with me. on the other level, we are in to political questions and i would probably belau before i started getting into substantive positions. -- i would probably bowed out before i started getting into substantive positions. but the first criticism is summed up in one of the first phrases from robert frost's last great poem -- i think i remember right -- waste is in the essence of the scheme. . . the very point of the structural rigid structural element of the constitution is to make some things difficult. they're made difficult in part to eliminate too much efficiency of power at the highest level. some things remain difficult for the very reason that we tend not to make very good decisions in times of great difficulty, apparel, hysteria. -- peril and hysteria. it is good not to let ourselves go too far too fast. the kind of waste or inefficiency was the essence of the scheme. to the extent there is criticism of the constitution and not suggesting this was the essence of anyone's criticism today, but on the grounds of inefficiency or waste the answer to that is -- yeah. [laughter] to the extent you get down to the further level, the lipitor college, senate, and so on, those are basically political questions. the only thing i would try to contribute to the debate there is to voice the thought i started with. i frequently tell a story to school groups. your more than that, but i cannot resist telling it because there's a great lesson in it. there was a teacher at dartmouth college years ago by the name of foley in one of his concerns was the regional english was disappearing in the u.s. he used to travel around in the countryside collecting examples of local speech patterns. i don't think he had a tape recorder, but a notebook as this was quite a while back. he stopped at a far more he knew the people and had talked with them before. -- at a farm. the husband was a former and the professor wiley asked how his wife was. the answer was -- compared to what? [laughter] that it seems to me is the essential question to raise when you get to the second level of constitutional criticism. what are we going to replace it with? water the odds that it will be better -- what are the odds? and what are the odds that it will function with less grief than what we have? that does not make me a veneration list, but -- a venerationist, but instead a pragmatist. be sure that it is broken and be sure that you can fix a better before you start doing that. james madison would not have answered exactly like that, neither indeed would thomas jefferson, so i'm somewhere in the middle. >> the system design for conflict demands resolution. interpretation of the constitution is one of the leading ways to resolve those difficulties. it is also one of the job you have been deeply engaged in over the last couple of decades. could i ask about a couple of leading schools and see how you react? let's begin with originalism, a school which emphasizes the original meaning of the constitution as it would have been understood by those who framed it or sometimes people attribute it to those who ratified it. what do you think of that as an approach to decision-making? you often begin with reference to what the framers thought. >> i think you have to answer that question with reference to specific questions. maybe the only general answer i could givei is couldsm is fine if you don't expect too much from it. -- originalism is fine if you don't expect too much from it. it is unlikely to provide you with specific answers to the kinds of questions you're likely to ask. maybe i should step back -- the reason i say it is fine is because one of the conditions for legitimate constitutional interpretation by an elected court is that we look to sources of meaning and two guides of how to make practical sense of what the constitution says. they have more authority than merely the preference of the judge who is talking. they are sources of legitimacy. one source which we recognize not only constitutionally but elsewhere in the law is respect for the intentions of those who use the language you are trying to interpret. that is what originalism ultimately looks to. in terms of what it can and cannot do. usually it cannot give you very specific answers even if you have made a careful canvas of debate at conventions, at ratifying conventions, or state legislatures, commentary by it those who might have been spoken with a common understanding of the time -- usually you do not get very specific answers, but sometimes you do. or sometimes at least it is possible. the longest thing i ever read from the bench was the descent from the seminole tribe case on the scope of the 11th amendment immunity from federal court. i thought in that case that originalism, for reference to regional sources indicating meeting understood that the time, provided a strong argument that the 11th amendment was intended to limit federal court citizen/date. date the majority of the court disagreed with me. -- federal court citizens/state jurisdiction. you have been either/or question and that helped to answer it. most of the time originalism is not give you clear answers like that. the so-called hard originalists who claim that specific answers are nearly always possible i think our people who tend to do what one professor of mine used to illustrate when people gave conclusive answers -- he would drop a magician's hat and two magicians ears and his plan was in order to pull the rabbit out of the hat to you first have to put their rabbit into the hat. originalism does not provide many specific rabbits. i don't know that there are many left today, but there's a tendency on the part of some primitive originalists to think there are more rabbits there than i think can be found. what a broader regionalism would do is to at least inform one about the conceptual thinking at the time the language was adopted -- i think that historicalism would be better word. this kind of background could provide good, legitimate reasons to go one way rather than another. what it cannot do is give -- and after all what virtually all constitutional interpretation is incapable of -- is something called the right answer rather than the wrong answer. one thing to bear in mind about any philosophical presuppositions is that we are by and large answering questions for which there is not a clearly ride or clearly wrong answer. however, the questions are capable of having a better or worse into. the idea is to get the best reasons to support the better answer. -- of having a better or worse into. >> when one speaks of better and worse answers the immediate better than what? you call yourself a pragmatist and a wonder if you talk about that as a self-conscious we're going about constitutional problems. the author of the metaphysical club is still here. >> if he is still here i would like to shake his hand. >> you yourself have was been interested in justice holmes. you took losses in this room and rhoda of senior essay about him. i wonder what pragmatism means to you in a constitutional context and whether it is an approach to deciding questions. >> there are two broad traces for pragmatic role. one is to look at a question pragmatically and say, i have all sorts of constitutional reasons for thinking the answer ought to be this rather than that. i will answer on a functional ground that gets me to whatever that better answer is. that kind of pragmatism is and difficult to what we'd like to call principled judicial decision making. but there is another kind of pragmatism and i guess that it also has two parts. the first is that which recognizes that all the principles we hold -- and i'm doug about normative principles now -- propositions about what ought to be. the constitution is a set of propositions about why it things ought to be. what ought to be done in situations with civil liberties, and so on. all normative propositions constitutional and others are essentially pragmatic in origin. no and adheres to a set of principles that over the long, long run produce horrible results. a few years ago -- >> no one knowingly does. >> that is right. a few years ago one of my teachers here wrote a wonderful book that summarized the approach to this kind of pragmatism. it was called "a philosophy of culture." he took up the question of whether normative propositions are factually verifiable or possible to disprove. that was essentially his point. that was milton white. we do have long or broad series of value and subsidiary principles that produce results that are thought to be horrendous by those values. principles that will ultimately be discarded. all constitutional principles have a pragmatic basis. that is one sense of pragmatism. that does not help you to decide particular cases because it is the kind of pragmatism that is engaged in by society as much and perhaps more so than by judges. the second part of pragmatism is that kind which was most magnificent and demonstrated by a certain judge. hand exemplified may be as well as anyone in my lifetime on the bench one prong of the distinction of appellate judges to judge from the top down and those who start from the bottom up. those who adjudicate from the top down start with principles of usually great breadth and look for cases to express those and embody them in judgments. the other school which was the hand school has respect for fact because your first job is to decide the case, not to embody principles. you may not be able to decide the case without exception some legal principle. after all, it is a normative proposition, but make sure you are being honest in your assessment in respect for the facts first. i think this latter kind of pragmatism is at least essential to my kind of judgment. i think we should start from the bottom of. it is essentially the common-law method in. -- from the bottom up. one consequence of that which she embodied in his own great judicial corpus was that a great many of the legal problems we are asked to face our problems that in fact can be given answers depending on factual differences on prior cases. rather than answers that require vast departures of the principal. that kind of pragmatism i guess is that which i would espouse. holmes dr. pragmatic game much of the time. it is the pragmatism that i think number one excepts the fact -- the demonstration of which i attributed to milton white about the ultimate verify ability of normative principles. it worries first about the case and the factual details before deciding how grand a principle is necessary to decided. >> the common law mfn begins with particulars. it is also accretive. it draws on a precipicedent from earlier cases. many people think it is directional, moving incrementally in a certain direction. burke often thought this more broadly about gradual change in the direction of something. many people think it should be in the direction of liberty or quality. living constitutionalism is the name usually goes under. it has been controversial. i wonder about the underlying picture in which a case by case decision-making goes somewhere into the expansion of liberties? some who have observed you over the years would describe be this way. >> fair enough. there has got to be a direction. at the end of the day you have to say something. bear in mind two different conflicts of judging. one is the historical context of the judge who was their frequently to judge whether be civil or criminal cases in places where there is a total absence of statutory law. you have to start from scratch. the value propositions whether constitutional or criminal responsibility are propositions you must derive by any method you do. the second type is that of common-law method. that is what you were principally referring to. i think it is appropriate in a constitutional context. it is accretion very rich in accretionary and starts with fa ct and moves slowly. one when you get to the fork in the road you have to go one where the other. that is the point at which it is important to remember some of those we heard today for the preamble to the constitution, the founding documents which suggested direction. however, one cannot just look to the founding documents for the direction for the very reason i went into a little earlier. the founding documents whether preambles, declarations, they are documents in a system that wants it both ways. one cannot, for example, interpreting the fourth amendment answering specific questions about its application say, well, the fourth amendment is dedicated to reasonable respect for privacy. once personal property -- one's personal property. that does not get you anywhere because the fourth amendment uses the criteria a reasonable ness which says you must look a both sides. secondly, even assuming there is a libertarian kind of direction there is to a degree -- it is not a zero sum game -- at least one in which one side wins and the other loses -- because it is a legitimate constitutional by you to promote the evenhanded enforcement of the law. the detection and punishment of people who break. -- of people who break it. there is no way at the end of the day except to say that i have a couple of sets of values which are in play here, one is of value that would generally be classified under liberty, the other classified under authority. we want some of both. i do not think there is any a propri wait to settle that in a specific way -- any a priori way to do that. i do not know of any formula and advance that can say liberty always wins, authority always wins. either would be anathema. that is why i espouse the common-law method which gets down to new the gritty -- nitty gritty issues to provide a promise for which of the two has the better argument for the given case. >> let me return a little bit. by your own account the previous cases do not fully decide the case before you. your turn to figure out the better of the different direction you could go. your at the fork and would choose one direction. you won't be like some judges who are yogi beara said when you get to the fork take it. there are some justices who you have served with who seem like they did follow that adage. that is not what emerges from the. method you the menu are figuring out which direction to go you look not only a prayer cases but at a broader directional sweep. -- that is not what seems to emerge from the method you use. greater liberty relative to authority, not limiting authority -- that seems to me it is an important force in your jurisprudence. those who espouse living constitutionalism say it openly. you have thought a great deal about substantive due process. there are many who believe and would say that you have written through the decisions that there is a directional expansion of liberty that should take place slowly because that is the direction of what has come before. it seems a little different from your formulation that speaks of reasoning from empirical fact. >> you are quite rare. my formulation when i was speaking did not speak of the significance of precedent. of course it is one of those principles of decision would be of great respect. originalism is something different, so is textualism. precedent is of course agree. we have to remember in every case in which there is a genuine issue that maybe we are at the point at which the line of precedent has been developed as far as it should be and there should be a counter-line. if an appellate judge will not accept that as a possibility, then the fix is in when he goes on a binge. -- on the bench. no line of precedent as were is the embodiment of an absolute right. the notion of the constitution in which we want it both ways it is sensible by accepting the proposition that we cannot have it both ways always, but we can have both ways partially. >> the issue say in to those 9 and 1991. i'm struck by the similarity of this formulation and the one you used when confirmed. the argument would be that -- one would want to ask -- is it that you're jurisprudence simply applies to the same principle is begun now and did at the outset and that it was simply fairly infrequent that you found it to be the case that the line of precedent expanding the reduce or quality have gone thus far and should go no further -- at least relative to your colleagues? or whether in fact the original pressures, and i don't mean that in the negative sense, but trending - towards liberty or" shows some gravitational pull on your decision making? there are critics who say that they are mutually exclusive. >> no one can see himself as others do. >> they say it is a great gift, yes. >> i am sure that i do not have it. the gazette have two thoughts in response to that. -- i guess that i have to thought about that. the upper level values of the legal system, a value that cannot be taken as absolute if you take my approach, is in fact the value that develops, or the value of developing a coherent system. if there is a significant by you in developing a coherent system albeit not an absolute one, then there will be the gravitational pull from any precedent. i'm certainly subject to the gravitational pull. i am very willing subject to it. the second thing i would say is on a purely individual basis, the basis of one judges output we do not invent the wheel again every time the possibility of invention or the lack of it comes up. we tend to follow our own precedent. i have not always done that. i did a 180 on nude dancing. [laughter] >> that metaphor calls out for such a response that would be inappropriate on c-span. >> not an emerson hall. we hope that we worked out the problems we're working on in a sufficiently reasonable way of what appeared to us five years ago as sensible or legitimate in its conclusion was in pretty much the same five years later. one will build on it. there's no question that except in cases in which one hopes really do so no, a book the first time around -- it will be a coherence. there will in fact be a progression. but ultimately, a coherence to the broader body of law. i apologize if i sound like a johnny one note on this. what we cannot forget is that we do not have the system in which the coherence of values allows for the development of any one guy you necessarily as far as it can logically go because there is usually a legitimate competitor somewhere. we cannot lose sight of that. the value of coherence and a system or body of doctrinal development must always have an open door. the door must be open to a competing value. >> but observation leads directly to another school of constitutional interpretation that everyone says they embrace and outsiders often think no windows. that is a judicial restraint. if you listen to chief justice roberts or justice sonia sotomayor who sounded very much alike all the judges do is apply the law. the reason is that we have a tripartite system of government. apologies to the fourth branch. there's not a policy to make the law but merely to decide it. that seems to be an orthodoxy one now recites in confirmation hearings. how does the judicial restraint as a theory of interpretation a square with the challenge of resolving competing principles? >> two answers. i will not use the word judicial restraint in my answer. that is a term -- fortunately like having the appendix out it does not have to -- one does not have to go through it again. judicial restraint was frank furter's favorite term. let's just go to the proposition that judges interpret law cannot make a. it there is a perfectly legitimate sense of which that is true. -- they interpret the law, not make it. in a judge should affirm that. there is also a sense in which judges are forced to make some law. that has to be recognized too. in the political arena of those distinctions are not drawn. when someone says do you think judges ought to interpret the law and n