yes, i know.

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 co-chair here to the ncc and it's extraordinarily meaningful to convene this evening to discuss his new book reading constitution why i chose fragments as i'm 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 i'm going to begin with the obvious question why did you choose to write this book about why you chose pragmatism? textualism it's a good question because what many people say is the way i've 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, it's called texture ism

or originalism. and i don't think that's the appropriate to go about it. and i think it'll 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 i've had some experience to the scholars that you haven't had. and so i would like to write about from the perspective of the cases and experience that i've had. and then you'll see why i go this way and maybe somebody goes that way but you can make up your own mind. so that's 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 that's another reason if i talk to an audience who are non-lawyers i know that 40% are going to say, why is he bothering? this is all politics. and if they don't think it's all politics. it's just the judges doing what they think good or what they'd like to do. and i said, that's not been my experience. my experience over 40 years is. you can't say zero in politics, but no that's 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 isn't what judge thinks when he's deciding a case. what the judge's 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 they're it according to law and what others think, that's 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 i've 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, i'll give you an example first. what's the job? what's the job? the best i read on what's 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 i'm talking to a bunch of high school students or fifth graders, even better with fifth graders, i say in that article, it's 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. what's 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 here's no read the book. read the fair book. the fair book. no animals on the train unless they a half price ticket if they're talking about dogs, cats, rabid but surely not snails. you think you're talking about the skeeters is a snail an animal or not? so i say to the fifth grade, what do you think? perfect. i don't have to.

another word. they get into the biggest argument you've 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 we're not talking snails. i don't 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 that's 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 isn't 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 i've written these several hundred pages which you've done, june, a very good book. yes. thank you. and for pursuit of happiness, it's 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

who's a good friend. we used to argue about it. we'd argue publicly. we were in lubbock texas in a big stadium because they'd never seen a supreme court justice before. they thought maybe it'll 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 i'm 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 didn't 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, there's a bear in the camp, the bear in the camp. you can't outrun a bear. yeah, but i outrun you. all right, that's one level of slight, bad comedy, but at the other level, he to me that you have a method using what's the purpose of this statute? what are the consequences this way or that way? what are the values that it's embodied as? and how does that relate to the values that are in this document etc.? it's possible, but. and you're the only one who could do it. he's 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, we're to have a constitution that no one will want. and in my own mind, that's the real argument. those two ideas and if you say, well, you don't 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 they'll 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 i've 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 can't possibly keep them and you won't. that's what i think as an answer. all right. as one of the answers. oh, am i right? i don't know how long you want me to go on. i wrote 200 days. well, i've 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 it's 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 it's 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 they're trying to rein in federal power with. their textualism name i that's

at a level of generality that so high that it's hard to have an answer of course. lots of presidents have been appointed ex and lo and behold, x turns out decide cases differently than the president thought. let's call x david souter no, go ahead. but he's yonex. yeah, there, there are many, many judges like that because when you're there the first few years you go around, oh god, how did i get here? you don't tell anyone you thought that because you have to pretend you believe you're 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 don't know, but i can do the best can. and that's what you tried. do the best you can. and that's 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 let's 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 they're 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 they're pretty far down and they don't into the newspaper but that's 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, i'll tell you how we're going to answer that. let's read the word. yes, what the word was costs. okay. we didn't read it hard enough. let's say it twice. cost costs. oh, now we've got the answer. oh, three times. cost, cost, cost okay, you, you see i say where are we in this. we're in mixed up at best. and that's going to tell you the answer to that. or did you know you may not know i shouldn't tell you this, but there are a lot of federal officers you can lawsuits against and maybe even recover some money don't tell i said

that but but it's it's possible and then there are some exceptions you can't 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 don't 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, won't do it. but but you see, you see problem you see the problem or let's go into the realm that the press will actually write about let's go into the realm of guns.

that's 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 well-regulated militia being necessary for the security of a state, the right of the people to keep and bear arms shall not be infringed. i didn't 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 doesn't 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 can't i can't. i'm i lost that. okay. so now what about new york's 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, i'm 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 don't know. they're not historians. and you'll 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 it's a relevant. no. and what wanted to write about. and i did. i about it. yeah. in the senate. yeah. i said i'd 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. i'm not saying you're just going to look at that of course we'll 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 it's carrot, that doesn't mean a fish. i got that point, but i want to go beyond that and i want to say

you can't get a clear from the statute, which is most of the time don't try to say the costs 14 times. don't 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 brando's 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 you're 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. that's 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 won't be able to do the things that they really want to do. i don't want them to do it in the law. and montaigne says that man must been an idiot. he didn't say quite like that. he was, but he said, didn't 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 won't you don't 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 that's 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 you'll understand. oh, okay. but no, no. you try as a judge to do your best to follow the law. and so what i'm doing here is saying, assume with me that that's 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 what's 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 that's that's what i'm doing what telling people. no i'm trying to show them here i'm trying to show them with example with enough examples that they'll able but they got time if they get to the of this book, they'll be able to say he's asking me which i am to make up own mind. of course, i hope you'll make it up in my direction, but nonetheless nonetheless, it's something people have to learn about and think about and decide about for themselves. and in my own view i think we'll get a lot farther with the

supreme court doing sort of what i think it ought to do. then we will just by saying, oh, it's all politics, all the way to all politics. that doesn't help very much. will you do do it with examples. and the gun case is a perfect example of your defense of pragmatism and, your critique of originalism for your defense, pragmatism. you say this is what have almost always done. and it goes back to marshall and it was holmes and it was frankfurter. this is ordinarily the way the supreme court approaches cases and it leads to more workable results. and for the critique, you say this was bad history. the scholars did, a word search, and they found that that's not what it in 1789 and you say that it's moving baseline and that it doesn't constrain judges which was the main promise of originalism and you also say that it leads to a failure to defer to democratic, which is

the other thing that was to happen with originalism. and it's not happening. so that's all encapsulated in your defense of the case and now i want you to talk about jobs and abortion which is another of your major examples you probably going to talk about a little bit of that. i did dissent in that case and we wrote justices kagan and sotomayor and i wrote a pretty long dissent and had a lot of different reasons why we thought the majority was wrong in that case. and one of the reasons i think directly relevant to what i'm in this book, remember the two promises that the textualism made this is going to be a simple method to which i give a wonderful response. i say, oh, okay, that isn't a very good response but nonetheless. all right. i tried to explain, but remember the second promise, the second promise was we have a system that will make it much more

difficult for a judge substitute what he thinks is good or what the law requires. you know, i said, you know, they try not to do that. nobody can do it perfectly. i did grow up in san francisco. i went to lowell school. i've lived the life. i've lived and yeah, we all have. by the time we're in our forties or fifties we have sort of views about profession and about the country and about our neighbors, about all kinds of things, and to try to hold any job and keep all that stuff totally out. you can't, you can't jump out of your own clothes, but you try to limit it and. i think judges, too, they try limit it. so don't take. what i'm saying is 100%, but it's there what the judge is trying to do is be honest about the decision decided that what you just said but what about the textualism will that hold us in

check when we slip back to the san francisco school board that's my father's watch. and so the san francisco school board. but will it and i found dobbs interesting there because to my imaginary textualist opponent on that, i would say, hmm, why did you overrule roe 50 years ago? decided why did you overrule of casey v paulino 30 years ago? i mean, isn't there a principle in the law called started is he he knows latin says be careful let's no criticizes which means something's decided it's decided and don't change it even if it's wrong. now, that's not 100%. the court did change plessy v ferguson went to brown versus i'm glad they did. it's not 100% but you're better

limited so i would like to mr. textualist what are you going to overrule next? mm. are you going to overrule or are they candidates for overruling any case that wasn't decided by a textualist. well, if that's your view, every case is up for grabs because there are hardly textualist cases before. quite recently. so we're going to have no lord over every case. what do you think? the clients will love it. they'll go into the lawyer's office and say, you tell, me, i'm going to lose. but let's tell them, overrule it. this is going to be a mess. oh, you don't mean that. and he doesn't. and they don't. what do you mean? well i think you mean the cases not only weren't decided according to a textual method, which is about all of them. nearly all. and you think. and you think they were very wrong.

oh you think they were wrong. and so we bring that in as a ground for overruling now, let's step back page one for a second, because you, nino and the others criticize me on the ground, which i try not to do, that you just pick the cases that you think are good. and know what you're to do is get rid the cases you think are really wrong. does that give you opportunity to. what you think is good when you decide what you're going to overrule? i mean, you think they're wrong on what basis? on the basis of textualism? no. on some other basis, what basis? i mean, what is it? i mean, there you are in the same boat precisely that you say i'm in. and so you have the conscience

of a good judge in deciding to overrule, just as i must do the same. okay. in cases aren't there for overruling and, so i don't see much to choose. there at best. so now we have two promises. simple, clear, definite that one would by the boards. number two a better way of holding judges in check. well, there it is by the boards in dobbs. in my opinion. and so now we're left with i say what we're left with nothing. that's i want to say we're left with next to nothing. and more than that, i think there is something dangerous about this. dangerous? why? well, you know, i hate to admit it, but congress is closer to what the people of their constituencies, need and want than the supreme court up on that hill there with a lot of nice rooms and not very good

food. i was in charge of getting the food ready for years because i was a junior justice and. i admit it wasn't very good, but you say and they will try. not always successfully. they're in a position because they know the past to some degree present statutes. they have to have campaign in coherence. they'll try, even though we may think sometimes they fail and they're always people think, yeah, they failed here. that didn't fill to try to help try to make a better and senator whom i worked for he said this. a lot he said everyone this building the senate everyone in this building wants to help america. he they have different ideas about how to do it but you see their goal and if they didn't somewhere some goal like that they wouldn't be here. all right.

you think they want to help america in the supreme court, but they don't get around to the constituents and they shouldn't. and so the chances of an interpretation that doesn't further is very often a desirable in this law, the chances of that have just gone up and the chances of interpreting this talking about this constitution in a way that helps. what marshall wanted to do, he said, we can see the future only dimly if at all. and we want a document here written in fairly abstract words, because you can't montaigne said you can't just write everything in the us constitution and this is only 27 pages i think something like that but.

riskier risk that rather than when you just read the words at time when as i said, the women and the slaves were not part of the system. when you just read about that person would have thought of that at that time. those words meant and how they should be applied that you will eliminate something called, the future and be careful and try to understand those basic principles those basic values and use them when they help use them when they help. and so what is it that worries me so much if we move in the wrong direction of what henry hyde said, my professor and albert saxe, my professor years and years ago that the law is there. it's a human institution. this law, it's a human institution designed to make 320 million people now live tibet, live together. every race every religion, every point of view. that's what my mother said. tell anyone.

we lived in san francisco, said there's no sign, no point of view. so crazy there isn't somebody who doesn't know that in this country. and she said they all live in los but don't say that. but oh yeah. okay. you see we have to, says henry. art, says saxon. these documents are designed to help us live together, even though we disagree and to weaken that is, a risk to weaken that is a risk to weaken. other is a risk because it doesn't help us enough. people might say, why follow it? why follow the law? why do what the law says when we disagree with it. and there the rule of law itself is weakened too. i think that will happen. know, maybe who knows? now you see, i wrote the book. that was a very short question and a very long answer. it's an extremely serious answer

because you just said that textual is an originalist. some have to original justifications first that it was going to constrain judges, and second, that it would lead to deference to, democratic outcomes. and it's done neither. in fact, it's done the opposite. and then when you come to the third reason, well at least we're following the text, you say essentially random which decisions you're going to follow because all them are inconsistent with the text and that would lead to overturning of them. so given the power of that critique, i just have to ask why citizens conclude that it is all politics, because that isn't politics. politics. i mean, i learned politics. i'm in my office in the senate working, on the staff. i come back to my office and there's a young woman who's looking through all my papers and i say, excuse me, can i help you? and she says, yeah, i just wanted to find out. she says, what do on the staff do here? so i thought the best was to go into your office and look through all the papers.

i think, hey, that's not a very good thing. but before i got at her, i thought, the following maybe she's a constituent mm hmm. that's politics. you see her? and if senator got a telephone call to one from the secretary of defense and one from the mayor of wister, which will he take, first? of course, the mayor of wister obvious to anyone in politics. that's where the constituents are, huh? and will i be able get the republicans and the democrats the executive session? and who's going to be popular party and will i do to keep my seat and which consist to ensure i listen to you in which do i not? and is a yes or a no here going to help me win the primary? oh, oh, that's. do i see that in the court.

no, i don't. i don't see that. so that's why i had a lot and i say you might find people different political philosophies. yes. and you might even find what i call real politics sneaking in occasionally. when frankfurter said to the others during the terrible time they were having, getting brown in forest and they a miscegenation case. and he said to the others, i read don't take it because this is what the south is afraid of. and if we take it and hold it, which we must do, god only knows what they'll do with brown. no one's helping us, not the president, not the congress. we've got to get that case enforced. brown and they did take the miscegenation case. but later but later. and that's why i've always thought i'm very glad that earl warren had some experience with politics, saying it was tough, getting that brown partly

enforced. and so i'm not saying never. i'm saying never. but i am saying you have things like your own background that sneaks and you have political and you have listening to others and you have sometimes the real politic. so ended up by not a good quote, but i used to say, you ever read p.g. wodehouse like p.g. wodehouse? very funny. in one of his statements, he says of bertie woke up one morning and he wasn't disgruntled. but he wasn't exactly grumbled either. so that's sort of it. but i think is better. i it's better. no judge takes into account the of the day but all judges do take into account the season the climate of the season.

and that's sort of where we are, which not a real answer, not a definite answer, but an experience allowance. why? at the end of the book, i would say you're a very you're famously optimistic and your optimism uplifts, all of us. it certainly uplifts me in tough times. but i would call the end of the book studiously agnostic about whether is merited. you say these are very serious times. you strongly oppose the tax fairness project and you fear that it may be unstoppable and. yet you say in the end you think that they'll pull back. why do think they'll pull back? well, you're on the court a long time. you're and it takes time to adjust, i say. and the longer i was told this by one of the president, she said you'll discover something. the applause dies away very

fast. you like the job. and that's exactly happened in the job. great seriousness of attention and effort and true of everybody on the court. that's true of everyone. and so i think over time over time, what the job like in that sense i'm a three years and i'm some kind of meeting of young lawyers. one comes up to me and he says, oh, justice breyer, i love your opinions are so good. and so well, would you mind signing my programs? i say, sure, i'll soon as he walks, he turns to his friend and he says, that makes for okay. but that's what it is. and so the privilege of the is having it and having to give your all to this case and then that case and, it's sort of like a doctor doctor who doesn't say, oh, i'm not to treat this person because he has such a boring,

you know, you know, that's not what it is. so i think over time, the flaws in this particular approach will become more apparent. your cases and it won't give them the answer and they'll see it right there and they'll know it when they see it or they'll think, good, this gets rid all these up appeals in this area which coming and they'll discover it doesn't and then they'll find that it give an answer that actually in terms of consequence is for the people who have to live under that particular statute and they'll discover that it isn't so impossible. they might think some of the time to go back and see what the purposes were when congress passed statute or what at hand when this constitution was written and after civil war,

when slavery ended. and a few of the other amendments got passed like the right of women to vote. and so what they'll see that they'll see it and the climate of the era just will hesitate to make them hesitate hesitate to go far with this, you know, because can use it in a way that doesn't hurt much. you can say textualism read the statute. well, okay, i agree with that. yeah, read the statute. decide a case without reading the statute mean i got that one. but so so you don't know quite where it will go and so one of the reasons as i said i wrote this i wanted to go as far away as possible and that's one of the reasons that i wrote the book so that it's one possibility might be another.

you say it's not politics, but it is political philosophy and the political philosophy is strongly and it's an to strike down the society, if not the new deal. and this is strongly held and maybe they won't pull back. they really believe it and therefore it they will to strike down the great society and the new deal might that happen? and if it does, what would be the consequences. it well, it could happen. i wouldn't think they were good consequences. remember when they changed the big movement towards agencies towards, big central government or bigger central government and shifting power to washington came during the new deal and the new deal was itself a paradigm shift from a previous way of looking at the court, a way that made some sense at time. that's what's sort of interesting. alan greenspan wrote a very interesting book to me about it, about a the history of

capitalism in the united states. and he says and he's pretty documented that before civil war, this country was very poor, really poor in. the south, too, they couldn't afford to go to school. they couldn't afford a church. it was a very poor country. but after the civil a boom, inventions, electricity power, railroads and moreover ways of financing those activities. so across the country they spread and people became rich. and from one of the poorest countries in the world became one of the richest. so in my imagination, i'm of that lochner court. the court everyone despises, but they're sitting there at a time when they're thinking the movement against property, the movement against contract, the movement against laissez faire that's going kill the goose. it's laying a golden egg. and so they turned against by the time you get to the new

deal. the seasons changed. you want to believe in affair and that all the businesses alone in a period of 24% unemployment when people on the bread lines when the great depression is right there no and the who said this roosevelt said it but i can't remember where i read it he said try something. if that doesn't work, try else and if that doesn't work, try something else again. but keep trying. yeah, there is a season. there is a mood and that's going on in the new deal and that's going on in a movement away. when you go to the court that it changes attitudes and so even with what you say, maybe you go there and say the worst agency in the world ever was osha, because osha supposed to, you know, save people working.

and they have a rule which says the top three rungs of a ladder so no one walks off the top. oh, okay. they did have a rule like that know. so so maybe they're not perfect, but by the time you try to get rid had a law clerk once who looked up every agency he could find where the people in, the lower parts of the agency had tenure. they were appointed by the people in the higher board that had tenure. and that was an in the case. and we found pages and pages worth and all that's going to change really. all that's going to change. you see, i'm of how far they can go and how far they will and i think the world i think life will catch up. i think life will show them. and i think, by the way that the changes in administrative and i'm so glad someone this group took my administrative look at what and but in administrative

that that isn't exactly textualism the words there in the constitution are legislative executive and judicial and that doesn't tell you too much which way to go in these cases anyway but they still might have the attitude you have, which is a different kind of a problem. those are such powerful points. you argue that the fight, the administrative state is not rooted text and you also show that transitions of the court, the lochner era to the new deal and then individual to warren court were driven by changes in society. but this move is not the textualist revolution which was inaugurated in the eighties by president reagan doesn't arguably have the support of majorities of the country the way the previous shifts. and that is, i guess the argument that it's not going to be constrained public opinion because it's set up in defiance to public opinion, maybe that's that i'm not going to disagree with that. but but it isn't that well

president reagan believes this so we'll do that that's just not the court i mean, your pointed your there you better do what you think is the right thing and because there's nowhere else to go and that's a more powerful impulse than well you were appointed by those groups of people who thought there was too much power in washington. and then you couple that couple with, all right, let's get rid of agency x, y or z, and you begin to think of what might, hmm, hmm. if you hesitate a little bit about, going too far too fast. so there are a lot of things in human and there are a lot of things in judge and there are a lot of things in the court itself that prevents it or hesitate or stops. you're going in some of these areas, too, away from what will

make the country. and this is why i use this word 50,000 times, but we'll make the country work. and that work, i think use it. i found a place where marshall used it and i like it because making certain that the law is workable is certainly one of the ways you can describe the various things that i and others have traditionally looked at in order to interpret difficult parts of the constitution or the statutes. these are extraordinarily challenging times for democracy as we in america and around the world and, polarization and social media have created the framers nightmare of public discourse based on passion than cool reason. why is it important that the court maintain its during these extraordinarily threats to the rule of law? and will this court be moved by the remarkable times we're in as

it decides whether or not to proceed on this textualist path? as far the ultimate answer to that question, i say the reader is going to have to read what i try to put down and take it as one person's point of view and see what they think the other is and. make up his or her own mind. but what you're saying there is what you've written well and your book very well. you said, let's go back. let's go back to see what the framers read. they read they really think that we're supposed to read in latin just bought the pony but the seneca cicero. some of the greeks the stoics, they like the stoics marcus aurelius and epictetus, which is the obvious. yes. the epigram for your yes. book of the book, which i actually i can't without my constitutional reading glasses says don't tell peter. it says, tell people about what you do it do not explain your

philosophy embody it. absolutely. no, i think that's just what i write either. but in in any case, you say they read these things. they read the french enlightenment, they read david hume, which we never read in philosophy on moral or moral and the basic moral of the scottish enlightenment, the french enlightenment and and other people, the romans is a it was we're just filled with. as joanna, my wife. i am. and and we're just we remember the classical virtue of stomach, temperance, courage wisdom and justice and try to keep those passions under control. try to keep them under control and try to use your reason. and that's what madison says. madison says. we won't have that much a problem. there will be factions. yeah, i learned this from you.

there will be factions all over this country, but it's big country and the factions will all be different in different places and time it take time to get these views across where can have an impact and the governments complicated put those three things together and you will have time for people to reflect and they in the government like they individually will be able to have reason in control. mm hmm. well, today means nothing or not much in time. zero in complexity, but it's more complex in different. and so can we find that substitute? can we find that substitute root for? those things that madison and the others and they're all over here. that room, madison and the others thought would bring the country under control. jeff said the, way to do it is

get people to read and read deeply. i think that's i know what kennedy used to say, senator kennedy he would say that you're trying to work on a project. you have some opposition on, find the person. and i think mills said something like this, find a person who really disagrees with you and you think intelligent and go talk to them. wait, don't just talk. listen to listen and listen. and eventually they'll come up with something that you really agree with. and when they do that, you say what a good idea you have. let's see if we can work with that and. yeah, and they will and you'll succeed. and if you succeed and get 30% of what you want, take it don't

hold out for 100%. so all your followers will say, oh, how great you are in getting, oh no, you didn't get it that you say get the 30% and take it and i saw a lot the press would go and say, senator kennedy did such a good job on this bill and he'd say, don't thank me. thank orrin hatch. he's the one that came up with the idea that allowed us to get and produce something that will be helpful, because he'd say to his staff, keep in mind this credit is a weapon. it's a weapon. and use it. if you're a success at what you're trying to do or even a 30% success, there'll plenty of credit to go around. and if it's a failure, who wants credit? yeah, good point. so there and when i tell this to the fifth graders of the seventh graders of the high schools students and i'll tell you something.

you can hear a pin drop silence. they're listening. they're listening. because i say to them when they ask you what they think. they should do. i say, i'm very sorry it's now up to you. it's not up to me. you're the ones who are going to have to figure out how to save this country, which has had its ups and downs, that that we're in. churchill said the united states always does the right thing after trying everything else. but yeah, okay. but not so bad at getting people together and covered. they came around and saw how the old people were doing and did they have food and neighborhood groups or created. and they were created in a lot of different cities, a lot of different but we can work together and we have a history of doing that up and down, up and down. but what's interesting to me is the attention that those seventh graders or eighth graders or ninth graders were paying to this because they want to do

something they want to help. and that's what i came away with and it's that mood in that room of the high school the mood in the room of the high school students, the at the end where i say yes, no. move me in the direction of being optimistic i have the same experience with this amazing job of convening high school students and students of all ages and listening to their thoughtful debates. it really is the way things are supposed be. but i want to go back to this remarkable. you talk about madisonian deliberation, a judicial virtue, and using powers of reason to attempt passions. and you make a very strong case. madison was a pragmatist and that he, after all, changed opinion about the constitutionality of the bank of the united states based on the fact that had worked and people had come to accept it.

when you about changing the minds, not only of your colleagues on the court, but of last and kids in high school today that are trying figure out how to apply textualism and originalism might you appeal to madison and say it was this pragmatic approach rather than jefferson's strict constructionism which wasn't even supposed to be applied by the supreme court, but by people in constitutional conventions that actually represents the true original understanding of the way the courts were supposed function again in the future. you brought that up and. i think that's a good point. the way i put it in the past is i'll say to a graduating class, if i'm speaking to a graduating class college, i would say, you know, i can't really tell you what do i can hope i can hope that you'll find someone to love. i hope that you'll have a job that you find. and i can hope that you will participate in public life if voted leaves that may be library

commissioner or a member of that board. you may work the school board. there are a million ways you can do it. and the reason i can say with some authority on this last point is i have worked with this document here and i believe strongly that if you don't if, you do not. and i think adams madison might evolve this. if you do not work in public life, if you don't do that, this won't work because it foresees you are doing that. so i hope you do. i can tell them that because told my work. yeah. and we are and that's i did this and derek spoke if you want to i quotation on on that particular he wrote a pretty good book about education and he says though i'm not sure it's true he says pericles in athens when describe at the famous funeral oration all the virtues of athens he says the democracy is

everywhere, he says. and what do we say in athens of the man who does not participate in public life? we do not. he is a man who minds his own business. we say he is a man has no business here. pretty tough probably your remarkable and inspiring optimism in democracy rooted in an athenian sense of the fact that our full potential only achieved through political participation remains inspiring just. as brier, i must thank for embodying the matter soni and virtues that the framers hoped for when thought about judges would thoughtfully listen to all points of view with a sense of the limitations, the role of the court in our society, and modeling the various dialog in which the future of the republic depends. we're here in this sacred space at the national constitution center.

i want you to just gaze over on independence hall, which we're about to celebrate the 250th anniversary of, the declaration of independence. i think we all could benefit from your optimism. are you optimistic that the declaration, the constitution will thrive the next 250 years? and why should be optimistic up to a point. lord governor, we don't know. we don't know. it's an experiment that's in washington says. he says this is an experiment. he wrote that letter to a friend, lincoln. johanna got our grandchildren. she you give them $20 each if they memorize the gettysburg address. and what's that about? i first to answer our fathers 88 fourscore and seven years ago our fathers came on this continent to create a new nation conceived in liberty and dedicated to the proposition that all men are created equal. today we are engaged in a great

war to see whether that nation i like these or any nation so can see in liberty and so dedicated to that proposition can long endure. what's he saying? it's an experiment, you see. and it's my teaching leads me to that. why you say the teachers, the think they're like the illuminati lumiere they're the enlightenment figures. they think we a great theory, but it'll never work. and then they think, let's see, united states is going to try it. oh, let's see how long it takes them to fail. and there we are. washington an experiment. the people in the room. if they could only talk. now we're writing an experiment. franklin constitute and if you can keep it. lincoln lincoln long endure. we can't promise it. we can just try. and it's that experiment.

and the reason that they should know it is why i think it cost $60 requires you some amount of money because they did memorize parts that and that's what we're living in. and in living in that experiment we're no different than people who lived before us or people lived after us. friends for his services to the constitution and for inspiring all of us to the american experiment. please join me in thanking justice prior. to thank