tv Heritage Symposium Discussion on Constitutional Liberties CSPAN January 7, 2022 11:25pm-12:44am EST
[inaudible conversations] >> good morning. we are back ready i am the professor at the scalia law school andnd executive director for the study of the administrative state. we are so thrilled to be cohosting this event today with the heritage foundation which is so gracious to the facilities and the planning john malcolm is the master of
collecting people landers i really important topic today which is 30 years of jurisprudence and the influence moving forward also a former clerk to justice thomas and i will be resuming a role of co- professor when he returns to the law school in the spring the second panel is on the and then to have an excellent panel for adam that i will introduce briefly and then introduce the panelists. adam is a former law clerk to justice thomas and clerked for judge higginbotham from the court of appeals for the fifth circuit and previously served many years as a partner at bartlett and has been appointed two times for the supreme court and arguing 11 circuit and second circuit along with other extensive work of the pellet advocates. graduated from university of chicago undergrad.
and then sneaking in a astrophysics degree and from cambridge obviously the very a smartest panelists origin us to be who also very smart. he will lead us in a discussion. >> thank you forwh that wholesome introduction it's great to be back at heritage. i was here with justice thomas as an attendee and it was the goodbye lunch. you may not even know that they were here. and not meeting any introduction also the former
pt clerk and then the only non- cte clerk on the panel. [laughter] professor and former judge michael mcconnell and down at the end my brother was a partner most important the former solicitor general the great state of west virginia featured so prominently into discourse with a very wise senator. [laughter] >> and then to be interspersed and anecdotes of justice thomas' lead and then we will ask questions having to do with the panel discussion at the end when we have time for audience questions. the starting off on the topics we are talking about but the list of things you're not
supposed to discuss at thanksgiving. [laughter] surace, religion and i guess you're not supposed to exercise your totalri right to free speech at thanksgiving i do not follow these rules and will not now. because we cannot be on panel without noting he is widely acknowledged of brown versus board of education but justice thomas is the foremost proponent of are colorblind vision of the constitution and has had so many many times. and has not made yet nor has justice scalia made that originalist case for the constitution i want to ask you why you thought that hasn't happened yet? first. >> it's customary on these occasions to be invited to speak especially here today
because we don't have to wear a mask at the dais. and people that have been reminiscing i cannot resist reminiscing the first time i came to heritage is when i was lost clerking for justice brennan and he gave me special permission to sneak over to hear william that the ball for strategies of litigating against abortion. some things never change. that you are asking about race iquestions and it was quite interesting and quite striking our regionalism has not played much of a role in the race cases of course including brown fee board where the court asked for me argument on the question of the legislative history of the 14th amendment on the question and
then concluded it had nothing to say. something which i think they did not look in the right place but also in the more recent cases with justice thomas and the amicus briefs over the last decade or so. but you see usually two or three fairly serious amicus briefs in support of affirmative action by various parties and i don't think there has been a serious original brief against affirmative action and those conservatives have all beennt consequential and that progresses that were consequentialist and then there has been a original contingent among the progressives and this is the puzzle. >> is it because the academy
which was responsible for unearthing this history you have done so powerfully old has not doneot its job? >> i do think that is the answer. the 14th amendment or reconstruction of regionalism has been slow to take off but it is today with the academy i think mostly so far with other aspects of the 14th amendment it is a complicated story not that there is no history bearing but there is so much and many complicated ways especially having to do with the adoption of the friedman bureau act which was directed at providing special benefits to the newly freed former slaves of the south. and just to give a very quick
summary, when the legislation was first proposed by the r-uppercase-letter republicans, the democrats objected partly on the ground that this was class legislation meeting discriminatory directing benefits solely at one racially divine class so the republicans divided howca to respond that the actual response was to amend the bill and include loyal refugees meaning opponents of secession in the south that are also driven from their homes and brutalized by the system so you can see that the opposition to racially based benefits was there at the beginning but it's not quite
sost straightforward as the constitution is colorblind and in fact from the other side congress actually had before and rejected a straightforward colorblindness to the amendment. >> we will come back to that colorblind concept that professor mcconnell but this strain that jumps out to me and i'm not saying it's for the same reason - every single time that it is the frederick douglass quote but there are others. so what do you think that justice is doing? obviously is a contrast to justice scalia.
>> with the advocation that reconstruction and it's important but with the shuttle pass which i encourage with that construction. >> so there is a distinction between regionalism and consequences and with justice thomas to quote frederick douglass he does and says the famous quote. and that education means freedom of light and liberty.
and then t in the mcdonald's clays. the corporation case with that a ratification of the 14th amendment and then consequences and then i think that the court can safely say this is unconstitutional because they do not live in the neighborhoods of people who were suffer from the lofty pronouncement list. is a highlighting of consequences just likeg shaming. not that those are driving the decision. >> he never said anybody
should put a bag over their head or any of that but he will say in these cases about average ordinary americans who will suffer from the mistakes he believes the court has made a not afraid to say you don't live in those neighborhoods with the people will suffer not way we should come out the other way but we came out the wrong way and we wall or hurt poor people and minorities the bad decisionsnorities those are the consequences and it's okay. i think when judge jones mentioned the role his story , it is okay to say your colleagues on the court in the world this is a mistake to have terrible consequences to
the people who don't have the same amount of privilege. >> i do think and from the context in that decision to make better wayay to think about it. that one of the ones that constantly comes to mind as well is about the portion of the old opinion not joined by any other justice to compare and contrast the murder with the work done in faced with difficult life circumstances. so what do you think is going on there? is that just shaming? >> it is. that i think, look. i haven't heard that opinion
in a while but again he is pointing out the consequences that if i remember right and for the defendant. and with that disadvantaged by the system when he is saying let's talk about the consequences of this particular line of reasoning and with the ordinary poor people. does that opinion go to far? i don't know. but it is a piece but not just about work done we need that extended autobiography of work done but it is of the piece of the frederick douglass quote. we are making constitutional errors and those have consequences. i'm not saying this guy should
be executed because i am being consequential but we are making errors harming real people and we need to stop making those errors to regenerate the proper understanding prefer white justice thomas is doing and the call for a consequentialist constitutional law. they are not the same thing it's a bridge to acknowledge it's bad to say we should decide what the law is based on the consequences. >> maybe i misinterpreted? >> i have one really brief thing i think the justice teaches a class with a lot of former clerks but he does where he talks about famous cases and eggs into the facts.
>> and he has always shown an interest as a personal matter but also as a jurist and the fact cases involve real people that they are not just about the law and the principles they are deciding. he would be the first to say that doesn't drive the outcome but there is not only nothing wrong or something right to recognize whatever the outcome of the case the matter will affect but the actual people involved in the case. so shifting to the assigned role on the panel to discuss the first amendment, can you orient us a little bit to the major milestones? if you do give us a few to touch on quick. >> sure. also thank you for having me.
i'm obviously the least qualified on the panel. that maybe i was more qualified than adam but it turns out he is a little rocket scientist. [laughter] so there is a attend to cover in the free-speech space. so there is six real quick categories to go through. if i would characterize the speech as jurisprudence, he has a free speech talk with some idiosyncrasies. he is an absolutist. if it a is speech, it is protected. not everything is protected speech and his cases kids speech are relevant to that point soo there are two cases for me that stand out to illustrate the principle and that which is the science case which he says content -based
discrimination on the basis of content is content -based discrimination therefore subject to strict scrutiny. whether it is a major change or not is interpreted by the lower courts as a potentially huge change. if you have to look at the content then it is subjected to scrutiny and of course with little tiny offshoots for first amendment that read it is very sleeping in its language and the other very recent case another majority opinion is that compelled disclosure's for pregnancy centers and of how he applies with the first amendment principles. and then to sweep away the idea that was percolating that
professionals were somehow protected. and a strain that runs through the speeches that it is protected speech. with thera separate exceptions. if there was a disclosure and with the prohibition treated differently and has been very clear if it is protected speech it is protected. and then one might consider is idiosyncratic and mentioning the speeds on —- speech rights of children. the violent video games and then the most recent was a soul the center and
cheerleader speech case. and then to go back to the beginning the application of originalist that the founders did notdi understand kids to have theas same speech rights as adults especially in school context. another interesting area of campaign finance and anonymous speech. recently in a concurrence which was reallyy not at all about free-speech because it was about the party presentation which he also cares about he wrote a concurrence questioning the whole concept of the doctor in review can come in and say it may not really be unconstitutional to me that is
sweep so broadly all the other hypothetical third parties that we should strike this down. i will come back to that. there is an interesting observation how he really really doesn't like rules that allow judges to insert policy judgments on the ad hoc basis. and commercial speech. he does not think there should be a doctrine of commercial speech and then that should fall into the same bucket and those that question the idea to be subjected to enemy scrutiny and let me finish where these other things where he recently question things if you have been following if you
know defamation law, there is a huge case in new york times versus sullivan people who are public figures that are subjected to a higher standard. and those in the last two years questioning if that has the originalist basis if you go back to the beginning. and then he recently rode wrote a separate opinion with the twitter challenge involving president trump where he questions how you might analyze twitter in the first amendment context. and with those consequences versus consequentialism so
virginia versus black if you don't know that is the cross burning case. and with the intent to intimidate but it included a presumption that cross burning can be preserved doomed to have an intent and the justice dissented from the idea that that presumption is unconstitutional and is an interesting case because you have to ask yourself when you read it you will see how much of his own personal background and then as he decided thates case is also an interesting case because it's relevant today with that distinction between hate speech which is protected and it only conveys a message versus a true threat which is not protected and the line between the justices
opinion and the majority there is interesting to explore in today's ag' of words hurt me and people should be canceled. >> so many things to jump off with that earlier panel there was a discussion of justice thomas today versus 30 years ago and how things have changed. the same time using moderators privilege. i don't know if you remember the nfl films music. and then justice thomas wins. [laughter] and with those big wins but if you think about his big wins often to conceptualize being right all along and then for all of you.
is there a shift with big tech? as a dissenter from the idea of commercial speech but that seems to be a very pro- corporate decision and now here we are seeing that corporations don't all have the freedom they would've had it's not exactly the same. it's not speech. what do you think quick. >> i teach property so i read twitter. last year since the beginning had a practice to say in the appropriate case i would reconsider all of american law. [laughter] i would reconsider what is unconstitutional if it ever
comes up. i will write an opinion about paper many even longer than the dissent of the term limits case. so he does this a lot in dissent and with opinions which i have come to understand now my friends are called essentials that did not exist when i was a law clerk but if you really want to get a sense of it it's really fine just to go through so maybe these big social media conglomerateslo with the public accommodations are public carriers.
some probably read that differently from the speech case because there are platforms for speech that the question of public accommodation common carrier law and property which i do it was the exception for the right to exclude and that common carrier with the common carrier with the you don't like his opinion. >> a lot of people don't like his opinions. but none of them aree here. >> and because he is a common carrier basically the common carrier regulations are basically a way of limiting the telegraph company's right to exclude from sending a entelegraph that it could not exclude the traveler i have actually have no idea of the
details of those regulations but i pretend to. with that question of common carrier public accommodation a better way than to regulate speeches if the government can limit twitter or facebook right to exclude. which is getting people i have no opinion on that i really haven't done the work to know what that would look like but not of their intentions of the commercial speech cases. thinking and as the carrier of messages. and as that person excludes the vaccine misinformation.
but whatever that is they don't like miss informers of the vaccines to excluded. >> that he might disagree. >> i'm vaccinated also by the way. [laughter] >> . >> the problem with these platforms let's just assume you can do it. because nobody thinks that the these companies allow everything to be said everybody is happy when they get out the spam 80 percent of the removals. and there are all kinds of things but it's okay from the
beginning thatas facebook has a policy against adult nudity. that's what makes it an agreeable family oriented that would be plainly unconstitutional and then the community standards for the's companies they are enormously complicated you can do this you can't do that and so forth if they are treated as common carriersed to embrace each and every one of those things and then the first amendment kicks in. and then just to give a quick example with the brown the board of education but the argument for why common carriers like stagecoachess and railroads could be subjected
to desegregation law and the civil rights act of 1875 was precisely because in these are all common carriers and if the government allowed them to excluded person on the basis of race that was government action because the only eareasonable restriction and i don't see how that will work with the social media company. >> so justice thomas did not say twitter was a common carrier. and a lot of his to sense he said it at different wondershare. about the regulatory takings. if there is such a thing we
should say what they are and if not but a lot of these this is just an important question we should explore as an original matter we have not done it it is and the appropriate case that's a great example because i think justice thomas thought sovereignty and then to say that was wrong at least i'm not so sure. and what is super interesting as he raises these questions i guess i was wrong. suggest the fact that he said it doesn't mean we're going down the road. >> and with that party presentation when a judge
issues this it is the appropriate case they are asking for the parties to start briefing that issues so the justices can consider. >> and it's not just the parties. and then to do the work. especially with original is on. and then the supreme court clerks are the justices don't have the time. and that does take those parties of academia. >> and i don't think that clarence thomas' view on commercialha speech have anything to doto with being pro- corporate.
using the regulation of the companies is a backdoor way of regulating people he thinks should not be allowed. >> one thing we are both in to the dallas cowboys which means one man had to suffer through the rookie season beating the redskins sunday night. let's do the highlight reel. [laughter] >> he does have a number of wins over his 30 year career bringing up issues persuading his colleagues to come along and a number of wins are not in the topics you are talking about today so increasing affairs has pointed out, the confrontation, there are number of wins outside of this area, there will be very
few wins especially when it comes to this clause but on speech, i can think of two primary situations where the justice opinion by itself and for a while and the rest of the court came along, one is anonymous speech, and anonymous assembly 1995, so very early in his tenure at the justice in separate opinions recent the history of the first amendment indicate it protects the right to be anonymous, that was a mcintyre case about anonymous and he continued in finance cases-f enforced disclosure of donor identities and reiterated again and citizens united he added examples from the
newspapers from reports of donors whose identities have beens revealed and requirements intimidated and harassed and it's the consequence, he wasn't saying the reason anonymous speech is protected is because they are being harassed but he was pointing it out as an example of why the first amendment carries that anonymous speech so last term the court embraced justice thomas is view on anonymous speech, assembly in that case and set the first amendment does protect the right to assemble anonymously and that was a case where california had a requirement that charities must disclose identities of their major donors to the state attorney general and the court held dilated to the association.
just as pointed out in her defense explicitly she said this is an opinion previously only held by one person, justice thomas and now the majority of my colleagues agree with it so it probably took a measure of restraint but just take a bow. [laughter] but it's interesting she specifically noted this change in the views of the majority of the court in response to the justices decades long position, a related example is in campaign finance more generally on the justicesej arch enemies list foa long time since 1996, i think he called for the court to overrule because he doesn't see any difference for constitutional purposes between contributions
and expenditures. of course it's not overwrought but there are a string of cases where the court has been undermining that decision. within that realm, he's called specifically for the overrule often, 1990 case where the court allowed for the corporations and unions to spend more money and expenditures, it is a corruption that can be regulated justice thomasas said that cannot be to the extent thatxt corruption and he's never - suggested would grw pro is not an appropriate reason for the government to regulate speech in the campaign finance cases but he's call for the court to overrule specifically
because the fact that a corporation or union had more money and was able to expend resources and expenditures. this corruption the first amendment could regulate and as you know it was overruled often justice thomas' reasoning and for other justices who have come along the way. another important case in this line of reason from 2014 where the court decided to consider a fresh aggregatere limit campaign contributions, safe limits you can get an individual candidate and aggregate limits to give overall and and buckley the court upheld both of those and the court said buckley allows change in the legislative final
and buckleync only gave a few sentences to consider the limits so we'lleg consider it fresh and you see in the opinion of a court acknowledging the persuasiveness of justice promises reasoning about rationales underlying buckley. r. he points out in his dissent there is one rationale for buckley left and he thinks the court has even given that one up. that is another example where justice thomas's persistence drum beat over decades by himself talked about trampling poor -- his consistent drumbeat about that has been persuading colleagues along the way.
justice kennedy and justice scalia don't get a vote on the current court anymore but he did persuade thehr ideas persuaded them that buckley should be overruled. ng today a little bit about differences between justice scalia and justice thomas. scalia previously defended buckley and said it doesn't need to be overruled because nothing is wrong with it. justice thomas explained why it is not the case. eventually all three of them were signing off to justice thomas' opinion about how buckley should be overruled. they're not on the current court. but the power of his ideas and his consistency over time has really been, in these two areas, persuading is colleagues. there's one topic that might
have some -- >> that's exactly where i was going to head. you alluded to the fact there are many wins with religion. what i thought i would do is actually to kind of orient us to the people that don't know about his views on partial incorporation of the religion clauses. which are unique. then maybe hit the highlight reel on the wins, which are more than one according to professor garnet. >> justice thomas has very, very interesting -- so far, he's the only one who has really embraced a particular view of incorporation. which we might want to talk about. he doesn't believe -- he has made clear he believes in the 14th amendment and all
of this. in mcdonald, it is a historical tour de force about why we should reinvigorate it as a method of enforcing against the state. he has not gotten any votes, for his use of the established macaws should not have been incorporated against the states. which he first articulates in a 2002 case. but as far as the wins, i want to think about -- [indiscernible] i want to march through a victory real -- reel in the school choice. the views, the law will be in! on this year -- an exclamation point on this year.
in the case that involved a colorado scholarship that would not give scholarships to children -- college students who attended pervasively religious colleges. and it involved a lot of question universities. he says first of all, this is this termination. -- a lot of christian universities. he says first of all of all, this is discrimination. the judge later has an opinion about this. so then, he says, he first articulates this view that the establishment clause should not be incorporated but he also starts articulating that the establishment clause should not be used as a weapon to discriminate against a religious institution.
he says, you want to use the establishment clause as a weapon to keep poor kids out of good schools. that should never happen. then later, his view that it shouldn't be weaponized. that neutrality demanded prohibits the exclusion of religious schools. it was first articulated in 1999. it becomes effectively the law and trinity lutheran and espinoza versus montana, where he repeats again the fact that it should -- we should not be weaponizing the establishment clause because it has neutrality and shouldn't be applied to the state settle -- to the states at all. there might be a distinction between being religious and doing religious things, which i don't understand the status.
the court granted this term, can the state of maine exclude religious schools from a scholarship, a voucher of law? i think that is an area where his view of the establishment clause has come to be the law. >> i would say it goes even before that, to at least loretta lynch -- loretta lee opinion. -- plurality opinion. program provided computers, books, to all schools per capita -- on a per capita basis. this circuit held this was unconstitutional, by the way,
not happily -- they said that the supreme court's jurisprudence was a vast wasteland. and the complained about how terrible it was, but said they were bound by this. the court split three ways with four justices sticking to the old jurisprudence, saying they might be able to use these computers and library books for a religious -- for religious stuff. justice o'connor saying, that's not good enough for a facial challenge. maybe they could. there's no evidence in this case that they ever did. so we will uphold the program. the practical implication of that is extensive litigation -- in every case. you end up having discovery. did any of the kids access to bible or something on their
computer? imagine what that litigation looks like. justice thomas wrote the plurality saying this is ok, because this is a completely neutral program. this was not a consequentialist opinion. it was an originalist opinion, that there is this idea that aid to the sort of educational, social welfare programs of religious institutions is in any way unconstitutional under things like medicine's memorial -- madison's memorial. it's a misunderstanding. this is so interesting. this is the first time the supreme court noted that the this termination against -- discrimination against religious schools as a product of the mid-to-late 19th century anti-catholic bigotry. and he takes that on, finding
out this idea of pervasively sectarian was code for catholic. protestants by the way are not sectarians. did you know that? they are not sectarians because that is sort of the ordinary set of beliefs. catholics are sectarian, they believe transubstantiation and the infallibility of the pope, the immaculate conception of merriam, these are sectarian notions that unlike protestants, that was 19th century thinking. and clarence thomas was the first justice to point it out. this was the foundation then of the most recent espinoza versus montana decision. i think this really should be put in his when column -- win column. >> another big win for the
justice, and mitchell versus helm, he says voucher cases say, the reason it is ok to give money to the religious schools is that the government is making the decision, the parents, perfectly logical, then of course the question is what about when the government is? he says in the case, we shouldn't require all the establishment clause requires -- this neutrality towards religion. if you read through the lutheran case and espinoza, i think the majority of the court now embraces that. and espinoza, the chief talks about all kind of programs where it's clear the money was going straight to religious schools. and reservations. that is groundbreaking. it is huge. you think about all the kinds of -- the cares act, for example. cares act, tons of direct
funding of religious schools, direct funding of churches, to keep their pleas employed. -- people employed. there's no circuit breaker. they are giving out huge amounts of money. i was talking to somebody in new york who said that jewish day schools are now getting money to pay for science teachers from the state of new york. that actually is a violation. that was the exact program at issue. i really do think he is one. >> by design, we left the most a minute amount of time for our panel to discuss the role if any of natural law in justice thomas' jurisprudence. i'm going to ask it to answer that question. before i do that, when i read
this was going to be a topic, all i could think of is that i know that you know -- [laughter] that i know that you know that we know that professor mcconnell knows that george rushing knows there's this thing called natural law. [laughter] what role, if any, does natural law play in the justice's jurisprudence? >> i don't know if it was a real or imagined fear at the time of the justice's confirmation that he might be consulting some natural law b to decide casesody. -- body to decide cases. that he would turn and say, what does natural law say? and that would be the rule of decision. that's obviously not been the case. but he does turn to natural law for understanding and interpreting positive law.
i think he wrote about this before he joined the bench. kits turned out to be the case that -- it has turned out to be the case that in understanding the original public meaning of our founding documents, the justice consults what was informing these principles at the time. and natural law thinking was informing the principles and philosophies of the declaration, which he thinks then should be used and interpreted in the constitution. because the constitution really frames these principles and these ideals that are set out in the generation. -- the declaration. where does this actually come up in his jurisprudence? i think there are two that jump out to me. others have many more examples. his concept of equality. as an individual concept of
equality rather than a group concept of equality. i think it traces to his understanding of natural law principle and equality at the time of the declaration, which has been constantly brought into his interpretation of the constitution. this comes up often in his discussion of the desegregation cases. jenkins is a great example. in affirmative action cases. boating's rights. he comes back to this concept of equality as an individual assessment. rather than a group assessment. he takes that back to the declaration and to natural law philosophies. he consults, what were the
founders' meaning when they were talking about lit up -- liberty? he interprets that as negative liberty. freedom from government action. freedom from restraint, even, perhaps. rather than freedom to benefit. freedom to certain rights. he talks about this at length. in a case setting a law. the natural law sources for the idea this is the concept of liberty that he thinks the framers were putting into the constitution. as nicole alluded to, the big question in this area is the privileges or immunities clause. he thinks that is where rights are extensively incorporated and that is where they come from but
he is setting up her suppose of equality government by consent, and a level rights for clinton the declaration. these are all in our constitution. -- inalienable rights for the declaration. these are all in our constitution. to determine what the immunities are, aside from any rights that are explicitly mentioned in the constitution. >> any other comments from the panel on the role of natural law? >> after our organizing meeting, i knew this was coming up as my research assistant, to go through all of justice thomas' opinions, to all reference of natural law or natural rights were the declaration of independence. [laughter] the judges entirely correct. it wasn't just our impression of two. if you read them all, which i did last night --
[laughter] he does not in any of these use natural law as a direct basis. he doesn't say natural law says, therefore, that is a source of authority. every example, he takes aspects of our constitution, and he explains what they would've meant, in light of the natural law tradition against which they were written. judge rushing gave a couple of examples of that. i think for equality, it's not just individuals versus groups. but i think for 2021, i wish people would think more seriously about what thomas is saying here. he insists that the idea is of an equality of rights. every human being is entitled to
the same set of rights. this is what today is being rejected quite explicitly, under the rubric of equity, rather than equality. when you hear the equity versus equality thing being argued, this is precisely what justice thomas has been writing about. he minds the natural law for the definition of a ticket of power -- there are quite a few examples. -- of executive power. there are a few examples of this. the idea that he just has treated natural law as an extra because additional source of legal principles, i think it's just not solved. >> with that, we have to speak on behalf of the panel. the panel will yield to as many questions as can be maintained in a 13 minute period that are
actually about the subject of the panel. [laughter] since the panel is on everything -- [laughter] >> first of all, thank you so much for speaking today. on the last issue that was discussed, if i remember correctly in mcdonald versus city of chicago, the biggest question for me at the end is, you know, incorporation should -- the privilege and immunities clause. will those rights apply to noncitizens? the judge delegates that question to a footnote. it seems to be the larger question. saying these immunities should apply to everyone equally regardless of citizenship. how to supper with the understanding applied to citizens of the u.s. >> i'm going to exempt judge rushing from that question and
pitch it to elbert. [laughter] >> you argue cases in front of courts. you answer questions all the time. go ahead. >> i've given some thought to it. [laughter] as a question indicates, this is very big, a very hard thing. the 14th amendment refers to the privileges and immunities of citizens of the u.s. it is not a natural law principle. the content of the privileges and immunities arises out of -- among other things, i don't think exclusively natural rights theory, but it arises mostly out of the common law. most of the founders believe common law and natural rights theory were very closely tied. the content of the rights, as a natural rights basis.
privileges and immunities of citizens to the u.s. pertains. that may not answer the whole question. there's also an equal protection clause. if it is true, as the supreme court has held on numerous occasions, the equal protection clause prohibits discrimination against noncitizens with respect to matters not related specifically to participation in the political community. then, it may very well be that once privileges and immunities are protected for citizens, they also by virtue of equal protection are protected -- noncitizens are protected. to my knowledge, justice thomas hasn't address that. >> i have given no thought to your question, i thought you were going to ask a different question, so i'm going to answer it. i think the biggest question
after mcdonald -- i'm not sure he says this is incorporation. something else. whether or not rights are contained in the bill of rights are privileges or immunities. and what enumerated rights there are. in his opinion and wrote, he talks about the corfield versus -- i think that is a really interesting and big question. to what extent are unenumerated rights imposed against the states and if they are, what they are. the natural law thinking of the time would inform those. >> we will come over here. that over here -- then we will come over here. >> i had a question. it sounds like it is being discussed as a natural law kind of construction. my question is, should there be
one and what should it look like? huge question. >> i don't view it as a canon of construction. i view it as a part of the historical examination, that when there's a particular term that comes out of a particular tradition, that looking to that tradition is a way to understand it. i don't think it is anything other than that. we know that many of the terms of the constitution did come out of a natural rights tradition. >> roger with the caterer one —- catoo institute. igo will follow up on the first question and put a question to mikeun o'connell which will afford him an opportunity to give him the wrong answer. [laughter] >> he's been doing this for 20 years. [laughter]
>> if this provides privilege for citizens of the united states come it seems to me therefore it refers back to the rights retained by the people which will get us back into thear natural rights tradition of the declaration of independence and afford an opportunity right. >> . >> not sure not like states rates to nationalize what that h
amendment says is that all citizens of the united states have all of the privileges and immunities and that refers back not to the ninth amendment and then to the so-called comedy cause which requires each state to through and not to be quite uniform and then on their own property tora make contracts and to enter and leave to be subject to the
same criminalized just like you that's the first year of law school someone from massachusetts goes to pennsylvania it has to afford that person but those privileges and immunities they cannot treat them as aliens and then the 14th amendment comes on why it is more in those rights under the black codes to treat all of their own citizens in the same way you cannot treat your black citizens as aliens either everyone is entitled to the same set of fundamental
privileges and immunities on an equal basis. and then to say here is something and what are the privileges and immunities that is long mostly common-law based? i was giving a talk on this andne the newspaper that morning had a headline that said something like do people have a right to engage in cloning themselves? and i began my talk with this because i thought it was so hilarious. not even physically and biologically or scientifically possible that people were claiming a right to do. no. it is the establish privileges and immunities.
>> i don't think he would look at exactly your conception of what his job is and whatever it is to say looking in the constitution the natural law or to think up rights that may or may not have been explicit but i thank you believe he thinks to michael's point of the rights and privileges of the immunities of the citizenship were fixed at the time it was ratified. but now it's like a free ranging what would it be and
washington was appealing that would flow out of the very logic. >> and then to be against himself and then the right to anyle regime. and of course as a matter of consequences, he would say not that effective odm so with that affirmative action but at the same time it is quite clear that his rejection would have remained that on that
case that he spoke of the effects by those people because of their contribution to proposition eight in california was revealed. by bringing out the chain of happenings what serious interest is at stake with the naacp? what serious interest may be engaged for people to keep and confidentiality quick. >> and we have commented if you have anything to say quick. >> i really agree with that. i don't think we should label this as consequential. one of the jobs of the justices to write opinions to help educate the american people and remind us all of
the reasons with those fundamental principles. and i think ultimately we are not loyal to the constitution just because it was written 230 some odd years ago but fundamentally describes the rights and duties and organizations of a free people and embracing what was just said because justice thomas is not the first and will not be the last that when writing about positive law principles and my those are important to a free people so perhaps the current court of doing that. >> so please join me to thank our panel. [applause] >> our next program that
fabulous documentary about stcreated equal and i want to apologize in advance to those were watching virtually you can not stream that live so i am telling you now with each 24 hours that program will be posted on the heritage.org websites you can see it but not until tomorrow. my dad description is taken place in the conference room which is down the hall there is limited seating on there is the overflow room and if you don't make it into the conference room and then there is box luncheses for you to pick up and also in the conference room and that's we begin at noon. thank you very much.