Hello, friends please join me once more in welcoming justice back to the National Constitution center center. Thank you for. It is always an honor to welcome our honorary cochair here to the ncc and its extraordinarily meaningful to convene this evening to discuss his new book reading constitution why i chose fragments as im not textualism justice. It is clear from this powerful book which better than any other sums the central methodological debate on the Supreme Court today between the pragmatism of which you are the leading spokesperson and textualism which is embraced by a Supreme Court majority. So im going to begin with the obvious question why did you choose to write this book about why you chose pragmatism . Textualism its a good question because what many people say is the way ive been a judge for 40 years, 48 years on the Supreme Court and want to get across particularly to students and others, how do you go about deciding or how do i go about deciding these difficult questions and difficult statutory questions, constitutional questions. And there is a division of opinion. And this thing has come along out of the creature from the black. I mean, its called texture ism or originalism. And i dont think thats the appropriate to go about it. And i think itll a lot of trouble. And so i, i want to write why not why from a scholars of view, you know, there are lots of scholars and teachers who will be able to do this better than could do it. But i will say and i said a it meanly but, i say ive had some experience to the scholars that you havent had. And so i would like to write about from the perspective of the cases and experience that ive had. And then youll see why i go this way and maybe somebody goes that way but you can make up your own mind. So thats at least one reason why i wrote it. And there are others. How many would you like . You just use the phrase it came about like a creature from the black lagoon. Well, that was a bit. I hesitated about that because is i think the people who hold this point of view are sincere and i think they have honest perspectives on it. And i think and thats another reason if i talk to an audience who are nonlawyers i know that 40 are going to say, why is he bothering . This is all politics. And if they dont think its all politics. Its just the judges doing what they think good or what theyd like to do. And i said, thats not been my experience. My experience over 40 years is. You cant say zero in politics, but no thats not the main thing. People who try to get judge appointed, they may think that they have political and these judge will carry them out in his, but that isnt what judge thinks when hes deciding a case. What the judges thinking is, this is the right approach this is the right result according to an approach that i believe is the proper way to statutes like this. This constitution of the united. So they think theyre it according to law and what others think, thats not going to affect them as much, in my opinion, is if i sit down or have you tried writing book . Oh, all right. But if you sit down and i try put on paper what i think ive learned over 40 years about how you go about interpreting these statutes in these phrases, the constitution, you want an example. That would be great. No, ill give you an example first. Whats the job . Whats the job . The best i read on whats the job of . An Appellate Court judge within a french newspaper area to discuss with someone. I read a french newspaper, it said. And is when im talking to a bunch of High School Students or fifth graders, even better with fifth graders, i say in that article, its a High School Biology teacher was traveling from not to paris on the train and he had next to him a basket and in the basket there were 20 live snails. Whats that the conductor would have you bought a ticket for the snails. And that is what. And i bought a ticket for the snails. A crazy heres no read the book. Read the fair book. The fair book. No animals on the train unless they a half price ticket if theyre talking about dogs, cats, rabid but surely not snails. You think youre talking about the skeeters is a snail an animal or not . So i say to the fifth grade, what do you think . Perfect. I dont have to. Another word. They get into the biggest argument youve ever seen. Half of them say, of course, an animal of. Well, well, what about a mosquito. Why did they. Oh yes, yes. And so i can just leave it happy for the rest of that perfect. Now, i say were not talking snails. I dont know of a statute that says snails maybe could be, but the freedom of speech and the right to bear arms a any Police Officer thats a Law Enforcement officer had said in the statute you say different words same idea same idea judge. What do those words mean how do they apply . And once you see, you say are, oh, how i going to decide this one . How am i going to figure it out . Because if this is a case in the Supreme Court of the United States, we only take cases or almost only take cases where different perfectly good in lower courts have come to different conclusions about the meaning the application of the word i want to say snails but that isnt word. The word is usually about freedom of speech or something in a statute or some other word in in the law. So tough. And now you have figure out how to do it and different have done it different ways. And what i say of course is ive written these several hundred pages which youve done, june, a very good book. Yes. Thank you. And for pursuit of happiness, its called got. All right. Right. That was last word. Okay. Okay. And in any case, in case i, how do we go about it . You know, and i need a scalia whos a good friend. We used to argue about it. Wed argue publicly. We were in lubbock texas in a big stadium because theyd never seen a Supreme Court justice before. They thought maybe itll be like football game. The but any case, there they were and and we were they would come away from that discussion thinking what those two were good friends, which we were which we were. And then im trying to figure out, look how what can i say here that will make you see that life changes over time . And those words in the that stood for so clearly x 200 years ago they have to adapt a little bit in their application not necessarily in the values they have so i said you know nino George Washington didnt know about the internet. He said i knew that then he well, the problem is really the two campuses is that this is there are two campers and one sees the other putting on his running shoes. And he says what he said, well, theres a bear in the camp, the bear in the camp. You cant outrun a bear. Yeah, but i outrun you. All right, thats one level of slight, bad comedy, but at the other level, he to me that you have a method using whats the purpose of this statute . What are the consequences this way or that way . What are the values that its embodied as . And how does that relate to the values that are in this document etc. . Its possible, but. And youre the only one who could do it. Hes trying to compliment me that he really nobody could do it. And then say to him, hmm. And if we follow your approach just looking at the words, just seeing what they meant, a reasonable observer at the time were written, if we follow that approach, were to have a constitution that no one will want. And in my own mind, thats the real argument. Those two ideas and if you say, well, you dont want judges going out there to substituting what think is good for what is the law. I agree with that and so does he know what the real is beneath that is do you really think nino scalia and there are two or three is one who read the whole top of textualism, which means you read that text and you say, what would it mean to a reasonable observer when it was written. Yeah, they think they think theyll be able to better keep the judges under control they promise you two things one when you just read a text and follow you will have a simpler system. You will have a system that people can follow. You will have a system that congress can follow. You will treat people in different courts like simple clear. And more than that, as ive said times already, you will have system that keeps the judges in check. It stops them from substituting what they think is good for what the law, you know, what do i say to that . I say, i think those promises are great. And i also think you cant possibly keep them and you wont. Thats what i think as an answer. All right. As one of the answers. Oh, am i right . I dont know how long you want me to go on. I wrote 200 days. Well, ive got of questions for you. All right. You just laid out very clearly the difference between pragmatism, which focuses on and purposes and workability and textualism ask what was the meaning of the text at the moment of its adoption . And you said its not all politics. But i got the strong sense from, this book that you do feel that there it is about political philosophy and you treat its not politics, but what would you say to this. The takeaway from the book, which is what i got that president since days of John Marshall have appointed justices to meet to to mirror their political philosophy that marshall favored a Broad National government and the counter was the jeffersonians who wanted construction in order to protect rights and rein in federal power. And the current textualist are appointed for just the same reason. And theyre trying to rein in federal power with. Their textualism name i thats at a level of generality that so high that its hard to have an answer of course. Lots of president s have been appointed ex and lo and behold, x turns out decide cases differently than the president thought. Lets call x david souter no, go ahead. But hes yonex. Yeah, there, there are many, many judges like that because when youre there the first few years you go around, oh god, how did i get here . You dont tell anyone you thought that because you have to pretend you believe youre totally qualified. But you, the yeah. Can i do this job . Yeah i sure hope so. And then after years, three years, souter thought three. William o. Douglas i think thought five. You said. Well, i dont know, but i can do the best can. And thats what you tried. Do the best you can. And thats true of all of them. And course, there may be different outlooks. And i think this outlook textualism, originalism is not one of the most desirable. So lets try it. You want to try . Okay. We have a case. This is case you wanted. Are you ready for textualist approach . Yes. This is the case. It there is a statute it says if you a child and that is handicapped, the Public School system has to give him an appropriate education, i. E. A good education. And if you think theyre not doing that, you can bring a lawsuit. And the plaintiff in that case did and she won. She won. And they had to change it. Well, buried so we have most of the cases have are pretty technical a lot them and theyre pretty far down and they dont into the newspaper but thats the majority all write down it says in the text somewhere says if she wins you know and she gets costs and she says to the judge judge, one of the things that i had is it cost was a 29,000 bill from the educational. Does she get that from the school board is that part of the cost or do they just mean legal costs . And is that a legal cost . Well, ill tell you how were going to answer that. Lets read the word. Yes, what the word was costs. Okay. We didnt read it hard enough. Lets say it twice. Cost costs. Oh, now weve got the answer. Oh, three times. Cost, cost, cost okay, you, you see i say where are we in this. Were in mixed up at best. And thats going to tell you the answer to that. Or did you know you may not know i shouldnt tell you this, but there are a lot of federal officers you can lawsuits against and maybe even recover some money dont tell i said that but but its its possible and then there are some exceptions you cant sue these people who have this job, which people one of the exception and says that you cannot sue for keeping property. It was an officer of customs and excise or any other enforcement officer. Oh who do they mean by that last phrase . The cop on. The beat, a german Police Officer . No, they dont mean that. But a cop on the beat or those with customs and excise. So i say say it three times. Any other enforcement officer, any other. Okay, wont do it. But but you see, you see problem you see the problem or lets go into the realm that the press will actually write about lets go into the realm of guns. Thats when where i wrote a long dissent with Justice Kagan and justice sotomayor. New york has a law which says you cannot carry a gun outside your house, concealed or not concealed. Does that violate the second amendment, which says a wellregulated militia being necessary for the security of a state, the right of the people to keep and bear arms shall not be infringed. I didnt expect you to memorize all that in that, but but you say in an earlier overrode a sense three of us four of us then you said that has do with militia. It doesnt have to do with holding a gun under your pillow. Just shoot a burglar. Five said it did force and it did. I think that was the number. So we passed that. Now at i cant i cant. Im i lost that. Okay. So now what about new yorks law and the court says in the opinion go look back in history and just history. Look at what when this was passed a reasonable person would have thought it meant i said, oh, okay that sounds good. What do i look at . So started looking at a few of the old gun or weapon or what a hall, the barred. Does that count . A skill letter . And then there was asian, which you took and threw over the walls to burn up somebody in. Was that the origin of artillery it . Got me. You see, im not very good at history. Or at least not skill bar or skill matters or whatever they are. And to ask the judges to decide on that way is not a good idea, in my opinion, because they dont know. Theyre not historians. And youll get briefs. The briefs will go in opposite directions and the historians will disagree. And then you have to decide what a skill ladder was or whether its a relevant. No. And what wanted to write about. And i did. I about it. Yeah. In the senate. Yeah. I said id like it to be relevant here that the united of america has 400 million guns. We number one. Number one. Number two is yemen. I think okay. And look at the number of deaths and the policemen who are killed and the and the home accident and the spousal problems and my god it is endless endless. And i say in my opinion that kind of thing is relevant. Im not saying youre just going to look at that of course well look at the words if the word in the statute or the word in the constitution. Not in the constitution. But suppose it was. If its carrot, that doesnt mean a fish. I got that point, but i want to go beyond that and i want to say you cant get a clear from the statute, which is most of the time dont try to say the costs 14 times. Dont try to say any other Police Officer, other Law Enforcement officer 18 times, look for things people. Have look to who are the people . Holmes brandos learned hand is chief Justice Marshall and many others. Look at the purpose. Someone wrote those words. Somebody had an idea when the words were written of what you were trying to do in congress, look at them. And when youre reading that constitution, remember, among other things, it has certain here Democratic Society basic human rights. Degree of equality. We separation powers, rule of law. Thats enough for the moment. But there there and take those into account to and remember who said this i wrote one montaigne actually 84. You like these old writers writers and yeah 84 he said the worst mistake justinian ever made. I read that i thought justinian okay but in any case he said the worst mistake these roman emperors made is they wanted their to write everything down in a statute. And we will have statutes and statutes, statutes and words and words and words and. Now, my judges wont be able to do the things that they really want to do. I dont want them to do it in the law. And montaigne says that man must been an idiot. He didnt say quite like that. He was, but he said, didnt he realize that for lawyers, every extra word is just a basis for disagreement and instead of his discovering that more will rule, he might discover fewer will disagree, will agree or disagree him is will agree with and they wont you dont know because life changes and life has far to it than a simple static process. And when these words are written, they have to be written in a way. As chief Justice Marshall says, that they have to apply and they will have to help us. They will have to help us live with a world that is changing and thats why the freedom of speech, however, clear what it applied. In 1789, is not to be clear how it applies to whatever they call it. A i or, you know, those different. And so you better think judge you better look not just the words in many cases where those words just answer you better look at a few other things purposes consequence his values and others as well. Well, let me just do anything i, i never think i do everything. I you try living with my children and grandchildren and youll understand. Oh, okay. But no, no. You try as a judge to do your best to follow the law. And so what im doing here is saying, assume with me that thats correct. And i people should because i do have experience in that. And now what do we do . And now do we do about this tidal wave of textualism or originalism that seems to be coming along and replacing in the schools replacing in the law schools, replacing in a lot of places, the tendency to what you read it. I whats the purpose . What was the mischief that congress was trying to stop . What was the will this consequence fit within and help achieve that objective or the opposite you say and thats thats what im doing what telling people. No im trying to show them here im trying to show them with example with enough examples that theyll able but they got time if they get to the of this book, theyll be able to say hes asking me which i am to make up own mind. Of course, i hope youll make it up in my direction, but nonetheless nonetheless, its something people have to learn about and think about and decide about for themselves. And in my own view i think well get a lot farther with the Supreme Court doing sort of what i think it ought to do. Then we will