill of rights did was friendly framesion to lay a -- was the discussion to lay a foundation for and it is the constitutional democracy and we know that the text will not provide answers to all of the questions. and so i celebrate those disagreements and that ongoing dialogue that i alluded to
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before because i think we make a more perfect union every time there is a disagreement tickets worked out in a civil and respectable way by the courts. >> i would just add that before as ae on the bench practicing lawyer and took cases of the supreme court, remember having one once and for reasons i cannot explain there was an article someone sent me where it was covered in a british newspaper. and looking at it through that lens, i am paraphrasing, it said something about eight uniquely american infatuation with the oncept of "my rights." that is one thing the bill of rights does. if we don't agree with the exact contours, part of who we are as a people is to recognize every individual has rights and those are rights that a majority
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cannot step on. it may overestimate what they are but the sense of part of being an american is to have individual rights and it is something that is very different in other countries. other countries are looking in going, "huh." is the fragile balance between when does the majority win, when does the individual win. absolutely critical, the competition is what allows our constitution to survive for longer than others have historically. when aknow, pitch-perfect and from all three of you as we come to the conclusion. we did not get through barely half of the 10 amendments and that is including the third
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which has not been in jeopardy of late one would hope. [laughter] >> i think beyond any particular question, one question visitors to washington on the d c circuit, part from any individual issue that might be had, at least they tell me they come away so impressed by the quality of thinking and the sincerity and effort that the judges and the lawyers put into these questions and i hope it seeing the sophistication and the sensitivity and the really respectful approach that all three judges here have shown to the c-span audience. you cannot watch them judging but you can watch this discussion. i am grateful to the judges for coming out tonight and talking us about how they approach the bill of rights and want some of the questions we might ponder in
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the years ahead are. so please join me in giving them a round of applause. thank you. [applause] >> i want to thank all three of our distinguished judges for coming here. no doubt that the video from tonight's program will be used in classrooms around the country. i will make sure that it is distributed. a great discussion and to a great way to celebrate the 225th anniversary of the ratification of the bill of rights. out, it isn your way a very frigid washington night. thank you. [applause]
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[indiscernible discussion] announcer: on newsmakers -- on q&aer: new year's eve -- >> it was part of the image theng where harrison was poor man for the poor people in here was his rich man in washington sneering at the poor people.
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harrison had thousands of acres and in the state so he was actually very wealthy but he was portrayed as the champion of the tour. women came waving handkerchiefs, some gave speeches, some waved pamphlets. it was shocking. they were criticized by the democrats who said, these women should be at home making pudding. theuncer: author of -- how theampaign presidential campaign changed campaigning forever." >> the election of the house speaker. we recently met up with new members to discuss their background a end expectations ahead of b s


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