[0:00:05 Speaker 1] Mhm. Yeah. Yeah. Mhm. Mhm. Yeah. Mhm. Yeah. So it's my privilege to introduce [0:00:24 Speaker 0] to you, Professor Hadley Arkus [0:00:25 Speaker 1] who's the Edward nay professor of [0:00:27 Speaker 0] jurisprudence at Amber's College, [0:00:29 Speaker 1] Where he first started teaching in 19 [0:00:31 Speaker 0] 66 as a child. Prodigy [0:00:33 Speaker 1] as we don't know. Uh He's the author of a number of important [0:00:37 Speaker 0] books from Princeton University, the philosopher in the City, First Things [0:00:42 Speaker 1] beyond the Constitution, and more recently from [0:00:45 Speaker 0] Cambridge University Press, Natural Rights and the right to choose. He's his articles appeared not only in scholarly journals but also in the Wall Street, Wall Street Journal, [0:00:55 Speaker 1] Washington Post, Weekly Standard and other [0:00:57 Speaker 0] uh public venues as well. Um He was educated [0:01:02 Speaker 1] at the University of Illinois PhD at the University of Chicago [0:01:05 Speaker 0] under the celebrated uh leo Strauss. [0:01:08 Speaker 1] So uh I should mention [0:01:09 Speaker 0] also he's the founder at Amherst of the Committee [0:01:13 Speaker 1] for the American, founding a group of alumni and students that are [0:01:16 Speaker 0] seeking to preserve at Amherst the direction of natural rights that were preserved that were taught by the american founders and also by Lincoln. Professor Marcus is one [0:01:24 Speaker 1] of if not the leading natural [0:01:27 Speaker 0] law natural rights thinker in the country. And so we're very, very privileged indeed to have him speak for us, haven't you? Do you feel? Yeah, the leading natural rights, as we say in Amherst, I think you've got the wrong reverend Jackson. I just realized this was my only second time in Austin in my life and maybe something will probably, I'm telling my favorite stories about 2nd times, but but I recall the last time I was here, I was stopping in SAN MARCos to give a talk for ken Grasso with talk that many turns. Then I was told when I got off the plane, 200 undergraduates were going to be there that night. I thought I'd better take advantage of my time and sketch out a different kind of talk not skilled out. Then I went in and I told an old story that a clipping that mike Goldman had made from me from the new york times, from the Metropolitan Diary, sketches of life in the city and one from several years back read in this way, it said Dear Diary. It was midway during AC three of La Traviata at the New York City Opera. After witnessing Alfredo's confession of love, the couple's retreat to the outskirts of paris, but George was appealed to release Alfredo for the benefit of assistance, prospects of marriage. The lettuce compliance are pretended deceit. Alfredo's jealous rage, a reversal, an illness, judges judge your sympathy, the lovers tragic reunion and feel at his death. After all of that I heard the woman behind me say to her companion, the same thing happened to my girlfriend Gloria. Two middle aged persons left in that hall of 200. So I thought even the second talk wasn't going to work. So just just bear down and do what you're going to do. Well, thanks for coming out on a lovely friday afternoon. It's good to see matt kevin and rob. You might see in Princeton with our seminar and on the First Principles and everything you said about my work has been replicated by our dear friend Gary Jacobson, who's who's really an adornment to this place and whose departure has diminished the I. Q. In New England in this aftermath, in an old style. I'd like to begin with some things in the wrist and hand and with things that don't come to us instantly as questions of moment in our constitutional law. I'd like to begin with the actor tim Robbins. He professed himself a while back uhh As wounded when he was disinvited from the 15th anniversary showing of Bull Durham at the Baseball Hall of Fame. And this invited because of his opposition to the war in Iraq. The Baseball Hall of Fame of course, is one of those private associations so thickly populating the landscape. And like many other associate associations, it sought to bring people together um with matters of common interest, well filtering out the things that divide them. So they don't take positions on matters political. But Robbins recoiled, stung from this judgment and with the imagination of the artist. He found in this small decision something more portentous. It was part of a repression on the Bush and and and Ashcroft. But there had been no agent of the law, silencing Robbins, threatening him with penalties for speaking his views or preventing him from proclaiming his views at some other time, some other place. And yet Robbins thought he detected in this shunning of views nothing less than a violation of the First Amendment. He found the means of conveying that opinion in his play in new york called embedded, kind of rather savage indictment of the Bush administration and the war, and even some critical things about leo Strauss for professor. And in the midst of that indictment, he found a place for his own mistreatment at the hands of the Baseball Hall of Fame and an announcement that he offered gravely at the beginning of the play. It was said, this is the age when an institution's First Amendment rights supersede the individuals. Apparently the surprise came with a certain jolt for him that organizations, private associations Also bore certain rights under the 1st Amendment. The members had a claim to freedom of association, which entailed the right to preserve the character and the integrity of the association that they formed. Now, a rejoinder of this kind made to Robbins would involve an appeal to principles long settled, but often forgotten and obscured and yet quite axiomatic, we might say quite axiomatic in the first principles of a constitutional order. The leaders of the Baseball Hall of Fame may not recall, but the argument made on their side had been made in a famous case in the 19 thirties, the case of the Associated Press versus the National Labor Relations Board, but the argument was made in a dissenting opinion by Justice George Sutherland, And the case was part of one of those famous package of cases, the labor board cases which marked the critical turning of the Supreme Court, the receding from opposition to the new deal. Now, this was 1937 and the court was now upholding the reach of the federal government or the power of the federal government to reach. Labor unions and private companies under the rather implausible device of the commerce clause to compel private employees, private employers to deal with unions. Just as Sutherland's argument in the case of the Associated Press was an argument cast in terms of freedom of association, it evolved the freedom of a newspaper anti union in its political credo to be forced to accept as part of its editorial staff people who are militantly pro union. My own surmise is that Sutherland's opinion receded from memory because it was lumped together with many other arguments set down by the judges who resisted the new deal. Even though those judges often included liberal justices like BRANDEIS and Cardozo, these opinions receded from memory because they were filed by historians and certain professors of law under the rubric of dissenting arguments in cases that decisions that lost. Sign aside that lost thought to be discredited them as the court upheld the new deal. And the implication, of course, was that those arguments losing politically were also intellectually discredited or refuted. And yet as I sought to show in other places, that's that's that's not the case. And to a surprising extent, much of the opposition to the new deal actually held and that we live today for the most part in our daily lives in a cast of law that was preserved for us mainly by George Sutherland and his colleagues including his liberal colleagues. And that would be quite startled if some of these things were suddenly changed for us. Now, I should tell you I grew up in a house with a big picture of franklin Roosevelt in the kitchen as we're not for F. D. I don't think any member of my family would be alive today. I am as un constituted a friend of the executive power. But the course of that book on Sutherland Gary may remember I came across these letters, Senator Boris files About the case of Jacob Market 49 years old and a tailor in Jersey City Who was sent to sentenced to four months in jail, Find $100 in 1930 for money. His wife and four daughters would have to take care of the tailor shop in his absence. And what has he done? Knowingly deliberately, he had pressed The suit of one of his customers for 35 stents instead of the 40 cents mandated under the National Recovery Act to keep prices up. People seem to forget that when the courts put some of that stuff away, they never came back. And when we remember the new deal, we remember the things that survived. And perhaps not not. It's some unlovely moments. My main concern has been to show how arguments that were deeply compelling seem to have lost their currency or fallen out of our inventory of principles familiar, understandable, readily usable because the cases containing those arguments have had their meaning stamped as they're placed by historians under one political rubric rather than the other. They may be classified, for example, under the rubric of a conservative court, Um, in the late 19th, early 20th century, you know, striking down regulations of business in the name of Laissez faire or the court resisting the new deal in the name of some version of natural law. And my argument is that far from more, far more has been lost than the understanding of political economy as we've fallen into a kind of groove of politically labeling and grouping these cases. My pitch here is a fairly simple one, a plea to read these cases, a new pass the labels and the caricatures simply to read them for the reasoning they contain reasoning that we often find surprisingly new because they've been filtered from us for many years. And when we read the cases, in that way, we may have an entirely different view of the project. So instead of seeing judges who are governed by the zeitgeist and the decisions explained in terms of theories of historical determinism, we see judges engaged across the generations in an ongoing conversation as they deliberate about the substantive principles of justice and the meaning of a regime of law. Now, in making this kind of argument, it's often useful to take some of these cases and translate them into terms or conditions more familiar to us and see how we react to them. And so in recalling Sutherland's argument or the problem that kicked in. For tim Robbins. Let's imagine that we had a Journal of the National Organization of Women, a journal that is emphatically and militantly pro choice on abortion. Let's imagine that an editor of that journal undergoes a conversion and becomes militantly pro life anti abortion. Now, we take it as a given that the leaders of Now would I want to ask her to leave? Let's suppose that in that vein of tim Robbins, the editor argued that she was being fired, then suffering a punishment because of her political opinions and then firing her. The organization was quite an unambiguously impairing her First Amendment freedom to publish her views. Now, one of the signal virtues or illuminations in the rejoinder that must come into play here is that it reminds us that private associations cannot violate the First Amendment constitutional protections are protections of persons against the powers of government operating through the force of law. The First Amendment was the protection of persons. And as it turned out of protection of the powers of state, of the states, for the reach and power of the federal government, is it an editor is fired from her position in a pro choice journal. She's not barred from speaking or publishing her sentiments in other venues, or finding accountable position in editing a writing in a pro life journal. To be blocked from publishing or working in one journal is not the same, after all, is being barred by law from publishing those sentiments anywhere in any setting or public forum. And being barred by law means being barred with the prospect of suffering a serious penalty to state the matter, though from the other side, um, the axioms may accumulate in this way, if people bear a legitimate interest, not an interested in hiring contract killers, but a legitimate interest, they should be feel they should be free to press that interest in the political arena, they should be free to commend their ends publicly and seek allies among people who may share their ends. They may form an association of people who have the same legitimate interest they have in promoting those ends, and if they have that right to form an association that right entails, the right to preserve the integrity of an association committed to those ends. Okay, and so the irony that blew up in the face of tim Robbins was this If the loss sought to protect tim Robbins freedom to make his argument, even in a private setting, the law may do that only by impairing the right of the people in that association to preserve an association committed to its own ends and free to speak that only in favor of the ends they truly favor. Now. Some prints of mine on Capitol Hill have been concerned about the dramatic, dramatic political imbalance and leading campuses, with only a handful of republicans and faculties, with many large departments as an english, showing no republicans at all, no conservatives. There's been a rising interest in Congress for different versions of what's been called the academic bill of rights or willingness to use the powers of the federal government to seek some way of opening the university. Two political moral perspectives that would be, as the saying goes these days, a bit more diverse. That proposal may have a sharper edge when it comes to public universities funded after all this public monies. But on the main lines defining the problem, the division between the private and the public university must have a constitutional significance that endures as a private entity. My own college, Amherst College could assist that everyone speak Latin on the premises, hop around on one ft you don't have to go to amazon was compelled. Uh, it could in fact, decided regards speech critical of gay rights, A speech it's no longer legitimate in this enclave in this association. It is the same way a catholic university committed to catholic doctrine may terribly refuse to preserve on the faculty teachers of theology, who would misrepresent the catholic position or comment to their students, adoption that catholic teaching simply couldn't sanction. If there's a freedom to be catholic, there must be a freedom to preserve the integrity of catholic teaching, amorous cows will be free to be quite as sectarian in the other way if it indeed were to acknowledge that it's become a kind of a political seminary or an avowedly sectarian institution with no policies, no pretends to be anything else. But as we say, sufficient unto the day is the evil thereof. So I leave this one, I'll leave this one aside. I would simply say again that George Sutherland's dissenting opinion in The A.P. case in 1937 is the opinion that explains more persuasively than anything else, the maxims that protect the Pro Choice Journal and the Private Liberal College. Now, if I had the time here, I'd make use of the same device I used here with the labor case and I would cast in contemporary terms again the holdings of other older cases from the time of the New deal arguments assume now to be discredited and I think one was fined again that as we reason about the matter, a new our tendency is to come down on the side of the argument that the historians have assumed to be rejected with this added twist, that we have a hard time now imagining than anyone would have thought differently and rejected these arguments, bearing now in decisions that the scholars seem to have rejected, I have to reserve for another time, some of those engaging older cases with crusty judges like own Robertson, Rufus Peckham of whom Holmes Holmes used to say his major premise was goddamn it. And he just he just extrapolated from there. And what's what's what's the theory is that social scientists say it took in about 85% of the variants he got. You know, it was, it was a very serviceable, major premise, oh, uh, now with oppressive time and people coming in, uh, I approached the problem from a rather different angle as I go back to another notable decision that's been caricatured and regarded as deeply discredited. And what I'd ask you to do is uh some of you who are, who read these cases may spot the case I'm describing and say, I invite you to shout out when you you know what it is. Gary probably knows these things. Now. It shouldn't, it shouldn't surprise people that judge is writing carefully. We'll try to frame more precisely the kind of judgment they're reaching the case at hand, so that the holding doesn't seem to flow over carelessly to cover things they never meant to reach. And with that care, they'll usually seek to show how the judgment they reach in this case can be reconciled with the judgments they handed down in the past. Ah, that discipline has as its purpose The point of showing that the judges hold themselves as obliged to respect the rules they've articulated in the past, that they're not claiming of freedom just to make up new rules from case to Frankfurt is old lament. We are not Kati sitting under a tree, you know, we've got to explain the reasons why how this connects with what we did on Tuesday. And yet that is exactly what was filtered out in the accounts of the reasoning put forth By the supposedly conservative judges at the end of the 19th and 20th century. So let me take one notable example to offer you, I'll draw some lines of this kind from one K that case. And and maybe again, an interesting puzzle for those who've studied constitutional, you probably will see what this is if I assembled the points that the judges are encompassing to what conclusion is it pointing and how soon can you identify the case? So the opinion was framed in this way by the jurist writing for the Supreme Court. The jurist noted that it was a clear violation of the 14th amendment and abridgement or denial of the quality under the constitution. When west Virginia limited the membership on juries to white male persons, 21 years of age, and citizens of the state, he noted that there had been a law in Louisiana that had provided that all persons traveling in that state upon vessels engaged in the caring of persons should have equal rights and privileges and suffer no discrimination based on race or color. That provision said the judge posed no constitutional problem. It was wholly within the power of the state to forbid that racial discrimination among passengers. Okay, He notes that were the laws of the state or the charter of a private company, provided that no person shall be excluded from cars and Israeli on account of color. The law was not respected when passengers of different races were compelled to travel in different cars assigned exclusively to people of the same color. Nothing in the constitution barred the legislature from passing laws of that kind, mandating the equal treatment of the races and from existing on the exacting enforcement of the statute. Do you know the case? It's a blessing is placing. For my instance, it comes to surprise to put it mildly to discover that this was the reasoning in Plessy versus Ferguson, and that case has been quite infamous. Become infamous, of course, is the case reputed to have mandated separate but equal. It was the case supposedly overruled in Brown versus board, but the phrase separate but equal did not spring from anything in the reasoning of the judges. The question before the court is Justice Brown noted, was whether this kind of a separation accorded with the kinds of separations that legislators and judges found reasonable and set against the established usages and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. It was Brown showed he and his colleagues were quite prepared to enforce policies that mandated a stringent equality of treatment, policies that forbid, in no uncertain terms any discriminatory treatment or separation of the races on public railways. And with that sense of the matter, Brown made it clear that the court would not continents any schemes suggested as hypotheticals in which the legislature would mandate that colored people walk on different parts of the street or require that white men's houses be painted white and colored men's black or their vehicles or their business signs be of different colors. These schemes are of course reminiscent of those stars of David. The jews were forced to wear nazi Germany to mark them off as a stigmatized people, and that was a sense of brown sense of the matter, that this is simply a gratuitous gesture to injure and to denigrate, and there are no plausible connection to any legitimate interest of the state. Okay, well, why was it reasonable to separate the races and railway cars? And again, the interesting thing here is the court was not canvassing the sentiments of judges for the judges thought it was apparently quite as reasonable for the Legislature to insist that there be no separation in public railways. The questions was what degree of discretion lay within the authority of the legislature as a judge? What was fitting and reasonable, but that question would be measured, as Brown said, not by consulting the feelings, are estimates of judges, by considering what was regarded as reasonable according to the established usage, customs traditions and is Brown and his colleagues made clear it would not suffice in answering this question to cite the established uses customs and traditions in the south, in enclaves showing a deep lingering racial prejudice as the judges way the standards at work here, they consulted the standards for what was regarded as reasonable by judges and legislatures in the North And by the men who had framed the 14th Amendment itself. And as the judges Kansas, the precedence, they found a host of decisions in the country, decisions that sustained as reasonable and legitimate the separation of the races in public railways. They found those judgments rendered by courts in Illinois michigan pennsylvania as well as in the border states of the South. They found that one single case, of course, of the separation of Children in massachusetts in the case, many people here know roberts versus city of boston with that preeminent anti slavery jurist, uh Samuel Shaw, Herman Melville's a father in law for sure, drawing on the temper and the moral sensibility of in liberal massachusetts, the decision of the City council in boston to provide for that separation was no meaner, no less legitimate. That the judgment of that same body, that it was reasonable to separate the Children in schools on the basis of sex or on grounds of age and ability to seem to them all of a piece. That decision had come before the Civil War, but it could not possibly have gone unnoticed by the judges, that the same judgment would be seconded By the men who had framed the 14th Amendment. The Congress had passed, the 14th Amendment had a plenary authority over the District of Columbia. And as john Noonan would later observe, it was hard to credit the notion That the same men who passed the 14th Amendment thought that the logic of that amendment barred the segregation of Children in the public schools in Topeka. and when they did not think that the same amendment barred the segregation of Children within the schools of the District of Columbia, which came under the exclusive control of Congress. And yet even more than that, the judges in 1896 were close enough to the experience to know That Lyman Trumbull and the drafters of the 14th Amendment um, Assured their colleagues up and down that nothing in that logic of the 14th Amendment could possibly threaten those laws on miscegenation in Illinois indiana and other places that barred marriage across racial lines. Those laws were as important, we're taking this quite seriously against get in Illinois and indiana as in Kentucky and Alabama as everyone knew at the time. There wasn't a ghost of a chance That the 14th amendment would pass if trumbull could not offer those assurances to his colleagues. And so we put this together, we say, how did this look to judges In 1896? Who weighing the question, looking beyond their own sentiments for guidance? It had to be clear to them that the judgment even of the most liberal statesman and judges in the north, The 14th Amendment could not forbid legislatures from providing for the separation of races in marriage in public schools and in public advances. That's how it looked. Unless the judges were able to come up with some compelling principle appealing to a deeper logic. The limited question before the judges rather settle itself. Uh, this might not be the arrangements that accorded with the sentiments of the judges, but they could not say in any honest canvassing of the understanding of the time that the constitution clearly forbade the judgment made in this instance by the legislature of Louisiana. Now curiously steve calabrese, one of the founders of the Federal Society, mentioned Plessy a few months ago as he was celebrating the Federal Society and its doctrine of originalism. He remarked that Plessy showed the need to overturn certain case and plus he had to be torn out root and branch. But even steve, one of the most careful students of the law, had forgotten the finer grain of reason it contained in the plastic case and have not noticed that the mode of analysis used by the court was just about perfectly in accord with a style of that originalism that the Federalist society has been, has been urging upon this. Okay, And of course, some of us think that there was in Plessy an appeal precisely to that deeper logic in that famous stirring dissent offered by the first Justice Harlan. That was the opinion which you probably recall that Harlan declared that the constitution was color blind, that there is no cast here. And as Harland argued in those lines that resonate in the view of the constitution, in the eye of the law, there is in this country, no superior, dominant ruling class of citizens. There's no attempt to, as highland said to legislate social equality, but there's no implication that citizens stood on the same social plane when they stood together in legal offices or as members of juries. So he went on to say that the arbitrary separation of citizens on the basis of race while they're in a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution, it cannot be justified on any legal grounds. Harland was quite emphatic on the point that race was inadmissible for creating tears of rights among citizens, but was race equally admissible in creating tears of rights equally inadmissible in creating tears of rights among persons, as in determining just which class of persons could get access to the rights of citizenship. And in the sweep of this opinion and the design of his argument, Harland remarked that there is among us, a race so different from our own that we did not permit those belonging it to become citizens of the United States. Persons belonging to it. With few exceptions, abs are absolutely excluded from this country. And you know who that is. I think some of you right, the chinese and there's no case as far as I'm looking at this years ago, there was no case involving the liberal treatment of blacks and indians in which he was not in dissent. There's no case involving the liberal treatment of the chinese in which he was not with the majority. And so the line was, for God's sakes, you're not even a china and sit next to you on the a train and you won't let a black man who perhaps fought to preserve the Union Harland sentiments. By the way that passage, I found. Excised from a number of case books For the curious that they would leave that one out when he raised the question of whether he was clear about the ground of the judgment he was offering how the sediments were rightly animated. It's arguably at the same time, that he never really provided the explanation in principle. That the explanation running to the root the explanation of why it was wrong to draw moral inferences about people on the basis of race and on the basis of race than assigned benefits and disabilities. The want of that argument may not only explain why Harlan's dissent offered no particular help to the court in later years. And they keep me pointing out to us later on with affirmative action and racial No, we never did accept Harlan's argument in Plessy versus Ferguson. We never accept we're not saying the constitution is color blind justice, Kennedy insists on this one. Huh. It may also account for why it offered no guidance with the judges in the 1940s and 50s were searching for some way of explaining whether segregation on the basis of race was not only wrong in relation to this particular case involving the condition of schools, lunch counters, the swimming pools, but whether it's something in principle wrong with discriminations based on race. Uh, the late Bill Hasty, a federal judge, was trustee of my college. He was part of the team arguing those cases in the 30s and 40s. And bill hasty recalled one time he was arguing with these cases and the scheme was to make them as narrow as possible and widely Rutledge linden is uh, Mr Hasty, wouldn't you say this discrimination separation is wrong in principle? Well, we might your honor, but that's not the argument we're offering today. and 10 minutes later, Wiley Rutledge leaned in again and said Mr, hasty wouldn't you say? And then Bill said, I gave him 12 minutes of pure Bullshit so that he would never ask me that question again. We are not doing that today. And after years of not doing it, they forgot how to do it. I'm afraid. Looking back to the brown case, the judges were often befuddled by the question of whether the wrong here was merely a contingent wrong, was it wrong to separate Children on the basis of race? Because we might impair the performance and the progress of Children in the schools. But if we separated them on the basis of race and their reading scores went up with the segregation have ceased to be wrong. What would we say that there's something in principle wrong with the discrimination based on race? A wrong that would not be faced, say if the segregation work to deliver benefits to black people? My own judgment, as some people here know, is that the wrong of racial discrimination was indeed a wrong in principle, that it was rooted in the very logic of law and moral judgment I forbear laying out here, the case I've been offering over the years, but I'd offer this compressed account just for the moment, I've argued that behind the will or the passion to discriminate on the basis of race is a species of determinism. The notion that race exerts a kind of deterministic control over the character and conduct of person, so that if we know someone's race, we think we can draw some interesting moral inferences about him, whether he's whether he's on balance a good or a bad man, whether his presence in the community would improve or or diminish it. To know someone's race on these premises is to know something about the people more fitting in any place more deserving of promotion or neglect. In short, we have the clearest ground for assigning benefits and disabilities to people. But if this sense of things were true, well, none of us could plausibly bear responsibility for his own acts. Our conduct is determined by our race. There will be no ground for for disapproval or approval. So for censure or for rewards. It might be said in this respect that the willingness to discriminate on the basis of race denies that moral autonomy or that or freedom. That is the very premise of our standing as moral agents. If we are not in control of our own acts, we would never deserve punishment at the hands of law, Neither would we ever deserve praise. It's an accent of the law and indeed, of moral judgment that we may not hold. People blame more. They are responsible for acts they were powerless to effect. And so all in all strictness, it could be said that if discrimination on the basis of race were not wrong, then nothing I submit. Nothing literally could ever be wrong. For there'll be no plausible standards of right and wrong to which process may be held accountable. The whole language and logic of moral judgment and legal judgment would be stripped of its meaning. These words of right and wrong would be reduced to the oddity of words without meaning or function. They may apply of a approval or disapproval, but not strictly a ground for casting judgments of right and rock. The judges over many years were reaching out for something of this kind and at times they came close and yet they never did quite break out of that scheme of identifying the wrong in any case as contingent contingent that is on the injuries that could be produced in the schools, on the assignment of jobs. I recall a venerable professor of law at the University of Chicago, actually, time I think by these years we could fill kurland Phil we're amusing about this and say, how did the judge move how the judges move from wrong of segregation in the schools to swimming pools? Are you suggesting that being segregated on the basis of race in the pools will impair the performance of Children in the schools? Yeah. Uh, to listen to the lawyers, one would have thought that we needed a special principle in each case. And so if black people were restricted from access to public tennis courts, we'd have to articulate a constitutional right to play tennis. And what I've argued over the years is that the judges have kept confusing here principles with the instances in which they may be manifested once. I'm clear on the principle by which that ball rolls down the inclined plane and it's affected by the angle of inclination. Will it work with yellow planes and blue plains and wooden wooden planes and plastic bowls? Um There may be access to the racial discrimination in access to tennis courts, swimming pools, copying machines. But what we should grasp here is that we have the same principle at work, a principle that could be manifested in a numberless variety of cases. It may be lunch counters or clubs or ballparks or computers, but it's the same principle engaged and we need not strain our wit to explain any distinct importance in ballparks or computers. And yet that confusion has persisted remarkably among our jurists. And there's probably no more dramatic case in point under this head, then, the case that provides my final case and carries me through to my summation or argument summation of this argument. The case that stances so tellingly to my mind, Is Loving vs Virginia. In 1967. When the Supreme Court confronted a case arising out of the old laws of Virginia. The laws on miscegenation buying marriage across racial lines. In this instance, there's a law you can get the bad marriage of a white man, richard, loving and mildred Jeter, a black woman. When the case reached the Supreme Court, chief Justice Warren opened it in this way and she said this case presents a constitutional question never addressed by this court, a case never addressed by this court. The court has never yes addressed the case involving discriminations in the law based on race or a case concerning marriage. You've never done that before. I raised the question once of what the judges might have done if the case involved a law in Virginia that for bad business partnerships across racial lines. And I called and I imagine the case of two friends, black and white who purchased together a delicatessen and I called the case Zabar's versus Virginia. Will the judges have said, we've never seen a case like this before. We've never dealt with a case of delicatessens. And when they struck down that law, would they have articulated a new constitutional right, a right to own a delicatessen? Well, as I have the occasion to argue, it made as much sense now for the judgment that the judges announced here that the case brought forth a new right to marry and as the judges acknowledge that so called right to marry could be restricted at many points as a law forbade the marriage of Children, incestuous couples couplings across species. I was just told by a friend in Denver of somebody who appeared at the marriage license bureau seeking a marriage license for himself and his horse. And I'm proud to tell you that. I guess the reason tended by the clerk for refusing the application. Just the horse wasn't yet 18. Mhm. As the judges acknowledged, the so called right to be married could be restricted in many points and through the drift of the judges into new confusions of marriage was a sign of the fact once again, that they've never been clear on the principle of the case. If they had, they would recognize that this case could have been resolved without saying a word about marriage. You don't need it. He was simply racial discrimination in another instance. And then they've been explaining why that case never precluded other restrictions based on race. A fundamental right. But of course it could be restricted in many points, just as the case of the partners in business would have been decided without saying anything about a right to own a delicatessen. Well, when were alerted to the problem, in this way it becomes revealing and it begins to open a further window into the understanding of the judges. What we ask, What did they finally say about racial discrimination? Where did the wrongness lie? And in dealing with that question, decisive to the case. Chief Justice Warren state of the matter. In this way, he said, there could be no question but that Virginia's miscegenation statutes rests solely upon distinctions drawn according to race. The statues prescribed generally accepted conduct if engaged in by members of different races. And indeed, to members of this court have already stated they cannot conceive of a valid legislative purpose which makes the color of a person's skin. The test of whether his conduct is a criminal offense, the Chief justice stated as his leading point that this court has consistently repudiated these discriminations based on race, that he does not explain the ground of the wrongness. He merely reports that he and his colleagues have rejected that discrimination in the line of cases. But really, you have consistently repudiated those discriminations. Well, clearly not because the court had upheld those distinctions, after all, in Plessy and the judges, by and large, sustained those kinds of discriminations until a slight turn beginning In the 1930s. And so what Warren really meant Was that the judges over the preceding 20 or 30 years had rejected those discriminations. In a rough estimate, we're saying, we're talking about a cohort of 29 judges sitting on the Supreme Court, And just about all of those 29 were willing to reject racial discrimination most of the time. Not all that was quite different from saying that discrimination was categorically wrong, wrong in principle, and still less close have the judges come to explaining how something could be categorically wrong in all instances, virtually regardless of the effects in any case. War noted that the lawyers for Virginia argued that the law in Virginia did not violate the equal protection clause because it bore equally on both races. It barred white people from marrying black people and I am uh black people from marrying white people. Uh huh. And the state here cited a case from the 1880s dealing with the punishment of adultery and fornication in Alabama, where the court essentially made that argument, it satisfies the equal protection of the laws because it bears be clear in both races, but there is a certain sleight of hand here and the part of the chief justice, because he certainly must have known that this was not merely the opinion of the argument made by lawyers in Virginia. This was the judgment of Lyman Trumbull The frame of the 14th Amendment, As he explained to his colleagues why that 14th Amendment would not challenge those laws and miscegenation in the State. It wasn't simply the argument of it was the understanding Of the people who had framed the 14th Amendment. Okay, now, the awareness of that argument or that state of affairs should have obliged the judges to do something. They've done something more strenuous and demanding here and finally supplying the argument. But when we take this omission, what they passed over the sleight of hand, when we take it in its proper setting. When we take note of the alternatives before the court, the depth of the problem reveals itself more clearly and dramatically, I would suggest, as the moral problem it is, consider the problem now arranged in these alternative strands of judgment that were available to the court. The Chief Justice Warren thought he was articulating something novel as a constitutional right. Where could he look for this new constitutional right? He couldn't find it in the text of the Constitution, right lacking any foundation of the text. It's customary to look at the understanding of the men who framed the law. It says Lincoln used to say the intention of the law giver is the law. Well, he couldn't do that, that was against him. Um, but these points of no small importance don't close the problem. Another path of exposition begins with the recognition, of course, that none of us realistic and can claim to know all of the implications that spring from our principles. You know, the life of moral judgment is a life in which we may constantly become aware of implications of our own principles that have gone peter for unnoticed. It's it's not a knock on Lyman Trumbull and Company that he didn't see all the reach of those principles. We can be grateful for what he did in getting the implanting the Principal, the first place. Okay. Um but if you add this thing up, um I suppose, you know, Trumbull and Company could have said they understood that argument that they're making a prudential accommodation with the views of their constituents, as Lincoln said, a passion running deep among the people cannot safely be ignored. And this is one of those they have to they have to recognize and words of that kind could have been set down by the court in making the case in principle and saying Lyman Trumbull did not encompass it, but we submit that is consistent, quite consistent with The understanding contained, the logic contained of the 14th Amendment. Um but when we understand the path that the court took and the path that never seemed to come to light for the judges, we may see them more starkly the choice they made. The judges realized that they could not cite on their side the text of the Constitution. They could not cite the 14th amendment. They could not cite the understanding of the people who framed the 14th amendment. They simply cited the judgment of 29 men who had been on the court. 29 of us decided this way. When the matter is finally posed. In that way, we may earnestly ask Why should the judgments of those 29 be given precedence over the text of the constitution? The understanding of the framers, the understanding of several 100 congressmen and senators who voted for it. If we're not making an argument in principle to explain the principle behind this thing, it was simply counting heads The point of 29 of us over have decided it this way. If we remove from the problem the principle that explained the wrongness, finally, of racial discrimination. If we put that matter entirely out of the picture, On what conceivable ground could we say that this bunch of 29 judges should rightly be given an authority that transcended all of the rest? What is there some magical number? About 29. Nor could it be that these there were more recent judges pronouncing on the more recent cases. Because for the main logic of a constitution is that the principles of the Constitution established in the text, restrains the things that legislatures and legislators and judges in our own time may rightly do. But wanting any other explanation, the possibility must harbor that the only ground for this assertion of authority For the recent band of 29 guys is that the judges, now the scene have a need in their hands, the power to make decisions that are obeyed and have those decisions obey when they disregard text of the constitution, break from their own precedents and depart from the understanding held by the framers of the laws. But when stripped in that way, this was a not making the argument of principle but doing it this way and cleared of legal language. The claim of the judges seems to reduce to the claim brought forth and rejected so tellingly by Rousseau, that power itself cannot be the source of its own justification Or the opinions of those 29 judges prevails because they simply had the power to hand it down. In the case of Brown versus Board of Education. The court could have taken the occasion to explain that that principle and racial discrimination and do something similar to what I've set out down here once again, the right decision was made, but on the grounds that were even more curious and possibly more disturbing, that the reasoning in the case of marriage, because instead of making the appeal to the deep principle of the 14th Amendment, as you probably know, the judges made an appeal to social science. The finding of social science, the Children and more segregated schools were more likely to reject their own blackness and to fall to the acceptance of themselves as members of a lower caste. But the embarrassment of this argument, brought forth by several commentators, was that the social science cited by the court pointed in a direction quite opposite from the conclusion drawn by the court because in the experiments of the sociologist Kenneth clark, it was the Children and the more integrated settings in massachusetts who are more likely to reject their blackness or evince a sense of hurt in the awareness of their race. Then the students in the more segregated settings in the south. And so the variation added by the court here might have been even worse than the performance of loving versus Virginia. The judges could not rely on text or legislative history. They would not engage in the exertion of explaining the principle that made racial discrimination categorically wrong. In all instances, they would lean instead on social science. And when the social science, you know, the findings at odds with their conclusions, the judges would simply declare that they themselves would pronounce on the truths to be gleaned from social science. Even with those truths were at odds with the findings reported by the social scientists themselves. By the time we have laid bare these strands of judgment, it should be clear that whatever else they describe, they do not describe the vocation of jurists, concentrating their learning and their wit. I'm explaining those deep principles that finally govern our judgments, other things that are just or unjust right or wrong. We'll find, in short, a description of power without discipline or restraint, power that feeds on itself and sites power alone as the source of its justification. Recall during the hearings and john roberts, when ted Kennedy was trying to draw john roberts into talk about an effects test. Can we find racial segregation wrong, even if we just produces ill effects and said, didn't they have that in Brown? And of course there were no there's no evidence in Brown about the effect of segregation on the performance of Children in those schools. There's no evidence at all on that question. And apparently ted Kennedy was utterly unaware of the fact that just wasn't contained in Brown versus board. So my pitch here is that the things I've drawn from these cases are often at odds with the prevalent view of what these cases mean or what they've established in our law and what I brought out in these cases runs counter to the caricatures or the cliches that have fixed the meaning of these cases, whether those decisions have been condemned as reactionary or praise this progressive. And either way the reasoning of the judges read closely seems to have faded from our view when the cases have been folded into some grand historical account of what the court had done in different epics or the motives that it might have been driving the judges. The reading of the cases has persistently belied those commentaries, those caricatures, the Marxist with a suspicion of the bourgeois interests of the judges. The new dealer with the suspicions of natural law simply can't give us a faintly plausible rendition of own roberts judgment in U. S. Versus Butler race. We don't know where authority comes to set the wages and prices in the who Zach mills, so we'll tax you and give you back the tax. The taxes were admitted if you accept federal policy. So, as Alan roberts says, they're inviting us to buy back our own freedom. It's like saying, well protects abortion clinics at 100 and remit the tax if you accept these kinds of restraints on abortion, which the court has not allowed, that we can enact. That's that sort of thing. My old teacher leo, Strauss in a lesson now grown familiar, Used to encourage us 1st to understand people as they understood themselves before we launch our own critiques of what they've done or before we presume to speak of their motives. That is an alternative to dealing with their arguments. But to understand the judges understand these judges as they understood themselves, is to show the patients first to attend seriously to the reasons they've given and the way they've shaped their arguments. And I've suggested here that were more likely to avoid a false account. If we start with an assumption that seems to run counter to the fashions of our day, instead of locating the judge in his historical epic or looking for his class interests. I suggest we start with the assumption that the reasons he saw it carefully to assemble, they still be as plausible or implausible as they were when he had set them down, his colleagues in dissent. We're free to be unpersuaded at the time and to explain why those reasons failed to persuade we're as capable of entering that conversation. I submit on those terms as the judges were when they listen to the arguments that sought to form their own judgments. But if that's the case, we could begin With the understanding that we're engaged in an ongoing conversation. The things said by Sutherland in the 1930s are still in play. That conversation can genuinely take place across the generations. In the same way that we read Plato and Aristotle, because we think they have something to tell us. Something that illuminates the problem of our politics. We may read the opinions in these cases as though they contain reasons or understandings that can finally command our judgments as validly today as they did when they're set down. Remember, Lincoln famously said in the cooper Union speech, talking about the founders, that the founders understood the situation, our problem as well as or better than we understand it today. No, the founders didn't anticipate the problem of research on embryonic stem cells or the complications brought by emails and computers, but they understood that any device, any act, anything we could name, a pencil, a car carriage could be directed to a wrongful purpose. The founders understood that people could seek to relieve their own conditions or dissolve their own predicaments at the expense of others are by sacrificing the lives of innocent people. The very notion of a constitution implies that one finds a certain wisdom in being ruled by an earlier generation of statesmen with uncommon judgment. A constitution means that we'd constrained the exercise of power by people known to us today because of certain impediments and disciplines put into place by rather uncommon men with the furnishings of mine shown by James, wilson, alexander Hamilton. And that means it affected in the most practical way. We'd rather take our chances with Hamilton and Wilson, even when it means restraining the decisions made by ruth, Ginsburg, or David, Souter or Harry, Reid and mitch McConnell. And yet none of that makes much sense unless we suppose there's a political truth or wisdom about the way we live that can hold across the generations, that's possible to have that conversation across the generations about the terms of principle in which we live. The essential question that conversation has always been about the grounds on which we form our judgements about the things that are just or unjust and the circumstances or the instances may have altered. But the principles remain the same. Chesterton once remarked that the purpose of education was to make young people old or to put it in other ways. He said it delivers young people from the servitude of being Children of their own age. Yeah. And at that day and we might say once again that we could show a better judgment if we began at least taking seriously the possibility that those states been the judges of an earlier time. Even those judges have been swept aside by the sweep of history that even they may have understood our current situation as well as we understand it ourselves. Thanks very much. Mhm. Yeah. Mhm. Yeah. Yeah. Yeah. Yeah. Yeah mm mm