[MUSIC] This next part addresses a part of the Constitution that many people think of first and foremost when they think about the American Constitution and the protections that it affords. And here I'm talking about individual rights. Rights such as freedom of speech, freedom of religion, the right to be free of discrimination based on race the protections that one has as a criminal defendant. These are the rights which many people associate most predominantly with constitutionalism and constitutional protection and they are a part of the American constitutional order that was there almost from the beginning, but has developed in dramatic fashion over the past 50 or 60 years. The regime we have today for protecting individual rights looks dramatically different than it did 100 years ago, and certainly dramatically different than it did 200 years ago. This is a subject which can, and in, at many law schools does occupy an entire semester long course but here, rather than focus on specific individual rights, I want to draw together and emphasize some general themes that I think, situate the individual rights jurisprudence of the American Constitutional order within the longer textual and historical tradition that I've been talking about during this segment. And I can focus on a few major points along this line. First, as I've alluded to before, the text of the constitution vis a vis individual rights, just like it is in other sections is remarkably sparse and undefined and, the mere words on the page don't do the work in protecting individual rights that our constitutional culture has come to want them to do, and I'll offer some examples here. Second this is an area where we've seen dramatic changes over time in the national enforcement of individual rights guarantees. Our constitutional world is fundamentally different today that it was a century ago and changing even year by year, decade, decade by decade in some ways I'll discuss. Third, I want to address two fundamental general doctrinal innovations that the Supreme Court has operationalized over the past century in building the Constitution of individual rights that we have today. The first of these is the concept of incorporation, the idea that rights which as written in the document's text apply and constrain only the national government, have been made applicable and universalized within the American constitutional order to bind all government actors, national, state and local. Next, another general doctrinal device which is quite important is the concept of balancing, or a nuanced standard of review, that the justices apply in particular cases across a wide range of individual rights areas: race discrimination, sex discrimination, religious freedom freedom of expression. And here, the basic notion is that no individual right is absolute. In the, in our constitutional discourse the claims of individual rights holders are and must be balanced against compelling claims by society at large for a different result. And this in, to a large, great extent, is the project of American constitutional law in the individual rights space. It is the specification of which rights are worthy of special protection that, there, then, that therefore, demand especially good or compelling reasons from the government in order to affect those rights. And its this shifting denomination of which rights are important enough to, to demand particularly good reasons from the government that is a large part of what the judges have done in, in construing the Constitution over the past half century or more. Fourth, I'll briefly address what's evident when one considers the development of individual rights doctrines over the past several decades, the somewhat permial, permeable boundaries between formal constitutional doctrine and public opinion about those rights. Simply put, as society decides that protecting a given interest is relatively more important, we would expect to see and we do see doctrinal shifts in the judicial protection, the constitutional protection for these rights. Nowhere is this more evident than in the dramatic change in the manner in which the courts protect rights for certain same-sex individuals, or even individuals to engage in same-sex relationships, and I'll speak for a few minutes about that. finally, as important as the Supreme Court has been and still is in protecting individual rights, there are those who wonder, and, and a question that's worth posing is, is the court too powerful or too supreme in this area? A question to consider is whether our rights would be even more firmly grounded if we asked and expected legislatures, executive officials, police departments, and other institutional actors to take seriously these rights, instead of leaving them for judicial resolution. I'll address all of these briefly in turn. First, let me turn to the concept of how inadequate text is sitting on the page alone and here I'm going to use two textual guarantees of rights. The first here, Congress shall make no law abridging the freedom of speech, or the press; or the right of people peaceably to assemble, and to petition the government for a redress of grievances may be familiar to some of you if you've read the US Constitution. This comes right out of the First Amendment of our Constitution. Now the second clause here looks good, as well. Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. This seems to protect the same freedoms, indeed it was likely modeled, on the United States First Amendment as it came afterwards. The second clause I read, labeled as B on the slide, actually comes from the North Korea constitution, where we know that despite these paper protections, citizens dramatically do not have the same protections as they do elsewhere. And this is a vivid and perhaps almost too extreme example of the disconnect between mere words on a page and the institutional and cultural protection of those rights. If the North Korea example seems extreme, I'll turn to a more accurate historical example from our own constitutional development. This text comes from our own Constitution, the 14th amendment, we call this the equal protection clause. No state shall deny to any person within its jurisdiction the equal protection of the laws. It today is on, one of the most fundamental personal protections against government discrimination and it forms a core fabric of our Constitutional rights. This amendment was enacted in the immediate aftermath of the Civil War, in the late 1860s and so it has been on the books for almost 150 years as the Constitutional law of the land of the United States. Now, as our history shows, for the majority of this amendment's life, these words were as unenforced as the words of the North Korean Constitution I showed you a few minutes ago. These words were on our books through a period in the early, late 19th century and early 20th century of brutal oppression and Jim Crow segregation in the South and, dramatic discrimination against African Americans throughout the entire country. As these examples illustrate, words on the page by themselves, are inadequate protections of personal freedoms. What is needed is a more thick institutional culture of enforcement and acceptance, to operationalize those words. To illustrate this point further I'll use the words of Dr. Martin Luther King Jr., very early in his life actually as a high school student when he gave an award winning speech precisely on this issue of the empty promise of amendments on the pages of the Constitution without more effective enforcement. King said America gave its full pledge of freedom 75 years ago and backed it with amendments to the national constitution where there should no discrimination based on race or other criteria. But as King notes, Black America, in his, in, on this writing, Black America still wears chains. Thirteen million black sons and daughters of our forefathers continue to fight for the translation of the thirteenth, fourteenth, and fifteenth amendments from writing on the printed page to actuality. It's this notion of translation that has been a theme of this segment be it whe, whether it be in the separation of powers area or this individual rights area. The words on the page don't interpret themselves and they certainly don't enforce themselves. That requires an ongoing and evolving societal commitment. And this is what King both was writing about in the 1940s and then participated in transforming and translating the meaning of the fourteenth amendment into actual legislation and actual court decisions, through the remainder of his life. I'll now address two specific doctrinal areas where the Supreme Court has constructed interpretive techniques and doctrines to engage in this project of translation, that Dr. King spoke about. Without going into specific areas like freedom of speech, or freedom of religion, or criminal protections for criminal defendants, I'm focusing on two general points that apply broadly across the landscape of individual rights in the American Constitutional context. The first of these is this idea of incorporation. Incorporation is what the Supreme Court did from the 1925, the 1920s through the 1960s in order to universalize many of the most important individual rights protections in our constitutional order. If you look at the Constitution's text, and here's an example of the first amendment it quite clearly says, Congress shall pass no law affecting freedom of speech, press, etc. now, if one reads this literally, one would think that only federal statutes must comply with First Amendment scrutiny, that, say, state laws or local police enforcement could transgress religious freedoms protection or throw people in jail for writing something in the media, and indeed, if one reads the text ab, absolutely literally, it applies only to the National Congress. But of course, that's not the way we've read it or understand it in our society and have not read it that way for almost a century. And this relates to the notion of incorporation. What the Supreme Court did starting in the early 20th century, was take cert-, certain basic guarantees, like the First Amendment, which, by its terms, appears to apply only to Congress and incorporate, or fold that into our concept of due process of law, which through the 14th Amendment, applies to all governments, state, local, and as well as national. And the Supreme Court did this for many, indeed most of the core individual rights protections that we hold dear that protect defendants in criminal trials, that protect freedom of religion, that protect our freedom of speech and association. And then the Supreme Court likewise universalized the Equal Protection clause, which by its terms is written only to govern states, and said that the national government likewise has to abide by the core anti-discrimination principles of the Equal Protection clause. So what the Court did through its process of incorporation that took place over the better part of the half of the 20th century was to universalize and operationalize the core individual rights guarantees in the constitution which again, by the text alone, would have seemed to apply only to certain governments and not others. Today, the individual protections that are most important to Americans apply as against all levels of government, national, state, or local. And the core, the basic core of individual rights guaranteed in the Constitution applies equally across the nation and, and doesn't vary, at least in terms of the National Constitution, from state to state. So this was a key judicial move that was unforeseen by the framers, but that has done, a great deal to operationalize the culture of individual rights that we have today. The other core judicial innovation that I want to emphasize in that it spans a wide swath of individual rights doctrines is the way in which the court, particularly in the late 20th century through today, has articulated different levels of scrutiny and different levels of balancing individual rights against other interests. One of things, one of the things that's clear when one thinks about individual rights is that no matter how important a given individual right is that right becomes problematic when it is applied in an absolute sense to an extreme at the expense of all other rights or all other public values. We live in a complex world where often there are difficult and fundamental trade-offs between, for instance the widely held desire for privacy in our personal communications and the equally widely held desire for national security and defense against threats that demand a certain tradeoff. We value freedom of religion deeply, but we also realize that there are certain commitments and behaviors that we need to regulate universally in society and not allow religious exemption. This fundamental tension is generates much of the debates in, about individual rights in our in our legal culture. And in response justices on the Supreme Court over the past half century or more have articulated a set of doctrines which apply broadly across individual rights that attempt to balance these different competing considerations. And we think of these as levels of scrutiny. The basic principle is that most of the things government wants to do, it can justify against lawsuits if it can articulate a merely rational basis. Essentially, as long as it can give any decent reason it can justify a distinction it makes. So for instance the government in its tax code draws lots of distinctions between how certain things are taxed or different levels of tax that some people pay as opposed to another. Clearly it creates inequality. But that inequality is not, according to judges and others who participate in constitutional interpretation, is not the kind of equality that we ought to care deeply about, and to say we care deeply about in a doctrinal sense, is to say we give certain problematic dimensions of inequality, we give them strict scrutiny. What strict scrutiny means is, and an example would be, when the government treats people of different races differently, we are going to apply the strictest possible scrutiny, given the problematic history of racial differentiation. It doesn't mean the government can never differentiate on race, it just means that the government better have an especially good, or compelling, reason for doing so. This debate became overt and becomes overt whenever the Supreme Court takes a case about affirmative action in education, as it did mo, most substantively over a decade ago in the Grutter versus University of Michigan case. And in that case the court upheld the, the University of Michigan Law School's use of race in law school admissions, but only because the law school made a compelling case that governmental consideration of race in admissions was necessary to build the kind of law school class to, that produced the optimal learning environments and that produced the kind of graduates that employers and, and other elements of society wanted. But, the only way that race, could be considered in that case, was due a particularly compelling justification, given by the university. This kind of tradeoff, this kind of balancing, applies broadly, across a number of different individual rights doctrine, and it's something that's been constructed by the judges over time, in order to mediate this difficult balance that I've been talking about. Not only does the balance mediated between these competing considerations, but the way we weigh different interests, the way we kind of do this judicial balancing, quite clearly changes over time, in response to changes in public attitudes. This judicial balancing, this use of the tools of different levels of scrutiny has been with us so, for some time. But equally clearly, the way judges strike the balance, the particular weights they put in the scale in particular cases also change over time as some interests gain in importance. Others wane in importance and this gives a certain dynamism to constitutional interpretation, where some interests which even in very recent memory were disregarded suddenly become more important. Thurgood Marshall who himself as a attorney arguing before the Supreme Court in the 1940s and 50s helped shape our changing constitutional understanding of race discrimination, then gave voice to this when he himself was a justice on the Supreme Court. As in Marshall's words here, the spectrum of interests clearly show variations in the degree of care with which the court scrutinizes classifications. And here I think it's important what Justice Marshall says. The way the court strikes this balance depends, in his words, on the constitutional and societal importance of the interest adversely affected. Simply put these constitutional doctrines about individual rights have a certain judicial structure but they are not entirely apart from the social structure of the broader American community, and the values and weights that America puts on given interests. Nowhere is Justice Marshall's sentiment more evident in recent years than in the dramatically shifting doctrine that the Supreme Court has articulated involving the constitutional, constitutional protections of same-sex relationships. As recently as 1985, in the case called Bowers versus Hardwick, a majority of the Supreme Court upheld making it a crime for two consenting same sex adults to engage in sexual relations. Less than two decades after Bowers, in 2003 in a case called Lawrence versus Texas, the Supreme Court considered, considered and explicitly rejected Its ruling in Bowers on the permissibility of criminalizing same-sex consenting adult relationships. In Lawrence, Justice Kennedy writing for the court declared the right to choose one's own intimate partner as sacred and undeniable and, wrote an opinion which explicitly overruled the court's prior precedent from only 18 years before. This is a modality we've seen on other occasions through Constitution, Constitutional history, of course the Plessy versus Fergon, Ferguson decision from the 1890s was overturned in Brown versus Board of Education in 1954. And in many other areas, but rarely so rapidly as in the area of the permissibility of same-sex consenting adult relationships, and the speed with which the court overturned its Bowers precedent corresponds with an equally quick shift in public attitudes on the acceptance of same sex relationships, which is today translating into rapidly changing legal norms and constitutional norms in the area of same sex marriage. This is an area that we're more vividly than most, and more rapidly than most, but just as assuredly in other areas we see that the legal work that the court does is not inherently sealed or divorced from the public opinion in the broader society. And this is one of the engines that generates constitutional change. It's not that the constitution is living, but we the people are living. And our changing attitudes clearly inflect and ultimately affect the way that the Court interprets this document. Finally, after all of this discussion of the Supreme Court and its important role in protecting individual rights, it's important to remember as the framers did that all involved in government and society have some role in protecting these basic individual guarantees. Indeed a society that relies exclusively on a group of unelected judges as the sole guarantors of undi, individual rights is risking those rights diminishing in dramatic ways. This is particularly true in areas where individual understandings of rights, such as privacy, are under increasing pressure, and very rapidly so today through technological change that the law struggles to keep pace with. In such areas, rights protection will be most effective if the, the more responsive branches of government like the executive branch agencies and the legislature itself are in the forefront of protecting these rights. And sometimes even the justices themselves recognize this, that they are not the best Institution to stand as a bulwark against these rapid technological changes. Justice Alito in the recent, Fourth Amendment case US versus Jones which involved whether a continuous GPS surveillance device attached to a car for many days created a Fourth Amendment violation expressed this notion of institutional competency in the language you see here. For Alito at least, the best solution to privacy concerns may be legislative. And Alito's views are shared by his others on and off the bench, particularly, in areas like this. We've seen it also in the, in areas such as race discrimination where Brown versus Board of Education in 1954 was an iconic and important Supreme Court decision in outlawing segregated schools. But, for the lives of minority individuals in the United States, much greater gains came a decade later with the Civil Rights Act in 1964, a congressional statute, which because backed with the full enforcement apparatus of the federal executive branch, worked much greater change in people's lives than the Brown versus Board of Education decision coming from the Supreme Court. So this is the last theme to remember as we talk about the importance of individual rights. The importance of the court in translating and enforcing those rights is that as much as the Court does, we cannot ask the Court to do everything in protecting these rights, and it's important for any Constitutional culture to remember the role of other branches and the public itself in operationalizing and giving shape to these foundational individual guarantees. [MUSIC]
