David A. Strauss, "Does the Constitution Mean What It Says?"

Presented by David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, at the University of Chicago Law School's reunion on April 30, 2016.

Introduction by Thomas J. Miles, Dean and Clifton R. Musser Professor of Law.

Transcript

(00:02)
This audio file is a production of the University of Chicago School. Visit us on the web@wwwdotblahdotuchicago.edu.

Introduction: (00:20)
He has served, oh, it's Geoffrey Stone and Dennis Hutchinson as an editor of the Supreme Court Review. Uh, he's a fellow of the American Academy of Arts and Sciences. He's teaching, has spanned constitutional law, federal jurisdiction, elements of the law and administrative law. Uh, he's also taught civil procedure and torts. Uh, as a faculty member, I will say that David has won the teaching award for his excellence in teaching more times than his colleagues would care to remember. And many of you may know that, uh, just two weeks ago, President Obama came back to the law school for a conversation about the Supreme Court and the court's future and of all the law schools in the country that the President could have came to, he came to this one and that's because of all the law professors in the country that he could have had that conversation with, he wanted to have it with Professor David Strauss. So we are really grateful for David's incredible teaching for us at the law school. His scholarship, of course, is pathbreaking and we're delighted that he has generously agreed to give us a sample of it today. So David's talk is entitled, does the Constitution mean what it says? So please welcome Professor David Strauss.

Strauss: (01:54)
Thank you Tom for that very generous, excessively (indistiguishable) introduction. Welcome all of you back. Lots of people that I know you're on my seating charts. So, don't think you're off the hook just because you graduated a number of years ago, a number of neither of us is really going to want to discuss. Um, uh, so as Tom said, my topic is does the constitution mean what it says? And this is really a, an installment in a project of mine that I've been, I've been working on for a number of years. The project is about what the nature of U.S. Constitutional law really is. And my basic idea is that, you know, you have this image of constitutional law and, and, and it begins with, with this thing - a copy of the constitution. Mine is not as well worn as it should be. Uh, uh, usually it's kind of well thumbed and, and that the way you decide a question of constitutional law as you get out the text, then you look it up and you see, well I see it says Congress shall make no law abridging the freedom of speech. To me, no law means no law. What Does it mean to you that kind of, that kind of thing. And it begins with the text and sometimes the text is unclear and that it has to be interpreted, but that's what we're basically doing is starting with the text and moving from there. I think that's a misconception. I don't think that's the way US constitutional law actually works. I don't think it's the way it should work. And I think that in its conception has led us down some paths we shouldn't have taken. Not so much on the doctrine, although to some extent on the actual law, but more in the way we think about the constitution even in the way we think about our country. Not to get too grandiose about it. So let me be a little bit more specific about it. Part of the story about why I think that is not the right way to think about us Constitutional law you can get, if you just picked up a supreme court opinion in a constitutional case, just pick one up at random and take a look at the way the opinion is written. And I bet you not 100% of the time, but most of the time the opinion will go something like this. This is a case involving the First amendment or the Fourth amendment or whatever the First Amendment says and they quote the first and then we have interpreted that to mean - And then the rest of the discussion is about the precedents, the cases and the court's own judgments about what makes sense and what spare and the text of the constitution having made its appearance at the beginning of opinion is then ceremoniously shut, uh, shown off the stage, like some kind of ceremonial deity that made its appearance and showed up. Everyone nodded and recognition that then leaves the scene and has never heard from again until the next opinion when it performs the same role. Any case after case, that's what you see, that the real discussion is about the cases, the precedents and also judgments about does this make sense? Is this really the way to organize our, our government. You see that over and over again. Now that's not to say that you just ignore the text, you know it has this ceremonial function. There are also ways in which it has a quite important operative non-ceremonial function. It's very important that we know when a president's term of office ends, we never have to piece together the precedent to figure that out. We have it written down in that, so that's a good thing. Um, so there are some, some places in which, uh, you know, I don't want to say the texts - that would be a big mistake to say that things never plays a role. Um, but it's role is really quite limited and he's not the sort of model that I think we have other things to begin with the text routinely, um, and uh, um, and proceed from there. So that's one, one part of what I, what I want to say the other part has to do with, well, okay, let's, let's take a look at the text and try to get a sense of just to what extent we really haven't been even acting in a way consistent with the text. And that's really the pitch I want to make to you today about the text of the constitution. And what I want to suggest is that, is that the idea that we begin with the text and we're interpreting the text and figuring out what is freedom of speech mean or what does due process of law. I mean what is unreasonable search and seizure mean, that we begin with that and proceed from there is essentially backward that what we've done is we figured some things out about what our system should look like and then we read that back into the text. Um, uh, so we, we have an idea of what a good well functioning system of freedom of expression, of free religion, or nondiscrimination should look like. And then we kind of find a way to get that into the text. So that we can say that we're following the text, but, but really the process is the other way around. We found a way to square what we want to do with the text, then there's could be portrayed, And I think some people would want to portray it as a, as a perversion, as a mistake, something gone down the wrong path. We've got to go back to the text. I really want to say the opposite. I want to say no, no, this is, this is the right way to proceed. And it really wouldn't make a lot of sense to do things otherwise, that we really should take advantage of the things we've learned since they wrote the text. And if we want to read those back into the accents, that's, that's fine. But that's, that seems to be a constructive way to proceed. But that is in fact the way we're proceeding. So let me begin with some examples from the text. And the first one I have is actually silly. Uh, this isn't here, but I don't know why. So you've got this famous now like, oh, it'd be an episodicically famous clause every time someone shows up who maybe wasn't born in the continental United States, people start arguing about as this clause, which, you know, anyway, um, uh, this, I owe this to some law professors, Jack Walk and Sam Levinson, Jordan specter of.. all of them from Texas who wrote an article about this. And his essay, it's just a piece of stone... So you see this and you think, okay, no person except the natural born citizen, a citizen at the time of the United States at the time of adoption shall be eligible to the office of President. And you think, okay, I get it. If you're a natural born citizen, you're eligible. If you're, if you were a citizen when the constitution was adopted, you're also eligible. I get that. Um, well here's the problem with that and take a look at that second column. Yeah. Like when two commas surround the phrase, the phrase being versus the United States, it means it's like a parentheses. So what it actually seems to be saying is, so what that's telling us is that unless you were a natural born citizen at the time of the adoption or a citizen of the United States at the time, the adoption, unless you're one of those two things, you can't be president. So unless you around, then you're out. Well, and that I think every president since Zachary Taylor was ineligible for office for the office and, uh, we have some problems because lots of stuff has happened since Zachary. So anyway, so that's, I mean, that's kind of, that's as I say, silliness and no one really believes that and no one is really, really troubled by that. But here's some that's not so simple. What happens when the president says, I don't like your views, I'm carting you off to jail. Um, uh, you said something I don't like. Well, the First Amendment protects my right to speak. Aha. That's it. Take a look at it. Congress shall make no law - doesn't say anything about the president. Oh yes. But the framers, when they said Congress, they also meant the other two branches. And that's why they have an article devoted to Congress and article devoted to the President and the articles devoted to the judiciary. Did you this year? Pretty Unlikely. They were confused about that. And in fact, in the constitution itself, there is a definition of the word Congress and it is the house plus the Senate. It doesn't include anyone else. So what happens when the president exercising his powers decides to abridge somebody's, freedom of speech. No, it's not fine. We figured that out. It's not fine, but try to square that with the text. Now there are ways you can do it. There are various ways they're - None of them is actually perfectly satisfactory. Uh, they're sort of work arounds that, well, the president usually acts pursuant to congressional authorization and maybe if the president has been authorized by Congress through a brief speech, maybe that counselor, congressional of Richmond, you know, maybe. And then you still have presidential powers that are not exercised pursuant to congressional authorization like the commander in chief power. Doesn't need Congress's permission for that. You have the courts that have inherent power to punish contempt of court. Um, does that mean they're not bound by the First Amendment? Of course it doesn't mean that, but it's not. We don't get that from the text. You get that from a couple of hundred years of difficult trial and error. Three steps forward, two steps back practice where you figured out that the threat to free expression doesn't just come from Congress, if that's indeed what they meant when they wrote this, which is unclear. The threat to free expression can come from um, from anywhere. I like this one in particular because there is this kind of rhetoric of first amendment. Absoluteism out there that I alluded to at the beginning. No law means no law. What do you think it means? And even that's not good enough cause you still have to figure out what abridging means on freedom of speech. But apart from that, you know, why don't you start with no law? Why don't you start a little earlier, if no law means no law, doesn't Congress mean Congress? And so President Obama decides he doesn't like something you said the other day, Off You go, right? No, not right not right. Not because the text, not because the text, because of the lessons of history. Okay. Here's another one a, well this is an actually just sort of further to the one about Congress. Uh, one notable thing about the first amendment is the only provision of the bill of rights. This written this way, all the others grant rights to people or say there are things the government can't do, which is further evidence that, well, if you were really taking the text to mean me what it says, it means only congress is responsible under the first amendment. All the other amendments say things like this, the right of the people to be secure. Um, they could have said the right of free speech shall not be abridged that could have said that instead but said that they said Congress shall not. It must've meant Congress shall not go with two. It according present, all the other amendments are phrased differently at and under the standard principles of textual construction. That means they must've meant that when they said Congress. Okay. Um, I think the establishment clause, uh, Congress shall make no law respecting an establishment of religion. Well, we've already decided Congress doesn't mean Congress, it means the federal government. We just need to figure that one out. We just, right, we did that. Okay, now look at that phrasing. Make no law respecting an establishment of religion. It doesn't say establishing a religion. It says respecting an establishment of religion. Why did they do that? It's actually pretty clear from the history why they did that. They did that because there were established religions in many states at the time. Really up until a couple of decades of the 19th century, many states had established religions and they thought Congress shouldn't be interfering with state establishments. Congress shouldn't be establishing a national church, but also shouldn't be interfering with state established churches. So it Massachusetts one on congregationalism to be the established church supported by tax revenues. They have to be allowed to do it. And they were, um, and Congress couldn't interfere with that. So the idea was the federal government shall not interfere with state establishment to state's choice to establish religions. What that clause has been taken to being for, since the middle of the 20th century is the courts can forbid states from having established religions or from doing anything that might constitute impermissible religion. The opposite of what it says. It's supposed to say the federal government can't interfere with what the state aid to religion. We now interpret it to mean with the courts must interfere when the state aids religion sometimes. Um, again, sort of perfectly sensible if I do correct, way for the law to be, but you get it from the texts. The text pretty much says the opposite. Okay. Let's take a look at some others. The equal protection clause, the source of our basic principles and you can't discriminate against people on the basis of race or sex or nowadays almost certainly sexual orientation, national origin. Um, the, the uh, here's the clause that state shall not deny any person in this jurisdiction equal protection of the laws. Okay. If the state is discriminating with regard to police protection, I get that. Then you can, you can't give African Americans less police protection than you give to whites, I pretty much that I get that, but as we know the regime set in motion by Brown against board of education applied to a lot more than than police protection. The fact that applies to everything, it applies to buses, it applies to the public parks it applies to the swimming pools. It applies to the golf courses. Now you keep someone out of a public golf courses that denying that person equal protection? In what sense is that denying that person equal protection. Equal treatment. Yes. Equality. Yes, Equal protection. Not really. Not Obviously. You can squeeze it in there but you at least get in there. That's what you're doing. That's what you're doing. We figured out that a regime in which people can be excluded from public facilities of any kind because of their race is unacceptable and we read it back to the equal protection clause, which its terms seem to be speaking only about protection and by the way, as far as we can tell is, of course, a lot of historians controversy about this. It was originally intended to reach only the protection of the criminal laws and tort laws there was, and there's another provision that of the privileges or immunities clause, which is a little bit broader, but things like schools and certainly public recreational facilities and public transportation facilities. It was not originally written to provide for equality in those, and the words actually don't lend themselves to that, but now we look at that and we think, oh yeah, equal protection. That means you can't discriminate against people on the basis of their race or sex of course, way off the table when that was written. But that's another thing. That's sexual orientation, which even farther off, again, another story, but I, that's, that's a different kind of argument. I'm not sort of saying, oh, it's been used in ways it wasn't envisioned. That's another kind of argument, that familiar argument. I really want to focus on the text and show how it's being used in ways that even the text naturally read, it's not seem to allow, which is why as I say, I think this image that we're starting with the text and going from there is inverted. Okay. Let's see if we can find some more. What about the federal government can remember? No state shall deny no state shall deny. I didn't say federal government and there is no equal protection clause for the federal covenants on the deal. Remember this from Con law 3, Bolling v Sharp is the case. There's no equal protection clause for the federal government. Um, so can the federal government discriminate on the basis of race? Could schools in Washington DC a component of that federal government, he segregated in the same day the court decided Brown v. board of education, resolved that question and said it would be unthinkable, unthinkable for the schools in the nation's capital be segregated after we have sent the states can't segregate, go to schools and they're right. It's unthinkable. It's not in the text, but is unthinkable. And they were right to do what they did. And what's interesting now as you find the chord, what they said was the due process clause of the fifth amendment drafted at a time when the slave holding was legal in the United States. The due process clause of the fifth amendment forbids the federal government from discriminating on the basis of race. Um, and they now talk about the equal protection component of the fifth amendment as if there's a subsection B that provides for equal protection. Now I've checked, it's not there. I accepted it is there, it is there. It is there because it has to be there because that's the kind of country we want. Um, and actually the supreme court now just sort of blows past this, the most textually oriented justice on the Supreme Court when they get a case involving discrimination by the federal government. They don't even pay any attention to this. If it's affirmative action, they don't like it. If it's other kinds of discrimination, they might like it. Or I might not like it. If it's discrimination, on the basis base of sex that might argue about it, but no one ever says, wait a second. Federal government can discriminate. This just says state. And if you're tempted to say, well, my state, they must've met federal government. They just fought the civil war -- after the Civil War, do you think they would stay blue, gray. It's all the same. Okay. Um, a constitutional right to vote. This is a, this is an interesting and um, um, uh, under appreciated when all there's some people including some, some people. Among you are it, by the way, on top of all of these, all of these issues, um, and I suppose in the government wants to deny a state government wants to deny the right to vote to some, some part of its citizen's. What, what prevents them from doing that? Supposedly, for example, they want to reinstate property qualifications for voting, which by the way were commonplace the time the constitution was adopted. So they want to disenfranchise poor people. I mean explicitly not cleverly through Voter ID requirements and stuff like that. But just say if your income is below a certain level, you can't vote. Suppose they wanted to do that. What stops them from doing well under, under current law? It would be one of those two provisions I've under underlined. Either it would be an abridgment of privileges or immunities of citizens of the United States or would deny equal protection of the laws. But it's actually quite clear that those provisions when they were adopted had nothing to do with voting. We know that in a couple of ways and it's quite clear from the text as well as from the history. Here's how we, uh, we know that. The first section, one of the 14th amendment, a post civil war amendment was adopted after the civil war was designed to deal with certain forms of egregious discrimination against people who have been slaves. African Americans had been slaves and that's straight forward. If it had been designed to give the formerly enslaved people the right to vote, you wouldn't need this. Because the 15th amendment, which came along many years later, after much more controversy, gave the right to vote to African Americans. So if the 14th amendment had already given it to them, they didn't need to fight over the 15th as it was already there, but they did fight over the 15th because everyone understood those words didn't give African Americans the right to vote. They need another amendment to do that. It was fact intensely controversial. Voting by African Americans was seen as an especially radical move that yes, African Americans should be able to form contracts, sue in court, should be protected by the criminal laws and tort laws, but voting, Whoa, Whoa, Whoa, that's a bridge too far and that was intensely fought and finally resolved by the 15th amendment but not resolved by the 14th. Then of course, as you know, within a couple of decades after the 15th, was adopted, it was effectively sending not by the, by by states that figured out subterfuges to keep African Americans from voting. So there's pieces of evidence. Number one, if this protected the right to vote, then you wouldn't have needed the 15th amendment, if it didn't protect the right to vote for African Americans. Certainly didn't protect the right to vote for anybody else because African Americans went the court what they were doing with the 14th amendment. As if that's not enough. You've also got this, um, this widely ignored division, actually play a kind of analogical role in this case called Evenwell in the case about one person, one vote with the court, decided a few weeks ago. But here's section two of the 14th Amendment, the great 14th amendment, equal protection due process, privileges and immunities. That's in section one, here's section two: what it says is, um, if a state denies the rank, the vote to any men over the age of 21, we will reduce its representation in the house Proportionate. That's what it says. Now, there are couple of things going on there. One is this stuff about men, um, which by the way, caused leading women's suffrage advocates of the age to oppose the whole 14th amendment because they said it entrenches, sex discrimination, right in the Constitution, we're going to oppose it for that reason because here it says, well, you know, deny the vote to women, which every state did at the time, that's fine. Don't worry about that. Just don't go denying it, the men. Um, and that, that prompted this opposition. So that's one little issue with section two, but that's not the issue I want to focus on - should want to focus on this year you got a section two which says you want to deny the right to vote to people, you will pay a price. But it does not say you can't do it. It says actually you can do it as long as you pay a price. As long as you're willing to have your representation in the house diminished, you can prevent people from voting. What the what the concern of course was that the, the states, the states of the former confederacy where there are large numbers of slaves would have their representation in the house increased because those slaves were not eligible to vote, but they would nonetheless disenfranchise them. So the extra political power would be exercised by the slave holders, a perverse result of the, of the, uh, of the freeing of the slaves. So the idea was, well, we're going to make sure if you don't let them actually vote, you won't get that extra political power. And that was the idea. But the tradeoff is clear. You don't have to let people vote. You just have to pay a price. The 15th amendment came along and wiped that out. But as far as the 14th amendment is concerned, um, it's very hard to make the argument from the base of the text that it guarantees, the right to vote. Now, why is that significant? 15th Amendment enfranchised, African Americans, 19th Amendment enfranchised Women, 26th amendment enfranchised, 18 year olds. And so on. This you could, the District of Columbia voters can vote for electors. Uh, there is no constitutional amendment that says, I can think about for example, poor people, wealth qualifications. No constitutional amendment says anything about sexual orientation. If a state wanted to disenfranchise those groups, it sure looks like they could do it under the fourteenth, but could they do it? No, no, that's been settled by it for a long time by the supreme court, but it doesn't come from the text. Okay. What else? What about this one - The person, people to be secure in their persons houses, papers and effects. So fourth amendment, when the government sees as a stream of electrons or photons are electromagnetic waves from the air - tell me which of those things is that? Is it a person? No, it's not a person. Is that a house? Is it a paper? It's the opposite of paper. Is it an effect? I don't think so. I'm thinking if someone said to you, have you remembered your personal effects when you've gotten off the plane? I think, well, I did make that phone conversation. I guess I don't have that with me. And you know, we'd say that, right. This was an argument. The Supreme Court bought at one point, the famous case called Olmstead famously posted by Justice Brandeis the Second, um, the court later reversed course and said, no intercepting a phone conversation based on wiretap placed on a public phone booth, which used to exist. Um, uh, the supreme court said no, that's a violation of the fourth amendment. Justice black who is by far the most influential textualist of last hundred years as influential as Justice Scalia was. Justice Black I think was in questioning more influential, different political abuse. But, but more influential justice, black descent. He said, no, I don't, I don't see it. I don't see anything within the fourth amendment about, about wiretapping. And what's more, it's been understood for a long time. If this doesn't prevent the government from eavesdropping, from having someone sort of learn by you while you're having your bar room conversation, you know, with Christopher Marlowe from here back to kill. And that's I guess a little anachronistic. It doesn't, it doesn't prevent that. Um, and what is wire tapping but a form of fancy eavesdropping? I'm not covered by the text. And also by the way, not covered by the visual understanding. So to suggest this, Black, that was a dissent - and today none of it says any problem thinking that the fourth amendment applies to the activities, the NSA, when they intercept electronic communications. And that's as it should be, you know, get with Dex. Um, all right. I think, I think I'll just do one more of their lunch, but I'll just do, this is the, the uh, the famous issue with the incorporation of the bill of rights. This is a bill of rights apply to the states. The original understanding with justice to the chief justice Marshall wrote an opinion early on is that the bill of rights itself applies only to the federal government. Um, by virtue of a series of Supreme Court decisions beginning in the late 19th century. But crucially in the middle of the 20th century, nearly every provision of the bill of rights now applies to the states. How does that work? What provision in the constitution says the bill of rights shall hereby applied in the states? There's no such provision. So how does it work? The court says, well, it's, it's been incorporated by, they say the due process clause. The second clause I've underlined there - nor shall any state deprive any person of life, liberty or property without due process of law. And they say that incorporates the bill of rights or most of it. Well, how does that work? The language doesn't actually seem to say that and that will, um, uh, what it seems to say is it government can't do certain things to, unless it gives you process. It doesn't say it cannot abridge your freedom of speech, freedom of religion or any of those things no matter what process that gets you. It doesn't say that, but that's the source the Supreme Court says of the, um, of the incorporation of the, of the bill of rights, a very bad textual fit. Okay. He might say, well that's just because for whatever reason they ignore the previous clause privileges or immunities of citizens United States. It's perfectly plausible as a verbal matter and say your privileges or immunities include those listed in the bill of rights passed. That sounds right. That sounds possible. Um, so they just picked the wrong clause. Big Deal. Well, we are too. We're here to problems even if you go that route. Number one, privileges or immunities of citizens. So just to give a wild hypothetical that could never come to pass in this country. Supposing some state decided that among noncitizens it's a crime to practice Islam, I suppose in some state decided that what would stop them from doing that? The First Amendment, the First Amendment was the person that has incorporated in a privilege immunities clause producing news of citizens. What happens to non, they become unprotected by the bill of rights. If you go to that, if you go, that could never happen. But, a problem nonetheless. Here's a further problem. Um, among the provisions that's incorporated, is this one a due process clause? If you're writing a provision that meant to include all of the bill of rights, why would you do that and write another provision that was already in the bill of rights. Why would you do that if you're already incorporating the due process clause from this? Why don't you bring another one into the provision that's supposed to do that incorporation. Pretty good textual evidence. They didn't mean to incorporate the whole bill of rights because they went ahead and wrote one of the protections in the bill of rights into the 14th amendment. Um, so, uh, there you go. There's some more. I mean there's a question about whether there can be any paper money, but you know, going coins, not paper, the current coin of the United States. This a big issue at that I didn't start and is not totally clear, but there's a question about that. If there's there a lot of things like this and you get the idea, okay, so where, where do we go with this? What's the, what's the implication apart from some kind of puzzles about this and some cute things you can say about how the text doesn't line up with, with constitutional law? I think there are three, three basic. Um, I get two or three basic takeaways I'd say. And Hey, here's, here's, here's what, here's what I'd say. The first thing is, uh, it's a, it's a, a reason that we shouldn't engage in what I think of as constitutional fundamentalism. By fundamentalism, I mean, I mean this, the view that the real constitution is the text, the real constitution is that thing I have in my pocket. And the cases and precedents and traditions we've understood developed over the years that's not the real constitution. Now it's useful. It's precedent. And we got to follow up because of stare decisis and what's stare decisis -- well. It's a Latin word and therefore it's a good thing. Yeah. But that's kind of an ... and that's kind of something that was layered on. The real constitution is the text. I think that's all wrong. I think that's all wrong. And the idea that you can always resort to the text to get to overthrow the precedents and traditions that have been built up over the years. I think that's wrong. And I think these examples show that cause these are examples in which you would, as the supreme court said, be unthinkable to say only congress disenfranchised, poor people, conduct electronic surveillance. Federal government can discriminate all at once. It's fine to discriminate with respect to transportation and recreation. It would be unthinkable to say those things because we figured those things out over the years and embodied them in precedents and traditions. Not because it's in the text. And that's why the fundamentalist move to say, well let's sweep away what the courts thought. Or you know, go back to the real constitution. The real constitution is what we've worked out over the years. Not The thing that's on my mind that that's, that's one point. Second point I think is more kind of abstract and, and it's, it's how you think about the way the law, constitutional law at least, and maybe this has implications elsewhere, has developed in this country and whether you know to speak in like humanities-ish terms for which I apologize, we're, whether it's a narrative of progress or narrative of decline. So what, here's what I mean by that. You could say, look, they had it right at the beginning, they had figured it out and what we're struggling to do is to get back and restore the greatness of the framers. That can be one story. The other story is, it's Thomas Jefferson said at the time there were people like other people, they got a lot of stuff, right? You've got a lot of stuff, not quite right. We've got a lot of stuff. I'm pretty wrong and we made progress since then. So what's happened since the founding is not been a decline and a corruption and a movement away from the true constitution, which we have to try to restore. That's not been, it's been steady, irregular progress and we should try to capitalize on it. And that's the way we should see our constitutional tradition. And so when people say, let's go back to the wisdom of the framers, well. If you want to sort of read into the wisdom of the framers things we've learned over the years, that's fine. That's a familiar thing to do. But that's what you're doing. You're reading our wisdom back into their words and their, and their deeds and then gets, the third thing I'd say is, uh, is you know, when people venerate the text and talk about the text there, the text is an amazing, it's an amazing document. And as I said, in some ways indispensable to us. Um, indispensable to us today, but the text is only a part of the story and not, not even the biggest part of the story and pardon and pardon? An indispensable part, crucial part, but not the biggest part. You know, the constitution isn't the techs. The constitution as the word suggests is what constitutes us. It's who we are. And that's something we've figured out over time. Who you are. So if you want to get in touch with the true constitution, don't recycle me the words of the text, the getting in touch with the America, we really are. So there's my argument. Thank you.

Question: (32:26)
[inaudible] sure. Sorry, Citizen's United the majority. (inaudible)

Strauss: (32:48)
I, I'm sure they'd not think if you said to them [inaudible] are you perverting our electoral system? I suspect the answer would be no. Uh, they do not think of that. I actually am not as, um, the ethics in my own view, Citizens United, you know, it was wrong. Um, but it's actually an example of how constitutional law works. And it's interesting to think about why it's wrong. Here's why I say that just seemed to, citizens United were actually planted a generation earlier, um, in Buckley against Vallejo where it's the very first campaign finance case where it said equality is not a legitimate concern. The only legitimate concern is corruption. And it said that a long time ago. And a lot of people at that time embraced that. It turned out that was wrong. Um, other than equality should be a concern. He quality actually is a concern. One person, one vote is the equality principle. And what's happened is instead of evolving away from Buckley, the court got deeper and deeper into it and said, corruption gotta be corruption. Uh, what is corruption, corruption, bribery. Unless you can show us bribery, you can't limit campaign expenditures. And that's the, that's the problem. So I think they were, they were wrong in assessing what makes for healthy electoral system. They were wrong in understanding other principles of our democracy, but, but I don't, I mean, there is a certain logic to the, uh, to the decision. So I would, um, you know, I think it's wrong. This is consistent those ways rather than as a sort of lawless act of, uh, of a willful perversion that that's the way I think about a lot of people would take a strong review. That's if you, if you think that, you know, with what's going, but a lot to be going on as the development of precedent, there was a lot of precedent on their side in citizens United. It's unfortunate and shouldn't have been, they should have moved away from it. But that's what was going on.

Question: (34:35)
So do you, um, in your work, talk about the second amendment, especially being in Chicago with a handgun ban. I know that that Bennett's worked hard on a lot of the work that the city tried to do in the gun area. I'm curious how you've addressed that and stuff.

Strauss: (34:50)
Yeah, there are two, two things we said about the second amendment and the right to keep and bear arms. The decision, um, Heller, the decision that held that the second amendment is a, um, uh, is a right to individuals. It gets individuals the right to bear arms rather than being a right of a, to establish a religion that purports to be a bit of constitutional fundamentalism. And maybe the purest example of it that we'd see where they said, look, you got the second amendment, let's figure out what the second amendment, the sense, and I think it shows the perils of fundamentalism in two ways. One is in the end, you know, they said it's an individual right to bear arms. But then maybe because they were thinking about people wandering around the supreme court building with automatic weapons, they pulled back a little bit and said, but of course there are a law there. You know, we don't mean you can bear arms everywhere. You could keep them out of the hands of felons, you could keep them out of schools, you can keep, and they don't ever tie that back into the text or anything else. They're just being sensible. But fundamentalism and sensible ness are different things. Um, uh, so that's, that's, that's uh, uh, one, one issue I see. The other issue is when they went to incorporate the bill of rights and apply to the city of Chicago. And then in case you mentioned, um, Macdonald, you know, they had this issue that I raised in the PowerPoint about, well, okay, what, what, what provision of the constitution actually incorporates the second amendment and the lawyers arguing against the city's ordinance who prevailed, said, well, it's the privileges or immunities clause. Um, they started their argument and Justice Scalia, the arch texturalilist, uh, who wrote Heller, uh, interrupted the lawyer and said, why are you saying that there's 150 years of precedent that's contrary to that even I'm going along with the precedent.

Strauss: (36:36)
Why you, why are you doing that? Why are you trying to get us back to the original understandings and the text when there's all this precedent? Um, uh, and they eventually brushed aside the argument that the text means it's the privileges or immunities clause incorporated. The Second Amendment said, not always said a long time ago as a due process clause, let's move on. So they were really in that case where they applied the second amendment to the states. We're, um, we're following a precedent. Um, my real problem with Heller, my problem with fundamentalist mis is looking at the text, the model, looking at the traditions and seeing that for a long time the understanding has been states and local governments and the federal government can regulate firearms. That's a longstanding tradition. And then just played no role in the opinion. Whether it played a role in their thinking. Maybe the play no role in the opinion. And that's fine.

Question: (37:22)
That's my objection sir. Your remarks today in a rule of law, I'm just curious, do you think question cannibis, where the law provides no answer, there's a gap question comes up and they never not this?

Strauss: (37:48)
Well that's a good question. There a couple of ways to understand that that issue you could say, are there questions that come up where we can't get an answer from the text alone? And certainly yes is the answer to that because the Texas unclear ambiguous or it simply is no textual provision that speaks to that particular question. Should we have public funded health care constitution doesn't tell us one way or another. Now what we say in those circumstances as well, then it's left to the normal democratic processes. That's what the constitution is telling us. Actually. It doesn't even say that, but, um, uh, but we've, uh, we worked that out. We've understood that. So in that sense, um, the gap filler is the democratic process. Um, now, uh, uh, the, the more sort of puzzling case that you're pointing to is in which there is some kind of genuine ambiguity. We have a phrase, we're not sure what the phrase means. Of course the constitution has famously has lots of those. It's vague, it's ambiguous. How do we apply it? Um, uh, you know, there, I think that is where precedent comes into play and precedent at least narrows the range of disagreement. If there's no judicial precedent, often there are nonjudicial precedents. There are understandings that have built up that this is the way we treat these problems. Uh, and that's that, that that should play a role. Um, but in the end you might sort of, you can narrow your, the texts. Now is it the precedent narrows it, the non traditional precedent narrows it. But in the end you might just be in the position of saying, well, this just seems to be a better way to proceed within the bounds set for us by the law and there is a gap and we're going to fill it by doing the right thing where the right thing is not what would be the right thing if we were writing on a blank slate. But given the way the law is narrow things down, we have a gap and we'll have to have to figure out the right way to proceed. I think the courts do that all the time. That's, I think that's commonplace and it is, it is character chord as oh, just making stuff up. But that's not fair because it is, it is exercising that judgment only within, um, uh, sort of pretty often quite narrow boundaries. So, uh, we didn't have that 13, nine anything we've gotten rid of. They read by now. They couldn't have agreed on the language, but everyone understood that written on that certainly today. How would they have done? And there's a Charles blackbird paid. I love fests or the yellow school many years ago said that that question, questions like that were settled by the great constitutional experts on missionary Ridge. That's uh, I think what we weather here, here's here is the, here is the counter point to your question. Supposing a chunk of the states decided they wanted to see seed from the union and form their own government and we say, you can't do that. They'd say, well, where's the amendment? Where's the NTC session men? You say, well, we've got a word for that. Maybe it be sold, maybe. No, I don't see anything in the text. Right. That's not, we'd say, no, we fought a war over that. We settled that, that issue settled, infected, so settled normally even think to raise it because people are under, so we fought a war over it.

Strauss: (41:02)
If there were no 13th amendment, that's we'd say, but don't have to be a court case. Not. I'd be like, how are they? Are they get on? They would find someplace the same way they did with segregation by the federal government. They'd find some provision in the constitution. They'd say it's a violation of the Republican form of government. They'd say, you're depriving people of liberty without due process because no process could be adequate to reinflate people that was less than that, the civil war. They'd say something like that. That's just what we do. This is what we do when it's not there, but it makes sense. We get it in there. Figure a way. Don't you think? Many of the arguments here make aren't unique to constitutional law and he got an income based system, like internal revenue code. You can do a similar presentation and make the same point. Then you start with the tax. He'd come into the (indistingishable)

Strauss: (41:57)
Uh, I guess I think that it's a, it's a, it's a continuum then he's going to have that done. What's distinctive? It's a great question. What's distinctive about the US constitution is it is old and nearly unamendable and as texts getting more recent and more easily amenable, you get more things that really do come from the text and aren't read back on the base of precedence. But, but even at the limit, um, a lot of stuff, I mean I haven't, you know, I don't, I don't know enough to know for sure, but my sense is a lot of things, even with relatively easily amenable things, they're sort of traditions and understandings and they get read back into, my guess is even CFR, um, that, you know, yeah, that's what it says and it doesn't quite fit with what we do, but that's what we do and everybody thinks it's the right way to proceed. So that I think, I think the relative proportions of the law you can get just from reading the text versus things you have to get from the traditions and understandings varies according to the ease of amendment. But it's never 100% is never zero. King v Burwell. That was like a Chevron zero case. I mean, they didn't even go look at the time, say Chevron will honor discretion for the agency. It was just don't look like how can this work any other way? Right, right. No, that was right. This is exactly why they didn't go to Chevron is kind of interesting. So it's been an easy way out to say, the static, it's pulling in a couple of different directions. It's a natural one for Chevron. And the fact that didn't do that. It's an interesting for other reasons having to do with what they want, what their attitude is toward Chevron. But you're right, that was an example of yeah, the text says this, but come on. I mean, it wouldn''t work. And even the text was, I mean, as you'd expect when a certain conclusion is, you know, crazy given the scheme, they're going to be parts of the text that will support your conclusion. This is crazy gift the scheme. And there were, there were plenty of textual arguments that the government make there too. Sir,

Question: (43:50)
There's a movement afoot to have a convention of states pursuant to Article Five. And my question is, are you part of that movement and what amendments? Would you suggest?

Strauss: (43:58)
No, I'm not part of that movement. I am way too much of a conservative, uh, to be part of.... Uh, to be part of that movement, which is, I'm not a conservative in the of political sense, but I think the constitution is, should develop gradually over time by trial and error. I think that's the way the law should develop. Um, uh, there, there can be occasions for interventions, but I think those should be done after ...at the more, easily amended, modified level of legislation. If we, we need a big change, do it by legislation, then you can tinker with it. You can change it. You can put an agency in charge of enforcing it, working out the kinks, you know, if you think something needs to be changed in a big way, you know, lock it into the constitution. Um, and that's, I think that is a, B, I think this is a sort of, it really is a small c conservative idea. Be careful before you mess with something that's working pretty well, not working perfectly. No one thinks that, working pretty well. Um, we want to change it, change it incrementally changing ways he can go back on, don't turn over the whole apple cart. And that's I think a very, uh, it's about, I think it's the right principal, but more important, I think it's a principle imbedded our law, sir.

Question (45:13)
Um, so there's an argument that could be made that you bring the celebrity out, this celebrity diety onto the stage and parade them around before dispensing of then that's really about legitimacy. And that, if you know, everybody accepts your argument and it may be ironclad logically. But if everybody accepts your argument and you showed the emperor has no clothes, you've lost something in terms of legitimacy case and it, does that need to be back, filled it in some way or does the extent to which we're able to advocate for a legitimacy of new things. The government jobs or unexpected things that government does weaken by acknowledging that this textualism is really kind of just a farce.

Strauss: (45:48)
Yeah, yeah. Yeah. Okay. Good, good, good. Um, I don't, I don't think it's a farce. I think it is. I think it is overused and overstated. I don't think it's a farce. I think the right view to take toward the constitution is something like this. Look on some things. It really is indispensable, like the President leaving office and it is really important that we not trash it because then someone will come along and say, well, we don't pay any attention to Congress. You don't pay attention for.... It's fixed. Why don't we interpret January 20th to mean at a reasonable time after the election? As long as there's nothing that really important going on. Right. Which would be chaos. So I think, I think that is why I think although I've caught you're right, I've kind of joked about it. I think our habit of finding a way to reconcile the text with what we're doing, I think that's important. I don't think that's a detail or trivial or phony. I think that's important. I think it is a way of saying, look, we understand the text serves certain very valuable functions and we don't want to undermine those. And our way of announcing, we don't want undermine those is by saying you can't blow it off if you think, if you think there's a constitution where you got to tell me some kind of story that fits with the text, um, you kind of explain how it fits. And if you can't do that, then it's not a constitutional right. But that's different from saying, well, we start with the text. And we derive it from there. The other thing that's sort of puzzles me is the idea that, you know, unless there is some kind of focal point of not fully rational legitimacy or, or, uh, adherence that the system won't hold, you know, that could be, it could be that without these, these sorts of symbols, we wouldn't be able to keep the country together. That's possible. The thing is that then this is getting kind of, kind of more abstract than maybe we should. People used to say that about religion. It used to be an absolute axiom but political life that if a community is documented on religion and up all together politically, um, and that's why you were justified in expelling or maybe persecuting people who didn't hold to religious views because if people worship different gods, how can they possibly, uh, adhere to the same civic code. Now one of the great advances in human societies, we overcame that. We now reject that no one, no one in a, in a civilized society I would say believes that anymore. Um, and maybe this is the same thing. Maybe if you just said to people, look, I mean it's not a matter of the constitution being quasi sacred, the constitutions useful in some ways and that's it. You just one other ways. Well, we've got that holds us together and these shared understandings and traditions and make a lot of sense. Not Anything Kweisi religious that would awesome work that, that, that would be the, that would be an issue for me. One word. Okay.
So when, when my counselor, um, oh, let me try to find something in a statue in front of it, the way that happens at all, why are we avoiding had a hundred years? Yeah. I think usually when we say, well, let's try to decide this issue on a statutory basis and not on a constitutional basis as possible. The constitution base we're talking about, it's not a text pieces that's present. Let's interpret this statute not to limit speech and these ways. Because if you look at the first of the precedents developed at that area of the law, you'll see a serious constitutional issue unless we interpret the snatch it this way. But the constitution that's playing a role there is the constitution devised by precedent. Um, not, not with the text that's started. At least that's what I say. And as for why we do it, I think we do it. I think it goes back to the question about the, um, about, uh, having constitutional convention, rewriting the constitution. I think it is better to keep things flexible if you can, and not want them down into a form that's unamendable constitutional the way it's actually, there are some serious issues about it, but the argument for it would be, you know, don't decide something is going to prevent legislatures from responding to Simon and where there's the legislature wants to respond. It can, and that means that when it comes to [inaudible], I think we have to be done. Thank you very much.



Speaker 2: (50:06)
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