Stories behind the Supreme Court most historic ruling. Welcome to the Constitution Center. And the president of this wonderful institution which is the only institution in america chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis. Tearful. That is so inspiring. Wonderful live cspan audience. You can see the great members of Constitution Center by people around the country are inspired by this mission of constitutional education and believe it is important for citizens to educate themselves so american democracy can thrive and survive. In this mission we are so excited to be partners with cspan. We have a wonderful collaboration a few years ago, landmark cases which described the human stories behind some of the most important Supreme Court cases of all time. That was inspired by a comment that Justice Ginsburg made at the Constitution Center event a few years ago where she said how inspiring it would be to hear those human stories so people can relate to the cases and understand the constitutional principles behind them. That series was such a success that literally by popular demand we are launching tonight landmark cases season two. Hooray. We have a series of new cases and we are going to talk about the human stories and to describe them, we have a dream team of respondents. I will introduce them in the second but first i have to put put in a plug for upcoming Constitution Center events, last week we had this wonderful event with Justice Ginsburg, she came back and talked about gender equality in the future the constitution, we have coming up the following events as part of our americas Town Hall Program of which this program is one, coming up later this month we have dean heather gergen, how the right and left can unite around federalism, and on march 15, they will come to discuss renewing the founders promise and on march 20, im so excited, this just arrived in the mail, the hard copy of this thrilling new book about an underappreciated constitutional hero William Howard taft. Justice ginsburg will interview me about our most judicial president and president ial chief justice and a man who lost 75 pounds on a paleo diet after he left his unwanted presidency. Those are the Exciting Events coming up and out is my great pleasure to introduce my colleague, friend, collaborator, visionary head of cspan, susan. [applause] note to self, never followed jeff rosen at the podium. Happy president s day. We are going to talk about the Supreme Court tonight on president s day but what really could be more fitting than one of the most important responsibilities that president s have during their term in office to select judicial appointees to the Supreme Court. Its very appropriate for this very special day. I want to echo jeffs comments about our great working relationship, as long as theres been a national Constitution Center it is educational and nonpartisan mission, so much mirror cspans nearly 40yearold educational nonpartisan Public Affairs charter and so it was a wonderful collaboration. In fact, during the 2016 conventions, we set up our studio and have a beautiful view of independence hall. Im in native of philadelphia so its nice to be home. As jeff rosen said, they were kind enough to invite my colleagues and i to the national Constitution Center in washington a few years ago. The story that Ruth Bader Ginsburg told was a loving virginia and how compelling it was to think about them in their bedroom and the police breaking in because interracial marrie marriage was outlawed. That poignant human story just resonated with us and we came back to our office and said, why do we take on the cases that have dramatic human stories. Working with the folks at the Constitution Center in their great scholarship here we collaborated with a really great group on our first set of cases. Its hard to know only have a hit because we dont have any ratings but we had a lot of good feedback and the programs are interactive so we had a lot of people phoning in and sending tweets and Facebook Messages and we liked it. That was the best part. What can be better when you have a job youre learning something, you work with great people and youre getting a lot of positive feedback. It hit on all of those buttons. When the election was historica, this was just a natural for us. We have we are starting all the way back in 1819 with mcculloch versus maryland and we will end up with 1978 case when alan baci challenged affirmative action in the state of california and we chose cases that are not just historically interesting but relevant to our live today. Will be looking at cases that deal with civil rights and free speech, issues with the right to privacy, things that we are all talking about and debating in our society. You will learn a bit of 200 years of judicial history but also think about how these cases continue to impact our society today. I just want to say quick note about my colleagues because this is a lot of work for a summer of busy covering the calcongress thats been keeping us quite active. A few of us has taken us on as a bit of a labor of love. Could you wave your hand so people know who you are . Our executive producer for special projects, ben oconnell will be producing the series for us, the senior producer. Nate hurst is next to him and hes been working with us on a week to week basis to line up all the gas. We have two folks at home in washington. Randy is one of our field crew people and we are sending them out, this goes to the people story. He is going on location to personal stories, the hometowns of where these cases took place and getting video, visiting chinatown and going to des moines. Youll see the places where these take place. The series starts next wednesday night. It will be live for 90 minutes and well go for 12 weeks. Each one gets its own program. Were hoping so much to have you in our audience, phoning with questions or send us a facebook, and make it interactive. Just as tonight, your questions really make the discussion. Thanks for helping us kick it off tonight. Thank you for your enthusiasm and being here. I will turn it over. Thank you. [applause] thank you so much susan. Susan is a masterful moderator and its such a pleasure to learn with her about these incredible cases. Ladies in german, you are in for a treat. I hope this will be a concentrated constitutional fee feet, an hour where we have two of americas leading experts on the constitution from different perspectives to help take us through these cases, to Learn Together and spread the light. We have americas teacher of the constitution. He was my teacher of the constitution, my First Teacher in law school and he has spread his wisdom and knowledge to me and to thousands and hundreds of thousands of others by means of wonderful technologies, he is the author of many books including the constitution today, timeless lessons for the issue of our era, he is studying Political Science at yell and he is the leading constitutional methodology that some have called new textualism or original is in for liberals that argues that the text and history of the constitution honestly interpreted should lead to results of different political balances. Joining him in this incredible discussion is michael s paulson. He is distinguished chair and professor of law at the university of st. Thomas, author of numerous books including the constitution an introduction which i have here which Justice Samuel alito called solid, reliable, interesting, informative and a lively tour of the constitution. He approaches things, according to Justice Alito from a more originalist perspective, more conservative point of view and i just learned in the green room that they were high law school roommates. What do you imagine that these two brilliant scholars of the constitution did in law school . I wasnt surprised to learn they debated the constitution so heatedly they would follow each other into the communal restrooms and they were brushing their teeth and mike what argue that he was a wild ride living constitutional and he called him a rigid originalist and i hope your teeth cap rushed and im sure the debate was absolutely fascinating. We will continue it tonight. Let us jump in. We have to use every moment of this precious time. We will begin with mcculloch and maryland, 1819. I need my constitutional reading glasses and i think we need the text of article one, i havent tried it. Wonderful. The Congress Shall have power to make all laws necessary and proper for carrying into execution the foregoing power and all other powers vested by this constitution in the government of the United States. The second bank of the u. S. Created here in philadelphia, there branches a bunch of cities including baltimore. In 1818 the Maryland Legislature passes a bill taxing outofstate banks and the question is, does congress have the authority to establish the bank, did maryland law unconstitutionally interfere with congressional powers. The important opinions of the court has many memorable lines including the power to tax involve the power to destroy and unlike the articles of confederation, the tenth amendment doesnt include the word expressly and this is evidence of the constitution not limiting congress to do only those things listed in article one. You have called it the most central case in our constitutional canon and you have said i teach my students mcculloch before because i think its a better example of legal craft. What is it so important and what you want our audience to know. Constitutional law isnt just about what the rules are. What congress can do, what congress can do, what the president can and cant do. What questions are important, even more important, how do you do constitutional, how do you make a constitutional argument paired what counts. Only judicial precedent . What about text or history, the original intent, the structure of the constitution. It is a beautiful example of all the different tools and techniques of proper constitutional analysis. A holistic analysis been brought to bear so if i want to teach my students more than anything else, how too do constitutional law, how to make arguments, mcculloch is a great place to start. Wow. Mike, you also have high praise for mcculloch and in this book, the constitution, an introduction, you say that it has relevance for the courts decision to uphold the Affordable Care act. Tell us about how it has come to stand for broad interpretation of National Power which has prevailed although jacksons veto stands. You wouldnt think that a case about taxing a bank would be such exciting but it is. This controversy goes to the root of how broad the National Governments powers are to legislate for the country and it goes back for hamilton to jefferson. I think ive seen this debate recreated in the musical hamilton. I wont do any wrap but John Marshall, in upholding the constitutionality of the bank of the United States basically plagiarizes arguments Alexander Hamilton to George Washington to convince him that the powers granted to congress should be construed for all their worth. The idea, the necessary and proper clause means not that there are powers beyond the constitution but that the constitution grants congress the rod sphere of powers. The power to create a National Bank isnt specifically enumerated but there are powers to regulate commerce and commercial affairs and banking, bankruptcy, and so the creation of a bank of the United States was necessary and proper for carrying into execution the other broad power. Hes right, it really is foundational to nearly everything that congress has done. Many people think congress has gone too far, but all of todays controversies how broad Congress Powers are really go back to the context of this. Theres another aspect which is the one where you hear this line the power to tax is the power to destroy. The state was taxing the operations of the bank the United States. If the bank, if federal interests is constitutional, then a state cant interfere with it under the supremacy clause of the constitution. National law beats inconsistent state law and i think its a wonderful case thats foundational for not only how broad Congress Powers are, but the relationship between the states and national government. In fact, you can see the roots of lincolns arguments against succession in the argument of why it is constitutional for the states to interfere with the operations of the nation. Im so tempted to take another round on the sprint i just want to make sure we get through all 12 pieces, but im going to resist the temptation and we will leave time for questions when we come back. Okay. Its time for another amendment and a really important case. This is a big one. Ladies and gentlemen, the 14th amendment to the constitution turns 150 this july. It is the cornerstone of the constitutional achievement of the civil war after lincoln promised a new birth of freedom at gettysburg. It says, lets read it and think about each of these, no state shall make or enforce any law which should abridge the privileges or immunities of the citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law nor deny any person within its jurisdiction the equal protection of the law. The case were talking about now is the civil rights case, 1883, the civil war is over, its time for reconstruction and the centerpiece of the achievement is the Civil Rights Act of 1875. Charles sumner, the author of the bill is so committed to this bill which will for bid discrimination in places of public accommodation that on his deathbed he says my bill, my bill, dont let them forget my bill. The bill passes and yet just a few years later in 1883, the Supreme Court strikes it down and hold it unconstitutionally exceeding congress authority under the 14th amendment. This is an amazing human story in this case that im sure we will tell in the series but Justice John Marshall who writes a famous dissent has riders block. He doesnt know what to say pretty so upset by this evisceration and his wife finds that the Supreme Court, this sober. [inaudible] where chief justice wrote this got decision saying africanamericans have no rights which white people are bound to respect, the case that the amendment was designed to repudiate. She puts on helens desk, she comes home from church and realizes its him and suddenly as if overcome by spirit, he writes the spectacular dissent and predicts that someday the decision will be viewed in infamy. Thats the civil right cases. Theres so much to say about this but i want the audience to understand. By what grounds did they pass this and by what browns was his dissent. I think a better channel John Marshall because what did he say in the mcculloch . Congress should have broad power. The constitution doesnt say bank or air force or individual mandate, but congress should have broad power when actually implementing the great purposes for which the constitution was established. National security above all and the bank is useful for National Security, banks are very helpful to win wars and marshall mentions that, now after the civil war, the federal government basically gives him a new confidence, a new focus and says civil rights, the 13th amendment, and slave slavery and Congress Shall have power. The language used is Congress Shall have power to pass appropriate legislation. The word appropriate is actually taken from matt versus marilyn so the framers of the 13th amendment ending slavery Want Congress have broad power to end slavery. The framers of the 14th mmi have this language but they also have language at the end of the 14th amendment think congress should have rod power so John Marshall says what was the basic problem that generated the reconstruction amendment, it was racism in america and congress has broad power to try to end racism and the sentence that we have up on the screen says no state shall, but right before that sentence it is one more pretty important, all persons born or naturalized in the United States are subject to the jurisdiction thereof are citizens of the United States in the state they reside. Anyone born in the United States is born and equal citizen. We are all born equal. We are all created equal. Thats linked to this idea at gettysburg, channeling jefferson and for all born equal and congress have power to enforce this, harlan said congress should be able to prohibit race discrimination in accommodations, hotels, theaters so he says lets read congressional power broadly in the spirit of John Marshall and mcculloch, reading and amendment that actually borrowed language, the word appropriate. What does the majority say in response . A pu