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For more than a decade the Hoover Institution has been producing Uncommon Knowledge with Peter Robinson, a series hosted by Hoover fellow Peter Robinson as an outlet for political leaders, scholars, journalists, and today’s big thinkers to share their views with the world. Guests have included a host of famous figures, including Paul Ryan, Henry Kissinger, Antonin Scalia, Rupert Murdoch, Newt Gingrich, and Christopher Hitchens, along with Hoover fellows such as Condoleezza Rice and George Shultz.

Uncommon Knowledge takes fascinating, accomplished guests, then sits them down with me to talk about the issues of the day,” says Robinson, an author and former speechwriter for President Reagan. “Unhurried, civil, thoughtful, and informed conversation– that’s what we produce. And there isn’t all that much of it around these days.”

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September 27, 2002 | Recorded on September 27, 2002

OUT FOR A CONSTITUTIONAL: The Supreme Court and the Constitution

The Supreme Court has the final authority on all matters of law under the U.S. Constitution. But what legal philosophy should the Supreme Court use to reach its decisions? Should the Court merely hand down rules based on the text of a fixed, or "dead," Constitution? Or should the Court apply standards that are based on interpretations of a "living" Constitution that evolves as our society changes? These fundamentally different approaches to constitutional law have created a rift with the current Supreme Court. How serious is this rift? Who's right? And to what extent are these competing arguments merely covers for ideological positions?

Audio recording of “Out for a Constitutional” (26:48)


Peter Robinson: Today on Uncommon Knowledge: wanted, the United States Constitution, dead or alive.

Announcer: Funding for this program is provided by the John M. Olin Foundation and the Starr Foundation.

Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today, the role, the proper role, of the United States Supreme Court. The Supreme Court, of course, has the final decision on what is constitutional and what is not, but how should the Supreme Court make those decisions? Should it apply standards based on a view of the Constitution as a living document that evolves over time as society itself changes, or should it apply rules based instead on a view of the Constitution as a fixed text, a dead document. Standards versus rules. A loose interpretation of the Constitution as evolving versus close textual analysis. Which view of the Constitution is correct?

Joining us today, two legal experts. Erwin Chemerinsky is a professor of law at the University of Southern California and John Eastman is a professor of law at Chapman University.

Title: It's Alive?

Peter Robinson: Associate Justice of the Supreme Court Antonin Scalia: "The American people have been converted to belief in the living Constitution--a morphing document that means from age to age what judges believe it ought to mean. The Constitution that I, Antonin Scalia, interpret and apply is not living, but dead." The Constitution of the United States, dead or alive, Erwin?

Erwin Chemerinsky: It has to be alive, it was written in 1787 for a slave society.

Peter Robinson: A living Constitution, that's yours?

Erwin Chemerinsky: Absolutely.

Peter Robinson: John?

John Eastman: It's not dead but the way that it's living is not the way some justices would treat it to be. It doesn't evolve and be manipulated by judges' will, it's living in order--because the principles can take account of new circumstances, but those principles themselves are unchanging and I think that's what Justice Scalia is talking about.

Peter Robinson: Okay, now the two of you need to help me, a layman, understand there's two quite different ways of looking at the court--one is epitomized by Justice Scalia himself. Listen to him once again: "Our first responsibility as judges is not to make sense of the law, our first responsibility is to follow the text of the law." The New York Times has said of Justice Scalia that he is, I'm quoting the Times, " a seeker of bright lines and boundaries, a transmitter of rules." Now, bright lines, boundaries, rules, why is that the right way to look at the Constitution?

John Eastman: Well, it's the right way to look at the Constitution because the Constitution embodies the will of the people that came together at a heightened time of focus to put in place certain rules on how we were going to govern our society. To say that we're not going to follow the bright lines set out in the Constitution is not to let the people decide on a case-by-case basis where we would like to be, but it's to let un-elected judges make those decisions for the rest of us. It's a distinctly anti-democratic adoption of this living Constitution notion where un-elected life tenured judges get to make the rules that the rest of us live by.

Peter Robinson: That makes perfect sense, what's wrong with bright lines and boundaries and rules?

Erwin Chemerinsky: I agree, where the Constitution and its text is clear, it should be followed--it says the president should be thirty five years old, no one says judges by interpretation should change that. But the Constitution also says there shouldn't be cruel and unusual punishment, there should be due process of law, there should be equal protection. You can't decide the meaning of those phrases by looking to the text. And the meaning of the phrases has to come from the modern problems and the views--the justices have to deal with those modern problems.

Peter Robinson: Okay, Justice Breyer epitomizing I think something quite close to your view Erwin. I quote Justice Breyer: "The real world consequences of a particular interpretive decision valued in terms of basic constitutional purposes," those are two big words with Justice Breyer, "consequences" and "purposes", "play an important role in constitutional decision making." Consequences and purposes, you like that way of looking at the Constitution?

Erwin Chemerinsky: You have to when you decide whether or not discrimination against women violates the Equal Protection Clause. You're not going to find answers to that except in the context of looking at the consequences. When you decide whether there's a compelling enough interest to justify interfering with the fundamental right or even engaging a-in race discrimination, what's a compelling interest but looking at consequences and purposes?

John Eastman: The problem with that is Justice Breyer is very selective in which of the Constitution's purposes he wants to protect and which he wants to ignore. And it's that ability of a judge to make those fundamental determinations just in the exercise of his own will rather than following what the Constitution actually commands, that creates the problem. And we're not talking about the cases of the margin where the text is ambiguous; we're talking about things where Justice Breyer himself has conceded, for example in campaign finance reform.

Peter Robinson: Yeah, we'll get to that.

John Eastman: Yeah ,that the First Amendment actually covers these things, but there are reasons why we ought not to follow the text of the Constitution. I think that's a very troubling thing.

Peter Robinson: Let's go to the heart of a vital constitutional matter, freedom of speech.

Title: Talk of the Nation

Peter Robinson: The First Amendment to the Constitution: "Congress," I'm abridging this a little bit, "Congress shall make no law abridging the freedom of speech or of the press." Now, the freedom of the press as of the late eighteenth century, who knows quite what that meant. Isn't that a phrase that we simply have to fill in with present day content, John?

John Eastman: No, I think two things--one, the freedom of the press and the freedom of speech and also that principles underlying those protections were very clear in the eighteenth century and the principles themselves have not changed today. What has changed is some of the applications. We did not have an internet. When we have to try and accommodate the new circumstances, but the principle hasn't changed.

Peter Robinson: Let me just ask a methodological question then, so you look at this late eighteenth century document and your first impulse on reading it is to pull down the history books. You want to establish in as much detail as you can what the words meant to them at the time. That would be your starting point?

John Eastman: That's the starting point, yes, because the alternative is something radically different. There's no question that at the end of the day, there may be some things that they meant at the time that we do not want to continue to perpetuate. All right, there's no question about that. The question is how you make those shifts--whether you do it by the constitutional method set out in the Constitution itself…

Peter Robinson: You amend the Constitution, you don't let the judges…

John Eastman: That's right. Or whether you let the judges do it ad hoc based on their own predilections. And I think it's much more dangerous to do the ad hoc route.

Erwin Chemerinsky: The way you describe it as ad hoc, I don't think is fair. I say you start with the text of the Constitution. And I agree with John. We want to start with what's the abstract principle the provision's about. But what the framers thought in 1787 can't be binding on us in 2002. The reality is it was a dramatically different world. And we even assume that we could know what the framers intended.

Peter Robinson: John, for you: Ronald Dworkin, legal scholar Ronald Dworkin: "There was no generally accepted understanding of the free right of speech on which the framers could have based a clause even if they had wanted to." That is to say that the history itself is unclear, contentious, do you buy that at all? What is your point? You understand as best you can what they meant?

John Eastman: There is clearly a contention. There were contending forces on many of these principles, but what was interesting is that one of the sides of those contending forces in most instances, prevailed. And that's what we end up with out of the founding period of what prevailed and it may be a view that we don't want to have anymore. But again I raise the question, which is the better way to alter that it keeps account of democratic principles and if you alter it according to the structural mechanisms rather than un-elected judges, I think that is more consistent with the democratic principle that Justice Breyer himself claims to be fostering.

Erwin Chemerinsky: But there's a mis-definition of democracy here. We all believe in democracy, but we're not democracy by a majority rule, we're a constitutional democracy and the Constitution has un-elected judges applying the Constitution. When we discuss in the abstract it's easier to agree, focus on specific examples--campaign finance, is spending money in a political campaign speech, is there a compelling interest that justifies restricting it?

Peter Robinson: Let's do as Erwin suggests and take a closer look at some examples, beginning with campaign finance reform.

Title: A Penny for Your Thoughts

Peter Robinson: These are laws that by and large place limits on the contributions that citizens may make, or groups may make, to candidates for political office. Now Justice Scalia is generally skeptical of these laws, not because he finds that the Constitution said anything at all about political contributions, in fact it's silent on political contributions, but because Justice Scalia says political contributions are contributions in the cause of freedom of speech, they are made to permit political speech to take place. So he says Congress shall make no laws abridging the freedom of speech, simple for him. On the other hand, Justice Breyer says, makes the point, the Constitution doesn't define freedom of speech in any clear way, and then he asks the question, what is the Constitution trying to do--its purpose is to construct a participatory democracy. If in this present day context we think that limiting some contributions gives people a greater feeling of fairness of the process, then it's okay. That's a pretty clear-cut case of drawing the lines or trying to interpret the purposes. So what's wrong with the Breyer approach?

John Eastman: What's wrong with the Breyer approach is I think it ignores the very distinct possibility, and I'd say likelihood in fact with the existing current campaign finance laws, that they are not democratic enhancing, but they are in fact a legislature that is captured by the very special interests that they purport to be regulating and what you now end up with…

Peter Robinson: But you're arguing on Breyer's grounds.

John Eastman: No, no, but what you end up with, to take Breyer's position, is the government itself determining what level of speech is appropriate and it is an intrusion on the very core principle that the speech clause is there to protect, which is the ability for the people to engage in a political process through their speech to control their government.

Peter Robinson: It seems to me on the one hand you're willing to some extent to argue on Justice Breyer's grounds. He is concerned with the intent, the overall purpose of the Constitution and you are saying well the Constitution may have wanted participatory democracy, it's just that these laws don't further their purpose. Whereas Scalia says, wait a minute; let's just look at the text, what do the words say and he says, freedom of speech shall not be abridged. Those are two quite different grounds on which to reject this…

John Eastman: Well, I wasn't defending Breyer's methodology. What I was saying is even on his own methodological terms, he runs into these other problems that cannot be addressed by his results.

Peter Robinson: Why is Scalia wrong about this?

Erwin Chemerinsky: Well this is a wonderful example of how rules can't exist for so many constitutional questions. We're discussing two issues here. First, is spending money in an election campaign speech? And second, does the government have a compelling interest that would justify restricting that speech? You can't find answers to either of those questions in the text of the Constitution, and you can't find answers in the intent back in 1787…

Peter Robinson: Hang on.

Erwin Chemerinsky: …they didn't discuss them.

Peter Robinson: So you simply reject outright the Scalia notion that precisely because the purpose and use of this money is to fund political speech it is covered under the First Amendment protection of freedom of speech.

Erwin Chemerinsky: I don't think that spending money is itself speech. I think you can argue we should treat it as speech, but I think the key…

Peter Robinson: Which we're already making a big interpretive…

Erwin Chemerinsky: Of course you are, because the framers never would have thought the word "speech" to include spending money.

Peter Robinson: That's a point, isn't it?

John Eastman: No, I don't think so. I mean for the framers, the speech was the taking out of a newspaper ad or a letter in a local newspaper and the expenditure of money was by owning the printing press. And if you saw a regulation telling somebody that you can't own a printing press, that we're going to restrict your speech that way, that was a patent violation of the free speech and free press clause. So I think Scalia's right, that it is squarely within the freedom of speech.

Erwin Chemerinsky: But I'm making a different point. What I'm saying is you can't find the answer in a rule, you can't find the answer in the word "speech" in the Constitution, you can't find it in framer's intent. And keep in mind, speech has never been regarded as absolute. The Supreme Court has always said if there's a compelling interest it can be interfered with. The real issue with regard to campaign finance I think is, is there a sufficiently compelling interest to justify restricting the speech? That requires looking at purpose. Again, you can't resolve that by a rule by looking at the text of the Constitution.

John Eastman: Well, what we've got there in the difference between Justice Scalia and Justice Breyer I think is key. Justice Scalia says when it is so clearly an intrusion on the freedom of speech that whether we're going to have a compelling interest, we want to subject this to strict scrutiny, so make sure that the government is actually doing things only necessary to restrict speech. Justice Breyer wants to even water down that test and say we're going to defer to the legislative judgments here and that really guts the heart out of the First Amendment's protection.

Peter Robinson: Next, another divisive constitutional issue, the death penalty.

Title: The Gallows Poll

Peter Robinson: Justice Scalia: "No fewer than three of the justices with whom I have served have maintained that the death penalty is unconstitutional even though its use is explicitly contemplated in the Constitution. The Due Process Clause of the Fifth and Fourteenth Amendments says that no person shall be deprived of life without due process of law and the Grand Jury Clause of the Fifth Amendment says that no person shall be held to answer for a capital crime without grand jury indictment." That's obvious isn't it? The framers understood capital punishment as something that was neither unusual nor cruel, but to be expected in the administration of justice. Right?

Erwin Chemerinsky: Well, that the framers intended that is right, but whether that resolves the modern issue about the death penalty, isn't at all right. The Constitution in the Eighth Amendment says that the government shall not engage in cruel and unusual punishment. The Supreme Court repeatedly has said, not just now but for decades, that what's cruel and unusual punishment is determined by evolving standards of decency.

Peter Robinson: How old is that standard? When did the Court first establish that standard, do you know roughly? Is that early nineteenth century, late nineteenth century?

Erwin Chemerinsky: The first cases to say grossly disproportionate punishments violate the Eighth Amendment were in the first decade of the twentieth century.

Peter Robinson: All right, so it's twentieth century.

John Eastman: And the more evolving standard with specific respect to the death penalty itself comes about during the Warren Court era.

Peter Robinson: Well, Scalia--I mean, this is not all that complicated for Scalia. You are not giving me something that Chief Justice John Marshall laid down, you're giving me something that Chief Justice Warren laid down, and I reject it, that was just wrong.

Erwin Chemerinsky: But the question that you're begging is to what extent should modern society be bound by the framer's conceptions of the meaning of the Constitution?

Peter Robinson: And I, acting on what I understand to be the position of Antonin Scalia, say right, Erwin, that is a valid question and it is to be handled by amending the Constitution or by passing legislation in the fifty state legislatures.

Erwin Chemerinsky: And that's where we disagree.

Peter Robinson: Erwin, you're so even tempered and so poised that it's hard to believe you just said something as outrageous as you have. You have granted that the framers clearly understood capital punishment to be permissible but that however, in the last four decades, it has at the same time been perfectly acceptable for the Supreme Court to say, ah, so that's what they thought, this is what we think. That is as clear a definition of the arrogation of the legislative function to the judicial as could possibly be stated.

Erwin Chemerinsky: I couldn't disagree more. The Constitution says no cruel and unusual punishment. Each Court has to give meaning to that phrase. I believe that the Constitution must evolve not only by amendment, but by interpretation. As each generation takes the grand words of the Constitution and applies it to current situations.

John Eastman: Erwin's becoming an originalist. The founders understood the Eighth Amendment to be an evolving principle, so we ought to give effect to that, but not the other clauses. And it cannot be the case that an evolving standard codified in the Eighth Amendment can necessarily trump the specific textual provisions in the Fifth and the Fourteenth Amendments. I mean it just doesn't work that way. You cannot evolve it to the extent that it obliterates other clauses without undermining the notion of constitutionalism itself.

Erwin Chemerinsky: It doesn't obliterate other clauses. The fact that the Due Process Clause says 'no person should be denied of life, liberty or property, without due process of law,' doesn't say 'and the government can engage in the death penalty'. If the Constitution said 'and the government can engage in the death penalty,' we wouldn't be having this conversation. The question here is, what is cruel and unusual punishment?

Peter Robinson: But it didn't say that precisely because the framers understood it as so obvious, it wouldn't even have occurred to them that anyone would doubt this.

John Eastman: And it does say that precisely. You can't read the Due Process Clause--it says no person shall be deprived of life without due process of law, without understanding that they can be deprived of life with due process of law.

Peter Robinson: On to an issue that both of our guests have already raised, due process.

Title: It's All Part of the Process

Peter Robinson: Due Process Clause of the Fourteenth Amendment, no state shall, "deprive any person of life, liberty, or property, without due process of law." Now, Justice Scalia--there is this great advantage to the Scalia position that it can be followed by a layman. He says, look at the text and the text in specific legal tradition, that's the phrase specific tradition that he uses, of the eighteenth century make it clear that what they had in mind to be covered by due process, was only life, liberty, and property, and the broadening of that clause to include a grab bag of other rights, for example the right to privacy, is completely unwarranted. Quite reasonable, wouldn't you say Erwin?

Erwin Chemerinsky: I want to make a point. Notice how Scalia is using his methodology to interpret the Constitution to come to the conservative results he likes. He uses the methodology to say the death penalty is okay, and he believes the death penalty is okay. He uses the methodology to say abortion rights aren't in the Constitution because--everybody brings their own views to interpreting the Constitution. Now the Constitution says liberty, the question is, what are liberties protected by the Constitution? And the Supreme Court, at least since the time the Fourteenth Amendment was adopted, has recognized that liberties can be things that aren't mentioned elsewhere in the Constitution. Since early in the twentieth century the Supreme Court said, privacy is a fundamental aspect of the liberty that we all possess.

John Eastman: I think it's just false to suggest that Justice Scalia is predisposed to a certain conservative outcome and time after time, and particularly in the First Amendment context, but I'm thinking recently in the Fourth Amendment context when he upholds the ability--strikes down the ability of government to use infra red imaging as a search and seizure and he acknowledges that that attempt to search inside one's house just because you can use modern technology and not knock down the door, doesn't make it any more of a reasonable search and seizure. And that would be the non-conservative outcome, the non-law and order outcome. So I don't think he's predisposed in that direction, I think where he ends up most of the time fits the characterization of his predisposition because the rule of law that he is applying leads to those conclusions.

Erwin Chemerinsky: I couldn't disagree with more about this. I think it's amazing that Scalia finds in the Constitution that school prayer is okay, that aid to parochial school is okay, that abortion rights shouldn't be, that affirmative action isn't allowed, that the death penalty is okay. It's amazing how much the framers of the Constitution thought like the contemporary Republican platform. The reality is that every justice brings their views to interpreting the broad words of the Constitution. Conservative justices like Scalia will come to conservative conclusions far more often than not. There may be an exception. More liberal justices will come to liberal conclusions, but that's what the Constitution is about. If it had been written in more detail, it could never have survived for over two hundred years. It's an open-ended document that each generation has to give meaning to.

John Eastman: There's a more fundamental disagreement here and I think a reason why these sometimes align with partisan labels, but it's not because there's raw partisanship going on. For the last forty years, one of the defining differences between the parties has been the devotion to a fixed constitutional rule of law, an evolving constitutional rule of law, and the political parties and the judges appointed, when their parties are in power, have aligned themselves that way. So it's no accident that judges who come out of that tradition of strictly following the Constitution, end up looking more like a Republican platform.

Peter Robinson: Last question, how much of this living versus dead Constitution debate comes down to politics?

Title: It's a Political World

Peter Robinson: Last forty years, Warren court on, here are a few discoveries that the Supreme Court has made--items that were found to be unConstitutional even though prior to the Warren court they had never raised so much as a Constitutional eyebrow. The admission of evidence obtained by unlawful search, invoking God at public school graduations, imposing property requirements as a condition of voting, prohibitions on pornography. So what you have in the last forty years or so from the Warren court on, is this living document being used by the Supreme Court of the United States to adjust Constitutional law to the liberal position. That's what going on and that's what Scalia and every American should resist because as long as there's a predominance of liberal-minded judges on the bench you get--but on the other hand, if the conservatives buy into this living Constitution, they can switch it back the other way, and it simply begins to be politics in the small print of legal decisions.

Erwin Chemerinsky: I disagree, I think, with everything you just said. First your history is wrong. Some of those things long predate the Warren Court. The second thing that I think is inaccurate in your description of that is that it's a liberal Supreme Court today. Seven of the nine justices on the Court were appointed by Republicans…

Peter Robinson: Yes, yes, yes, and one of those, Justice Souter, is the most liberal justice anybody could even imagine. Rehnquist, Scalia, and Thomas, those three are fine by me, but from that point on, it begins to be getting a little wobbly.

Erwin Chemerinsky: How could you think of Sandra O'Connor and Anthony Kennedy, appointed by President Reagan, as other than at least moderately conservative justices?

Peter Robinson: Emphasis on moderately, but go ahead.

Erwin Chemerinsky: Now in terms of all of your examples, in each instance what the Supreme Court has to decide is what the constitutional provision means. Is school prayer an impermissible establishment of religion? Does the admission of evidence obtained in violation of the Fourth Amendment violate the Constitution? That's a question that the Court has to decide. And in each instance the Court is interpreting the text of the Constitution and I think in each instance the Court came to the right conclusion and we should be glad that we have a Court largely…

Peter Robinson: Can I just ask you a question? So, if school prayer is unconstitutional in the second half of the twentieth century, does that mean that everyone was simply mistaken for the preceding century and a half?

Erwin Chemerinsky: Well, but you're assuming that there is a meaning of the Constitution that is written and fixed forever. I don't think that could be true of a document written in 1787.

John Eastman: This is very interesting because Justice Breyer makes his defense to uphold the ability of judges to alter the constitutional rules as they see fit and he does it in the guise of fostering democratic principles. Right. But what's most interesting is in all of these cases; they are striking down attempts by the democratic branches, the legislature, to govern themselves. And so what we have in this defense of democratic principles is the very thing that is the most undemocratic, which is the un-elected elite judges defining what the rule is. And I give one example. In Justice Breyer's best articulation of his argument, the James Madison lecture at New York University last year, he studiously avoids any discussion of Roe because, see, that runs counter to his whole principle here.

Peter Robinson: Roe versus Wade was struck down...

John Eastman: Struck down, that's right. And if we're going to foster the democratic principle that he claims to be fostering, then the intrusion on the state legislative process that is trying to grapple with that very difficult issue is the height of judicial arrogance.

Erwin Chemerinsky: Can I say one thing?

Peter Robinson: You'll have to say it briefly because it's television, we're running out of time.

Erwin Chemerinsky: Both of you have tried to say that the conservatives are on the side of democracy…

Peter Robinson: What, I'm sorry.

Erwin Chemerinsky: …the conservatives are on the side of democracy. And I think it's only when it serves their purposes. Take affirmative action for example, when popularly elected legislatures adopt affirmative action programs, it's the conservatives on the Court who are willing to strike down what the democratic process does, even though there's plenty of evidence that the framers of the Fourteenth Amendment intended affirmative action.

Peter Robinson: So we have on the one hand Scalia and the view he epitomizes--a jurisprudence of rules and original intent. And on the other hand, Justice Breyer and the view that he epitomizes, a jurisprudence of constitutional purposes and consequences. A decade from now, which view will predominate on the Supreme Court of the United States? John?

John Eastman: I think much unfortunately depends on who wins the next election because we have politicized the bench.

Erwin Chemerinsky: I agree with John, which is a nice place to finish. I think it all depends on who's the president and appointing justices. The thing I disagree with John about is that's something that's new. It's been so all through American history. That who the president is is going to be who the Supreme Court is and that's going to determine what the Supreme Court does.

Peter Robinson: Erwin and John, thank you very much. I'm Peter Robinson, for Uncommon Knowledge, thank you for joining us.