Judge Dennis Davis
Judge Dennis Davis Interviews David Cole on the American Constitution
Judge Dennis Davis - An interview with David Cole on the American Constitution
- Right, welcome to everybody. It’s my great delight to welcome Professor David Cole to talk to us about the American Constitution. I first met David when I was visiting a professor at Georgetown, and he was the Honorary George J. Mitchell Professor of Public Policy at that university. He has become the National Legal Director of the American Civil Liberties Union. And apart from that, because such a distinguished academic, has published very widely two books, which have always caught my eye, “Justice at War,” and particularly one that I have favoured to mine, “Engines of Liberty,” published a few years ago called “The Power of the Citizen.” I think a book that given where we all are now is well worth having a reread for all sorts of reasons. David, thank you very much. When I was asked would I do something on the American Constitution, I told Trudy Gold, “You must be mad.” And Jeffrey Jia, our dear friend, came up with a genius idea to actually suggest you. And of course, apart from your books, people can read you regularly in the press. And in my case, certainly “New York Review Of Books.” So thank you so much for giving us of your time. I wonder whether we could start with just talking a little bit about the nature, so the history of the Federal Constitution, which is often misunderstood by many.
Sure. And I’m speaking to you from my office at the American Civil Liberties Union in New York.
[Dennis] Wow.
Those who have very, very good vision might be able to tell that, and out my window, I see the harbour. I’m at the very bottom of Manhattan, and I can see the Statue of Liberty out there. And so I feel that my job here at the ACLU is when I leave every day, if the statue is still standing, I haven’t screwed up too badly. Our job at the ACLU is to defend the Bill of Rights, part of the Constitution. My job has been both defending the Bill of Rights, but also teaching constitutional law, as you indicated, for many decades now. And I think what people often don’t understand is how much our Constitution has changed over the course of our nation’s history. At the outset, it did not provide rights to very many people. Essentially, white male property owners had the right to vote. Slaves were 3/5, counted as 3/5 of a person, but did not have any liberties at all. Women did not have the right to vote. And the Constitution’s protections did not actually apply to the states, to what state governments might do to their citizens. It only applied and only restricted what the federal government could do. And at the outset of our Constitution, and our nation, the federal government was a pretty small actor. There actually wasn’t federal law enforcement. We didn’t have a justice department. It was a very, very small potatoes thing. And the principle actors that governed citizens’ lives were the states. And the Federal Constitution didn’t apply to the states.
So, the biggest change in the history of the Constitution was the Civil War. And the fighting of the Civil War led to what we call the Civil War Amendments, which for the first time extended the rights of equal protection to people. There were no rights of equal protection prior to the Civil War and the Civil War Amendments, and also extended the right to due process against state actors. So the shift is both a recognition of equality, a recognition that African, the newly freed slaves have full rights of citizenship, an extension of the right to vote to them, the male ones anyway, because women still didn’t have the right to vote, but also this notion that the Constitution, a document that was designed to establish and limit the federal government also should limit, with respect to rights, the state governments. So that really transformed the Constitution from something that was of marginal relevance, given that the federal government didn’t play that big a role in people’s lives, into something that governs all government in the United States, state, local, and federal. So that was, I think, the biggest change.
Can I just ask you on that, just if I could switch to the contemporary for a moment. I mean, hasn’t that always been a big problem between something like in American politics, between how much the federal government should be doing as opposed to the state governments? Does that go back all that way?
Absolutely. So one of the big themes in American constitutional law is what we call federalism, right? We are a nation of states. And the idea was the states, the pre-existing states, had plenary authority by virtue of being sovereigns to do whatever they think is in the interest of their people. They’re not bound by the Federal Constitution. The Federal Constitution creates the federal government, but creates it as a government of limited powers, limited powers, so it doesn’t have this plenary sovereign authority to regulate. In order for the federal government to regulate, for Congress to pass a law that regulates conduct of citizens, it has to point to a particular provision in the Constitution that outlines the areas where Congress can act. It can establish an Army in a Navy, it can impose taxes, it can regulate commerce among the states. But if you’re talking about the rules that govern a business in a particular state, the original understanding was Congress has no power to regulate that. The states can regulate that, but the Congress has no authority, only where you’re talking about interstate commerce does the federal government have any role to play. And so a lot of the early cases were constitutional cases, were cases brought by businesses, challenging federal law on the ground that it exceeded Congress’ power, that they couldn’t be regulated by Congress. They could only be regulated by the states. And of course, the state governments are smaller, easier to capture, and the like. And for many years, the court did in fact, agree with that, and said the Commerce Clause is limited to truly interstate commerce.
But over time, that limitation was challenged, and it was really challenged by facts on the ground. It was challenged by the fact that our nation, which began as a very agrarian and local nation, no railroads, no roads, very hard to travel, and so most business was local. It transformed, obviously, through the industrial Revolution, through the trains and the like, into a truly interstate economy in which the state lines don’t really mean very much. And so over time, the court grudgingly recognised that virtually all commerce has an effect on the interstate economy because we live in one integrated national economy. We no longer live in a group of 13 fiefdoms, but instead in one interstate economy. And that basically gave Congress very, very broad powers to regulate in the public interest, because virtually everything affects commerce. Now, there are some constraints on that, but that was a huge battle. And a related battle was the first real constitutional rights protections that the court imposed were, again, on behalf of businesses complaining about being regulated. So when Congress tried to regulate them, they said, “Congress can’t regulate us because business is local and Congress doesn’t have power. It’s not interstate commerce.” When the states then tried to regulate them, they said, “Well, oh, the States can’t regulate us either because under the Due Process Clause of the Constitution, this provision that was adopted in the Civil War Amendments, that protects liberty, and it protects in particular the liberty of contract.” And so when states pass laws that, for example, try to regulate how businesses can sell to consumers or how businesses can treat their workers, the Supreme Court, for many, many years, adopted the business owner’s argument that that intruded on their liberty of contract and was unconstitutional. Again, over time, that was rejected. It was really, again, facts on the ground. The Great Depression of 1929, the New Deal, FDR, Franklin Delano Roosevelt’s New Deal was an effort to really respond to incredible economic privation. And the argument that somehow this notion of a liberty of contract precluded government from protecting workers and consumers from concentrated power of businesses was rejected. And the court ultimately said, “No.”
In fact, Congress has pretty broad, Congress and the states have broadly way to regulate social and economic business matters without constitutional constraints. So that was all around from the progressive era around turn of the century, 1900 to about the 1930s, that was the big battles, and really was a transformation in the way the Constitution was interpreted. And then in the wake of that, what the court started doing was, instead of overseeing these economic laws, which it said were now basically that’s Congress’s call, it started actually for the, first time really, robustly enforcing the individual rights provisions of the Bill of Rights. And first, by extending them to the states and saying, when it says, “Congress shall make no law abridging freedom of speech in the First Amendment, that applies to the states as well as Congress.” And same thing with the rights of privacy and the rights to fair trial and the right to a lawyer. And all of those rights, the court interpreted as applying to states, and then particularly in the ‘50s and '60s, robustly interpreted to provide protections to individuals from the actions of the collective.
So, out of interest aid, I mean, obviously, you’re referring to that seminal case of Lochner in the, just right-
The contract.
For those of us who, those people listening who probably have done some American constitutional law. I’m just curious just on that. There’s so many points I think we could discuss would take hours. But let me try to truncate this. It’s interesting that, basically, the court, as you say, the courts began to embrace a more interventionist approach to the economy, not a libertarian approach, but I suppose when thinking about 2023, the question really arises is, does this really depend on the composition of the bench?
Yeah. Well, I mean, to some degree, absolutely.
Yes. I know it doesn’t completely. It’d be absurd for me as a sitting judge to say-
[David] Exactly.
I can make it as I go along.
Yes.
But I mean, these are major ideological ruptures, as it were. And that’s why I’m particularly interested.
They they are. But I mean, so, for example, when the court overturned Lochner.
[Dennis] Yes.
And started to recognise that states and federal government had broad power to regulate business, the personnel on the court didn’t change, but the court, the votes on the court changed. But that was, I think, in response to tremendous, tremendous economic and political pressure on the court. You had the Great Depression, you had bread lines, huge unemployment, and people committing suicide because they lost all their life savings. And it was a extraordinary time, and people calling on the government, “We need the government to act, to protect us. We cannot rely on the market to protect us.” This is what the market led to was the Great Depression. That’s what laissez-faire capitalism led to. So that was one pressure. and then there was a huge political pressure, which is FDR, one of the most popular presidents of all time, he’s called upon to act to protect people and he passes law after law. And the court’s striking those laws down on these on the Lochner era principles, and he threatens to pack the court. He says, “Well, I think some of these justices are too old and they have too much work. And so I’m going to appoint, I think Congress should pass a law that gives me the authority to appoint another justice for every justice over age X.”
I can’t remember whether it was 65 or 70 or whatever, but it would have had the effect of allowing him to politically change the character of the court. That did not succeed. That Congress did not enact that law, notwithstanding how unpopular the court was, notwithstanding how popular FDR was, notwithstanding how necessary these laws were. But what did change was the courts, the votes on the court. And they shifted, sometimes it’s called the shift in time that saved nine, because there were nine justices, and FDR would’ve increased it to something like 15 justices. But one justice shifted. It was, at that point, they upheld all of these laws, and then a bunch of these justices did go off the court, and FDR was able to appoint their successor. So, obviously, the personnel on the court matters to a significant degree, but not, I mean-
I lost you. God, I spent a whole day in court today on computer, and nothing ever went wrong. David, sorry, I think I missed your last sentence or two when you were talking.
Well, the last sentence was just to say, yes, personnel matters on courts, but the courts are constrained by other forces other than their own personal judgments. They’re constrained by precedent, constrained by having to act as judges, constrained by political and economic forces in the world at large. And I think that, as much as anything else, explains the shifts over time. And to some degree, the shifts over time, even who’s on the court, right? Is a reflection of shifts in the polity and the polity’s views of what they need from constitutional law, because that people vote for the presidents who will appoint the justices, who will do the things that they want to do. That’s why President Trump’s election led to the overturning of Roe v. Wade and taking away the right to abortion because people organised and advocated and voted on that issue, abortion, got somebody in power who promised to try to overturn Roe v. Wade, and he did.
I’m going to come back to that in a moment, but can I just track back a moment with another strain that you raised in your early introductory remarks? There’s, of course, the introduction of the Equal Protection Clause Amendment, and that’s particularly interesting because last week I did a lecture on Steven Spielberg’s “Lincoln” film, which, of course, deals with that particular point. And I suppose the point which is particularly interesting to me is clearly the abolition slavery was one thing, but it seems to have taken an extraordinary amount of time to vindicate, and maybe it hasn’t happened, I’d be interested in your view, the equal protection Clause in relation to, let’s say, African Americans and other diverse groups.
Oh, yeah. Well, as you well know in South Africa, it’s not easy to-
That’s true.
It’s not easy to eradicate an entire system of subordination that has lasted for a century or more. And so, yeah, it took, it is a work in progress to be sure. I mean, the adoption of the Equal Protection Clause was not self-executing, it demanded equal protection, but it initially, that was interpreted to mean separate but equal. So we had a segregated south, and much of the north was also segregated. It wasn’t until 1954, in Brown v. Board of Education, that the court ruled that separate but equal, separate is inherently unequal and outlawed racial segregation. And then actually implementing, it’s one thing to declare that, but actually implementing that and eradicating a system in which you have Black schools and white schools and Black bathrooms and white bathrooms and Black swimming pools and white swimming pools, or white swimming pools and no Black swimming pools took decades and decades. And we no longer have formal segregation in the United States, but we still have tremendous de facto segregation, economic segregation. And so many, many children still are educated and many children of colour are educated in schools that are virtually all students of colour. And many white kids are either live in white enclave suburbs, or if they don’t, their parents send them to private schools that are largely white. So it continues to be a huge, huge challenge. And one that we haven’t come close to achieving equality.
We have, I think, gotten rid of some of many of the worst forms of inequality, and the changes, I think sometimes people say, “Oh, nothing has changed. We haven’t made any progress.” I think that’s really wrong. I read a book, fantastic book called “Devil in the Grove,” about Thurgood Marshall, who was the person who litigated Brown v. Board of Education, and ultimately at the NAACP Legal Defence Fund, the leading racial justice organisation in the country, ultimately became a Supreme Court Justice. But this book is about his much less well-known work, defending Black defendants in criminal cases in the South. And it opens with him successfully getting a couple of Black people off of a criminal charge that arose out of a protest. And he, amazingly, in a southern courtroom, southern jury, where racial epithets are perfectly permissible in court and are used regularly, he nonetheless gets these guys off. What that leads to is that he is on his way from the courthouse to his hotel, he is pulled off by police and delivered to a mob that is going to lynch him, going to lynch him for having gotten these Black defendants off of a charge of like disorderly conduct or something like that. They were going to lynch him. And they would’ve lynched him, except that some of his colleagues, white, showed up very shortly after the police brought and delivered him. And they weren’t willing to lynch him and three white guys. And so the lynching mob fell apart, but the notion that an advocate for civil rights would face lynching for what he did in the 1950s, right? I mean, I was born in the 1950s. That is not on the radar screen today, right? That is not what anyone faces today. So we have made some progress, but we still have tremendous, tremendous disparities. And this past term, the Supreme Court interpreted the Equal Protection Clause to be an obstacle to achieving greater equality in striking down affirmative action in education.
Just on that, David, I can’t help, I wasn’t going to ask this question, but since you raised it, can’t not, what is the effect of that opinion from the Supreme Court going to be for universities going forward?
So that’s remains to be seen. This is going to be the first, this coming class will be the first class in which schools have been told you cannot give even a thumbs up to someone because of their membership in a disadvantaged racial minority. And so we’ll see how much that affects the results. The one thing the court did in that decision, which I think may will mitigate some of the exclusionary effects, is Chief Justice Roberts writes, at the very end of the opinion, he says, “You can’t use race as a checkbox. but this does not stop universities from asking students to write essays in which they talk about how their racial upbringing and identity may contribute in some way to diversity, to shows their overcoming adversity. If they relate it to something nonracial in an individualised way, schools can take that into account.” He said, “Now, this can’t be just a substitute.” Suddenly, everyone’s, instead of checking a box, everyone’s writing an essay. I’m not sure how different that really is. And, and we’ll see to what extent that is able to maintain some meaningful representation in our schools. I think a lot of the schools are really committed to doing it, but a lot of the schools are not. And so those that aren’t will now just use the decision as an excuse to have a much more exclusionary policies.
Now, just to change the subject for a moment, we were talking before we started this, you mentioned you’re still teaching the First Amendment, and no comparative lawyer can resist asking an expert American lawyer just to explain the contours of the First Amendment, because those of us that come from a different jurisdiction often wonder whether in fact we have to use a different test to get a balance right between, let’s say, hate speech on the one hand and free speech on the other.
[David] Yeah.
So just interested in your views about the First Amendment.
Yeah. I’m a big believer in the First Amendment. And I think our First Amendment tradition is one that has been hard fought. It was not given to us by the framers of the Constitution. It was fought for by group after group that was targeted by governments because of their political views, their political associations. So, starting with unions, going to anarchists, communists, civil rights activists. And over time, the court developed a very robust conception of First Amendment protection that basically says, “You cannot be punished because of what you say, unless what you say falls into some very circumscribed categorical exceptions to the First Amendment.” So, fighting words or speech that is intended and likely to produce imminent Wallace action is another category, or obscenity is a category rendered irrelevant by the obscenity on the internet. But threats are an exception. Harassment, racial harassment is essentially an exception. But no, but hate speech is not in our jurisprudence. And I think the argument for that is, how in the world do you define hate speech? How is an argument against affirmative action that says, well, what affirmative action does is it allows certain people of certain races to get in who don’t have the same qualifications as people of other races. Is that hate speech? That’s harmful. That’s demeaning. Or is it only the use of epithets? If it’s only the use of epithets, which epithets? The N word, for example, which is used by every rap performer alive today, should that all be prohibited? Or is it only prohibited when you’re white, not when you’re Black?
So how you define hate speech, extraordinarily difficult given that it’s going to be defined by the majority. And that means it’s not going to be that likely, it’s not likely to be very sensitive to the concerns of the minority groups who you would want to protect in the first place. And so do we really trust, for example, the Trump Administration to define what constitutes hate speech or a Republican legislature in Florida to define what constitutes hate speech? I mean, right now in Florida, we are challenging, the ACLU is challenging a law passed by Ron DeSantis and the Florida legislature. It’s called the Stop Woke Act. And it basically says that in schools from K through universities, state universities, you cannot teach certain ideas. Why? Because they essentially constitute hate speech. The ideas are things like that people are guilty because of their race. They have some collective guilt. Or that people should not be judged only on the basis of individual merit, but you can consider race. Those are treated by Florida’s legislature as a form of hate speech, which they are now prohibiting. We’ve challenged it, and the courts have struck it down. And then the last thing I would say is I just see no evidence. There’s lots of countries that have hate speech laws. I see no evidence, none, that it reduces discriminatory animus or conduct in those countries. I don’t think Europe is any… Europe has hate speech laws. I don’t think there is any less racial animus and racial discrimination in Europe than there is in the United States. So, is it worth the candle, how do you do it, and do you trust the majority to get it right when it’s ultimately about protecting the moonlight?
That’s a very powerful justification, and I have a great deal of sympathy with it because, obviously, I’ve had to deal myself and colleagues of mine with precisely these questions in South Africa, and our constitutional court, and we can deal with this separate occasion, has had to read the act completely differently from what I think was initially intended precisely in order to get to the balance that you’re talking about. Otherwise, you get to the point that you’re already shutting off all sorts of speech.
[David] Yeah.
But can I just ask this, is it not going to be more pressure on the courts than perhaps even the ACLU in relation to the, I don’t want to get into the politics of the current situation, but just in terms of the fact that we all know it’s common cause that there’ve been significant rises in anti-Semitism and in Islamophobia. I mean, is this not going to put pressure on the courts to deal with this in one or other way? Or will they just keep on approaching it in the way you suggested?
Well, I think I, there will be pressure, but I think there a couple things I would say about that. Saying something anti-Semitic or saying something that is Islamophobic is protected by the Constitution. That means the government can’t put you in jail or deprive you of some benefit because you have a political view that it disagrees with. However, however, one of the exceptions I identified was the exception for racial harassment, sexual harassment, which can be in the form of words, which in an employment setting or an educational setting, if the words are directed at a particular individual in a way that is predicated on their race or sex or religion, so that would include anti-Semitism and Islamophobic, in a way that denies them equal opportunity to be in the workforce or equal access to education, that can be and is prohibited by our laws. So where you have that anti-Semitic speech or Islamophobic speech directed at an individual, schools can take action and in fact are required to take action against the perpetrator. But simply saying something, if I say something like the phrase that it gets a lot of, is very, very controversial right now is from the river to the sea, right? Saying that in at a protest, not directed at anybody, that’s protected speech. It’s not harassment, it’s not targeted at a particular individual. I mean, the ACLU is actually famous or infamous, depending on how you look at it, for a case we did back in the 1970s where we defended the Nazi party-
[Dennis] Geki,
That sought to march in Skokie, a place where many, many, a place very close to my hometown of Evanston, Illinois, where many Holocaust survivors lived. And the argument was it’s hate speech. It’s targeted at this group. And the courts said, “No, you can’t. They have the right to speak.” They don’t have the right to engage in targeted harassment of an individual in a particular environment like employment or education, but in the public sphere, we protect even that hateful speech. And we made very clear when we represent, we have no truck with the Nazis. We abhor everything that they stand for. But we think it’s really dangerous to empower the government to start picking and choosing which views can be articulated in the public discourse and which views cannot based on whose ox is gored and whether a group is vulnerable or not and the like.
So I wonder if I can then, well, let me put it this, let me do it slightly different. Well, yeah, I was going to ask you. I mean, Donald Trump seems to be taking a defence that, well, he could say what he bloody well liked about the elections and rouse people, and that was free speech. I mean, it seems to me that that’s the prefiguring of his defence. Now, does that, I mean, is there justification for that argument?
Well, so you mean leading up to January 6th?
Yes. Yes. So January 6th comes, and he says, “Well, yes, I said the election was stolen,” and so and so forth, “but I’m entitled to do that. That’s my opinion.”
Yeah, I think, yeah. I don’t think the United States, the Justice Department, which is prosecuting him for his efforts to interfere with the peaceful transition of power in various fraudulent ways. They concede in the first page of their indictment against him. He has every right to say whatever he wants about the election, et cetera. What he can’t do and what he’s being prosecuted for is-
Sorry, I just need to get my dogs over now in a second.
Okay. This is true lockdown university.
They were interfering with my hearing this morning as well. Sorry.
Yeah. So the distinction is, yes, president Trump can say what he wants, but he can’t take concrete action, which he did, to try to subvert the results in particular states by getting, blocking the votes from being counted, urging people to ignore the counts and create alternate electors, urging other state folks to find votes to get him to over the top. That’s what. it’s the conduct, not the speech. He can say, I think the speech, “The election was stolen,” you can’t be held accountable for that, but that’s not what he’s being indicted for.
Of course. Now I understand that. I just want to make a thing. Two further questions before I turn to questions that might be put by people listening to us. The first is the abortion case, Dobbs, raise the profound question, I suppose, for many, well, what security do people have stare decisis will work, will continue to work?
Yeah, well, it’s obviously not airtight.
Yes.
But it never has been airtight, right? I mean, so Brown v. Board of Education, which we talked about earlier, that overturned a former precedent called Plessy v. Ferguson that separate but equal is permissible under the Equal Protection Clause. So you can go both ways in terms of overturning prior precedent. And the court has said that stare decisis is a absolutely critical and important value. And in 99% of the cases, stare decisis applies. Courts are not free to just start afresh. They have to abide by the precedents that have been ruled before. And only in extraordinary circumstances do they overturn prior precedents. The majority in Dobbs, the abortion case, the six to three majority inflected by the three Trump appointees made possible by the three Trump appointees said this was an area where the exception is warranted because the decision was egregiously wrong when it was decided. There was no, from an originalist understanding of the Due Process Clause of the Constitution, that provision that we talked about earlier, that’s the predicate for the Right to Abortion, it has been interpreted over time to protect certain core personal decisions like who you marry, whether you have sex with somebody, a consenting adult, how you raise your kids, and whether you use contraception and whether you terminate a pregnancy. Those were all seen as part of that right. The court said, “No, that was the wrong way to interpret it. That was an evolutionary way of interpreting that provision. We should go back to the original understanding of that provision.” And we see no evidence that when that provision was adopted, anyone thought that they were protecting abortion. Because at the time, abortion was actually criminally prohibited in many places. And there’s nobody said, “Hey, when we pass this, abortion is going to be outlawed.” So that was the argument. Roe v. Wade, the decision that protected abortion has been the bete noir of the right for a very long time.
[Dennis] Yeah.
Including the religious fundamentalists, right? But also including the conservative judicial interpreters who say it’s that evolutionary interpretation of the Constitution is wrong and we should go to an originalist interpretation. And so it was the victory of originalism in that case that justified the overturning of Roe v. Wade. What is so, bedevilling about it and I think wrong about it is that originalism generally is not the method by which we have interpreted the Constitution, and the constitutional law has accreted over two centuries, hundreds and hundreds and hundreds of decisions, none of which used originalism, that used instead an evolutionary common law method of interpreting the Constitution by looking at the cases that were decided before, drawing principles from those cases, applying them to the facts at hand, and the Constitution develops over time. That’s the way that we have interpreted the Constitution. And Roe v. Wade was absolutely right based on that way of interpreting the Constitution. And that is still the way that we interpret 95% of the Constitution, but you have a number of justices on the court who are ideologically committed to originalism and are pushing it in a variety of places, not across the board, not in most cases, but in cases where a cynic would say in cases where it allows them to overturn decisions that they don’t like.
Yeah. So there are two final questions. The one would be, in many countries, my own included, if there was a sufficient, not consensus, but support, assuming a court actually did set aside the abortion provisions in South Africa, there’d probably be a situation where you could probably get a 2/3 majority to amend the Constitution. In your case, it’s almost impossible to do that.
Yeah.
Does that make this Constitution problematic 'cause it’s really outdated in relation to that?
Well, it makes it very problematic if you have a court that insists on interpreting it as meaning nothing more than what it meant 200 years ago, right?
[Dennis] Yeah.
Because then, it really does become a straitjacket. And the argument that, “Well, if you don’t like it, you can change it,” is not very persuasive when only 27 constitutional amendments have ever been enacted, and the first 10 were all in one fell swoop as part of the initial adoption. So it’s very, very hard to amend the Constitution. And in a deeply partisan equally divided country, you can’t get the 2/3 that you need to get to a constitutional amendment. It’s just not possible. So that is a real problem. And that I think is one of the reasons that’s why, actually, most of the justices, virtually all of the justices that have served on the Supreme Court have applied an evolutionary common law interpretation of the Constitution that allows it to be a framework that can account for the changes in times and changes in mores rather than a straitjacket. The more it’s read like a straitjacket, the more it becomes not really sustainable in our modern world. So I think that is a reality on the ground that will greatly restrict the number of areas where the court really applies an originalist interpretation in a serious way, but that remains to be seen 'cause this is the first court that has had any significant number of originalists on it. I mean, we’ve had many, many courts with many, many different people, very, very few have subscribed to originalism, but a but a whole bunch of them on the court today do to one degree or another.
My final question is and I can’t not ask you this, I mean, as one of country’s most distinguished constitutional lawyers and ACLU, are you anxious about the future of democracy given what Trump’s been talking about? There’s so much sort of a massive literature being generated now about the problems of him taking over.
Yeah. Yeah.
[Dennis] Yeah.
How can you not be anxious-
[Dennis] Yeah.
On the one hand? So, absolutely. To me, it’s a just remarkable that someone who acted the way he did for four years, who acted the way he did when he lost, clearly lost the election, and who continues to act the way he does, essentially like a child, nonetheless, has substantial support among the American people. That is scary. That is a scary fact about democracy. It just is. And we’re not the only country. Look at what just happened in Argentina. Democracy doesn’t necessarily save you from dictators, essentially, and from fascists and the like, we have to save ourselves. So I’m super anxious about that. On the other hand, I will say I came to the ACLU from Georgetown to head up the legal department about 10 days before Trump took office. And we have never been busier than in that four years that Trump was in office. We filed over 400 legal actions against Trump, and we won many, many of those lawsuits because he was so outside of the realm of the acceptable that courts, including many Republican judges, ruled against him. And he lost more cases in the federal courts than any former president. And the American people stood up. The American people came together, stood up, engaged politically in all sorts of ways to push back against Donald Trump through civil society organisations and the like. And we have a very robust civil society here. And if we are saved, I mean, God help us, but if Donald Trump does in fact get elected again, if we’re going to be saved, it’s going to be on the backs of us, on the backs of the people working through civil society organisations to stand up for the things that we believe in. And only only time will tell, but, yeah, I’m definitely anxious.
Q&A and Comments:
- Okay. There are a lot of questions I want to get onto them. Some of them have been answered, so when I don’t repeat it, it’s because it really has come up in conversation subsequently to posting. I do apologise. Yes, one can certainly consider doing a session on the UK’s unwritten Constitution in Israel’s. I think we’ve spoken about stare decisis.
Q - Then Shelley says, “What about the tension in the First Amendment between no establishment of religion, but the government and the freedom of religion for individuals? Can they often clash.”
A - They do. They absolutely do. And historically, the court said there’s some play in the joint that some things that are required by the Free Exercise Clause don’t violate the Establishment Clause and the like. What what you are seeing, right? And we had for a long time a fairly robust understanding of the Establishment Clause, a separation of church and state that looked very sceptically on the state intermingling with religion, supporting religion directly and the like. The current court, the conservatives on the current court have a number of agenda items. One of the top agenda items is to weaken the Establishment Clause and strengthen the Free Exercise Clause by interpreting of the Establishment Clause not to bar states from providing aid to religious schools and the like, and interpreting the Free Exercise Clause, in many instances, to require states to support religious education when they are supporting secular education. And that is a real reversal under traditional understanding of the Establishment Clause and the Free Exercise Clause. And their view, there’s a lot of Catholics on the court, a lot of religious folks on the court, I think they feel like religion is under attack and we’re in a very secular country. No one goes to church anymore. And so they’re very, very sensitive to… And their view is that the separation of church and state view actually discriminated against religion, treated religion worse than non-religious entities and enterprises. So I think we’re going to see more of that. And I think that’s very worrying.
Q - Somebody asked, “To get American citizenship, is one required to be tested on the American Constitution?”
A - well, yes and no. No, if you’re born here. If you’re born here, we have citizenship by birth and you could never learn a thing about the Constitution and you would be a citizen, and you could reject every single provision of the Constitution, and you would still have a right to be a citizen. However, to be naturalised, that is people who come and immigrate to the country and then seek to become a citizen, they do have to take a test in which they show that they understand the Constitution. It’s not terribly demanding. It’s like a driver’s licence test, more than anything else. But there is a requirement that you do demonstrate that you understand the basic principles of our Constitution.
Q - Susan also disagrees with you, David, regarding equal justice in the U.S. I’m not going to read the whole thing, but she says, “There are far too many people in the U.S. who still feel entitled to put their hands on Black men, women, and children at will.” And she cites, “Of course, the sheriff in a Mississippi county court breaking into someone’s home middle night and torturing people for a very long time. It’s not isolated.” So, I mean, I think you answered that actually by saying these are very slow processes. If you want to say more?
A - No, I think, I mean, I think, yeah, it’s very slow processes. I think what we have done for the most part is we have made it clear. You cannot be overtly racist. You cannot have Blacks only, whites only signs on your door. What we have not done is dealt with the systemic, the legacy of centuries of inequality in a way that gives many African Americans a truly equal opportunity to succeed in our society. And that continues to be… That’s the Black Lives Matter Movement, the Reparations Movement, all of that is part is part of that effort to undo systemic racism, but systems are hard to undo.
Q - Barry asks, “Surely Nazis white supremacists and other similar dangerous groups should be banned.”
A - Surely, surely. No, I mean, so the question is, I think people have had that view over the course of our history, and they didn’t ban white supremacists. Who’d they ban? They banned communists, they banned anarchists, they banned unions, they banned leftists, for the most part. And then over time, as the Civil Rights Movement got moved forward, there were efforts to go after white supremacists because white supremacists had become this kind of a minority. You couldn’t be an openly white supremacist in the United States. It was very, very socially rejected. And so they became a minority. And then there were efforts to go after them for being white supremacists. And the court has said, “No, Going down that road is dangerous.” It gives government, it gives the majority the power to decide what views were going to allow to be said and what views were not going to allow to be said, and that is a dangerous power to give to a government, number one. And number two, how did women get the right to vote? How did African Americans achieve some measures of equality and get rid of racial segregation by using their First Amendment protections, right? By using the freedom of speech and the freedom of association. And so if you give them… It is the tool that vulnerable groups use. How did gay and lesbian folks get equal rights and dignity? By engaging, by speaking out, by associating, by using their First Amendment rights. So if you give the majority, in the name of fighting white supremacists and other people we don’t like, if you give the government the power to say who’s okay and who’s not, it’s going to be vulnerable groups that are going to be targeted. And it’s often going to be vulnerable groups that you think should be able to use their First Amendment rights to achieve some measure of equality, not just white supremacists.
Q - Given the time, I’m going to edit some of these questions. But here’s an interesting one, which as I indicated to you when we spoke earlier, David, people some people who do know a bit about the law because Paul has said, “It’s been my understanding that Roe v. Wade was based in the constitutional right of privacy, which I believe is an unenumerated right?” Can you discuss this?
A - So one view of privacy is that it is an unenumerated right. There’s a provision in the Constitution. The Ninth Amendment to the Constitution says that all rights, not otherwise specified here, are reserved to the people. What does that mean, right? What the heck does that mean? So some people said that meant that they were humble. They felt like, well, we may not be getting all the rights in our list here, so we want to leave it open, we want to leave it open for unenumerated rights to be developed. And there are people who may take the Ninth Amendment as the predicate for the ability of courts to recognise rights that are not explicitly set forth in the Constitution. But that was one justice’s view of actually the right to contraception. But I think the right to abortion is more fundamentally founded on the provision of the Constitution that prohibits the government from denying people their liberty without due process of law. And that requires you to define liberty. And as I said earlier, liberty has been defined over time to include fundamental personal decisions that ought to be left to people, not given to legislatures. Like decisions about your family, your body, your health, when you have kids, who you have sex with, who you marry, all those sorts of things.
Quite a lot of questions one way or another about Religionism, but I’m not going to go there simply 'cause of time. And I’m going to ask you the one final question, which is interesting. Please comment, this is from Sherry, on the Electoral College as an anti-democratic institution.
Oh, yes.
[Dennis] And also perhaps the U.S. Senate as an anti-democratic institution.
Yeah. Well, so just on originalism, I wrote a piece in the “New York Review of books.”
[Dennis] Yeah.
About six months ago called, I think it’s called “Originalism’s Charade” or something like that.
[Dennis] Yes.
It’s originalism is in the title, and it’s a very quick takedown of originalism.
I would recommend that highly to people who are interested in that.
Yeah, yeah. On the question of the anti-Democratic character of our Constitution, it is a huge problem. The Electoral College and the Senate. And it really stems from this decision at the outset to give every state two senators, which then has the effect of when the states have very, very divergent populations of an unrepresentative senate. So a political scientists say by 2040, 2040, 70% of Americans will be represented by 30% of the Senate, 70% of Americans will be represented by 30%. That is all the Americans that live in the big states, on the urban states, on the coasts, they’ll have 30% of the votes, and 30% of Americans, those who live in the big rural areas, will have 70% of the votes. That is not sustainable in a democracy. And what’s worse, that provision of the Constitution that say every state gets two senators, not only is it hard to amend the Constitution, but that provision says it can’t be amended.
Yeah.
Even if you could get the votes. So the only way to change that is going to be through a Constitutional Convention. And then we can take on the Electoral College, which is also a problem for many complicated reasons.
David, thank you very much. This is an extraordinary primer on American Constitution Law in general, and Bill of Rights in particular. Thank you so, so much for being so generous with your time.
Well, thank you for all the excellent questions, and always a pleasure to chat.
We’ll get you back on the other point, which I’ve said to you later about the Comparative Constitution. Thank you so much, and thank you to everybody for excellent questions. Take care and good evening.