[SOUND] >> I said that I wanted to discuss four limits on the judicial power. The first is constitutional. The second that I want to talk about, I'm going to call interpretive limits. This raises the basic question, it underlies everything I'm going to talk about in these lectures. How should the court go about interpreting the Constitution? In fact, how should anyone go about interpreting the Constitution? As I mentioned, every elected official, every government officer takes an oath to uphold the Constitution. How should all of them interpret the document? How should we go about interpreting the document? Now let's be clear, there is no doubt that the constitution must be interpreted. Some of this, of course, is because the Constitution is written in very broad open ended language. What's freedom of speech? What's cruel and unusual punishment? What's do process of law? Those are just examples of areas where the Constitution is written in such broad language. Also, there are many places where the Constitution is silent. Yet, there has to be a Constitutional answer. Can the president fire members of the cabinet? The Constitution talks about how members are the cabinet are selected, but says nothing about how they're removed. Back in the 1860s, Andrew Johnson was impeached for violating a federal statute that said he could not fire members of the cabinet. Does the president have that power? Can the president rescind treaties? Can the president claim executive privilege and the authority to keep secret conversations with the memorandum advisors. These have been major issues in American history. They are all Constitutional questions. The constitution must be interpreted to find an answer, even though the document is silent. Also, it must be remembered, that virtually no Constitutional right is absolute. Even freedom of speech isn't an absolute right. The Supreme Court long has said there's no right to falsely shout fire in a crowded theater. Race is disfavored, of course, as a method government decision making, but even race discrimination is allowed if there's a compelling government interest. How is the court to decide what's a sufficient interest. The fourth amendment prohibits unreasonable searches and seizures. How is it decided whats unreasonable. My point is, that the Constitution must be interpreted. The question is, how should the court go about that? For the last several decades there has been a heated disagreement on the court, and among academics, between those who would consider themselves originalists, and those who consider themselves non-originalists. It's important that we all be familiar with this today, it really goes to what extent are there interpretive limits on what the court does. Originalists would say that the meaning of the constitutional tradition is fixed when it's adopted, it can change only through the amendment process. So in deciding what does it mean to say there are high crimes and misdemeanors as a basis for impeachment removal. You look at what the original understanding was at the time that was adopted. This is in article two where it says the president, the vice-president office of the United States can be impeached, removed from office for treason, bribery, or high crimes and misdemeanors. What's a high crime and misdemeanor. An orginalist would say figure out what was the original meaning at the time. Which I'm going to talk about in some detail. Article One of the Constitution says, Congress can regulate commerce with foreign nations, Indian tribes, and among the states. What does this mean in terms of Congress's power? And originals would say, you look to the original understanding at the time this was adopted in 1787. It means the same thing today as it did when it was adopted. The 14th Amendment, that was adopted in 1868, says that no state can deny any person equal protection under the laws. What does equal protection mean, those who are originalist would say, it means the same thing today as it did then. An originalist would say the Constitution's meaning is fixed. Therefore, its understood same as the time it was adopted. Not surprisingly, and originalist would then say there's no constitutional right to abortion. There's no constitutional right to engage in private, consensual, adult, homosexual activity. There's no constitution right for gays and lesbians to marry. The originalist say, none of these were part of the original understanding of the Constitution. Therefore, none of these are protected. On our current Supreme Court, Antonin Scalia and Clarence Thomas are the justices who self-identify as originalists. Their inquiry whenever there's a constitutional case is about deciding, what does the text say? And what was the original understanding, the tactical provision. The competing view would be those who call themselves Non-Originalists. Non-Originalists say that the Constitution is a living document. That the Constitution's meaning should be determined, not just for what was understood at the time it was adopted, but on the basis of all that's occurred since and non-originals would agree that it's important to start with the text. The text is clear with controlling. But so often the text is unclear. The non-originalists would consider what was the original understanding, but the non-originalists would also look at traditions, at precedents, at what the structure of the Constitution tells us, at contemporary needs and understandings. So the originalist rejects the idea of a living Constitution, and a non-originalist embraces the idea of a living Constitution. And of course on our current court, justices like Ruth Bader Ginsberg and Stephen Breyer are outspoken non-originalists. So much in Constitutional law comes down to this divide. I've already given the examples, like abortion, gay rights, marriage equality. To a large extent what separates the conservatives who reject these, and the liberals who embrace these How they interpret the constitution. This of course carries over to all areas of the Constitution. Take this illustration the second amendment. It's very controversial, especially today. It says a well regulated militia Being necessary to a free state. The right of the people to keep arms shall not be infringed. Does this include a right of individuals to own guns? The originalists would say yes. The originals would say that the framers of the Constitution meant to protect a right of individuals to possess firearms. Non-originalists would disagree. They would say that the 2nd Amendment was meant to be a right to have guns for Militia service. But, they would say, besides that The need in our society for gun control justifies this, regardless of what the framers of the constitution intended. In fact, in 2008, the court decided a case, District of Columbia versus Heller, that involved the District of Columbia witness. Of private ownership, possession of handguns. The Court, 5-4, declared that unconstitutional. Justice Scalia wrote the opinion for the Court, and he said that the Second Amendment was originally understood to the right of individuals to have guns, at least in their home, for the sake of security. Justice Stevens and Bryer wrote desenting opinions, joined by Justice Ginsberg and Sitter, and they said they believed the second amendment was originally meant just to be a right to guns for the purpose of militia service, but also they said, regardless, the need for gun control now justifies this. So notice how opinions in District of Columbia versus Heller were very much about how the Constitution should be interpreted. Those who are originalists defend their philosophy as a way of limiting the powers of an unelected judiciary in a democratic society. They say that it's essential that we constrain the court. This is how we check the judicial power created by Marbury versus Madison. They said if it's not originalism then the justices can do whatever they want. They said that the reason the constitutional judicial review is acceptable is that the court is just following the text and the framers intent. Otherwise we'd be too much discretion for the unelected judiciary. Originalists always challenge non-originalists. To show what is their method of constitutional interpretation that limits the power of the federal courts. Non-originalists respond though, and say that originalism is an impossible and an undesirable method of constitutional interpretation. They argue that it's impossible Because we can never really know what was the original understanding of a constitutional provision. It's unlikely that those at the Constitutional Convention in Philadelphia in 1787, let alone all the state ratifying conventions, had a single understanding of what a provision was to mean. I had the wonderful opportunity from 1997 to 1999 serving as the chair of an elected commission of the city of Los Angeles to rewrite the city charter. A city charter throughout the country is like the Constitution for the city It creates the institutions of city government. It allocates powers among the branches. It even can include protection of individual liberties. In Los Angeles, an initiative was passed to create an elected commission. There were 15 members, one from each city council district. Amazingly I ran, I got elected. It's the getting elected that's the amazing part in this story and then I was chosen by my colleagues to be the Chair of this commission. We drafted the document, we went through two years. It was approved by the voters in June of 1999. And immediately questions arose. As to what provisions meant. Almost always, there were questions that we didn't think of in the drafting and ratification process. Occasionally, someone would call me about a case pending in court and say what did your commission mean by this. And I'd say well this is what we discussed. If they liked what I said This would be the mayor's office, the city is calling. They'd say, could you write a declaration saying that? And if they didn't like what I said, they'd keep calling other members of the commission until they got somebody to write the declaration they wanted. Even soon after the adoption of this document, I realized There was no agreement as to its meaning. and non-originalists say that's especially so when you think of a document that was written in 1787 or an amendment like the 14th Amendment that was adopted in 1868. There's just no agreement as to what freedom of speech or due process or equal protection meant. Non-originalists also make another argument. They say it's undesirable for us today to be governed by the views of those who lived in a world so different from ours. Take some examples. The Constitution in Article II refers to the President and the Vice President With the pronoun he, it's clear that the framers of the Constitution, meant that the president and the vice-president would be male. Does that then mean, if one is an originalist, it's unconstitutional to elect a women as president or vice-president until the Constitution is amended? Or take another example, There's no provision in the Constitution that says the federal government can not deny equal protection of the laws. The 14th Amendment says no state can deny equal protection of the laws but nothing in the Constitution says that about the federal government. Does that mean the federal government can discriminate however it wants? It is an absurd conclusion. In fact there were many places where the framer's intent were clear but we rejected to that. The same congress that ratified that 14th amendment also voted to segregate the District of Columbia public schools. Does that then mean that Brown v. Board of Education was wrong? Non-originalists say that it's meant to be a living document. And of course a non-originalist would say this isn't a new insight. It was John Marshall that said let us never forget that it's a Constitution that we're expounding Constitution to be adapted and endure for ages to come. About 30 years ago, a Duke law professor, Jeff Paul, wrote an elegant article in the Harvard Law Review titled The Original Understand of Original Intent. He said the framers of the Constitution never meant their views to be controlling. James Madison took the only notes we know over the Constitutional convention, and he refused to allow them to be published until after his death, because the framers meant it to be a living document. So non originals would say, the Constitution is not fixed. Its meaning is not established [INAUDIBLE] adopted It's meant to be a document that's a living document. But the originalists would then respond and say, what's the limit on the judicial power? What's to keep the Constitution of just meaning whatever a majority wants at any particular time? A very famous federal judge With the great name Learned Hand. Said I would not want to be governed by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. And what he was saying there is we don't want the federal courts to be able to do anything they want. And the originalists would say that non originalism is responsible. So there is this crucial debate between the originalists and the and the non-orginialists that interpret the constitution, and in fact virtually every issue that comes before the court and all the mater that I'm discussing throughout these lectures It really goes to this question. To what extent are there interpretive limits on the federal judicial power?
