About Our Guest
Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia. Previously he served for 18 years as Frank Stanton Professor of the First Amendment at the John F. Kennedy School of Government, Harvard University, where he has served as academic dean and acting dean, and before that was a professor of law at the University of Michigan. He is the author of The Law of Obscenity (BNA, 1976), Free Speech: A Philosophical Enquiry (Cambridge, 1982), Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Clarendon/Oxford, 1991), Profiles, Probabilities, and Stereotypes (Belknap/Harvard, 2003), and Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard, 2009). He is also co-editor of The Philosophy of Law: Classic and Contemporary Readings (1996) and The First Amendment: A Reader (1995), and author of numerous articles on constitutional law and theory, freedom of speech and press, legal reasoning and the philosophy of law.
Schauer is a fellow of the American Academy of Arts and Sciences, has held a Guggenheim Fellowship, has been vice-president of the American Society for Political and Legal Philosophy and chair of the Committee on Philosophy and Law of the American Philosophical Association, and was a founding co-editor of the journal Legal Theory. He has also been the Fischel-Neil Distinguished Visiting Professor of Law at the University of Chicago, Ewald Distinguished Visiting Professor of Law at the University of Virginia, Morton Distinguished Visiting Professor of the Humanities at Dartmouth College, Distinguished Visiting Professor of Law at the University of Toronto, and Distinguished Visitor at the New York University School of Law. His work on rules, legal reasoning, constitutional theory and freedom of speech has been the subject of a book Rules and Reasoning: Essays in Honour of Fred Schauer (Hart, 1999) and symposia in Politeia, the Harvard Journal of Law and Public Policy, and the Notre Dame, Connecticut, and Quinnipiac law reviews. In 2007-08 Schauer was the George Eastman Visiting Professor at Oxford University and a fellow of Balliol College. A graduate of Dartmouth College, the Amos Tuck School of Business Administration, and Harvard Law School, Schauer was the recipient of a university-wide Distinguished Teacher Award from Harvard University in 2004.
Program Transcript
Jan Paynter: Hello. I’m Jan Paynter and I’d like to welcome you again back to our program Politics Matters. Today we’re continuing our series on the constitutional amendments. Today we have with us Professor Frederick Schauer, David and Mary Harrison Distinguished Professor of Law at the University of Virginia where he teaches courses in Constitutional Law, Evidence and Philosophy of Law. Professor Schauer holds an AB and MBA from Dartmouth College and a JD from Harvard Law School.
He is also Frank Stanton Professor of the First Amendment Emeritus at the JFK Kennedy School of Government, served as academic dean and acting dean and also taught courses in Evidence and the First Amendment at Harvard Law School. In reading over the amendments, I was very interested in the 9th Amendment which is for many people and most legal binds as you well know, we were discussing before the program, one of the most interesting of the initial 10 contained in the Bill of Rights. And it states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the People”. Understanding that for instance Robert Bork stated that this amendment is an ink blot, basically one in which you can see in it whatever you wish. Would you wade in a bit for us, Professor, toward an understanding of what this amendment means, presuming that the Founders put it in there for a reason.
Frederick Schauer: Okay, the—it is as you know a very controversial issue about just whether what the Founders intended ought to guide us today. The words clearly ought to guide us today but whether the original intent behind those words ought to guide us today is one of the great controversies of constitutional theory. There’s no clear answer and there are continuing debates about whether we ought to be bound by the intentions as opposed to the words that were written in 1787 or 1791. Even assuming controversially that the intentions in 1791 matter, it’s important to recognize that those words were written before there was any understanding of the idea of judicial review. That is, the idea that the courts could strike down laws as unconstitutional. The 9th Amendment was written in 1791, the first time that judicial review was established was 1803 in Marbury v. Madison. The second time it was used was not for 51 years later in the notorious Dred Scott case in 1854 so the 9th Amendment is not largely about courts and was not intended to be about courts. What it means in an era of courts as opposed to just something that informs political debate and ought to inform legislative action is a very open question and in fairness it is not just Judge Bork but people on both sides of the political spectrum or all parts of the political spectrum that are worried that the 9th Amendment is so open ended as to give carte blanche to virtually anybody to find whatever rights they may want in the Constitution and as a result it has become somewhat of a dead letter.
Jan Paynter: Okay.
Frederick Schauer: What it was originally intended to mean remains some debate among historians. I’m no historian so I’m going to let the historians debate that, that it has no important doctrinal effect now nor has it ever had is a fairly clear legal proposition.
Jan Paynter: In this connection, what is meant by the term originalism with respect to an interpretation of the Constitution and how is this term distinguished from the legal term strict constructuralism, understanding this is a complex issue, I know it’s very difficult to make concise but can you advantage us with a general idea of the meaning?
Frederick Schauer: Sure. So when people talk about originalism, they talk about one of two things. Sometimes as I was just saying they talk about the original intentions, the original mental states of the people who wrote the documents. Sometimes, as with Justice Scalia, they’re not talking about original intentions, they’re talking about what the words of the Constitution meant at the time that they were written. Not what they mean now but what they meant at the time that they were written. So people who argue for strict construction might be arguing for one of a number of things. They might be arguing for one or another of these two forms of originalism, they might be arguing against implied rights so they might be arguing against for example the right of privacy because it’s not explicitly written in the constitution or they might just be arguing for courts in general and the Supreme Court in particular not doing too much, not making broad pronouncements. As a result, strict construction is a term you rarely see in the academic literature. It’s more of a political slogan because it can mean so many different things but probably most plausibly there are serious arguments about how much and when the courts should interfere with majoritarian legislative decisions. That’s a serious issue and insofar as strict construction is the slogan that’s on one side of that, it makes some sense which is not necessarily to say it’s right but at least it’s a coherent position.
Jan Paynter: Okay. Very complex. In January the Supreme Court issued a 5/4 decision Citizens United as we all know, and the question of spending limits in elections by corporations and by implication labor unions as well. Justice Kennedy stated that “if the first amendment has any force, it prohibits Congress from finding or jailing citizens or associations of citizens for simply engaging in political speech. By definition an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” Does this decision, Professor, equate in your view with the idea oft repeated in the press that money equals speech or has the Supreme Court decision been somewhat misinterpreted?
Frederick Schauer: Well, money has always equaled speech. The Supreme Court decided in a case called Buckley v. Vallejo in the 1970s that campaign expenditures were speech but long before Buckley v. Vallejo the great journalist A.J. Liebling said at the beginning of the 20th century, freedom of the press belongs to the man who owns one. That the ability to speak more and better if you have more resources is built into the 1st Amendment. Once we understand that, once we understand that the rich and powerful can speak more often and more effectively by various different means than others, we can’t completely separate broadly based let’s call it capitalist or free market ideas. The marketplace of an idea–ideas is after all a market. So Justice Kennedy is in part echoing a significant part of the 1st Amendment tradition but the real issue in Citizens United and other cases are are elections different—is—should there—what is the range of special rules about the electoral process to prevent elections from being bought as opposed to broadly speaking is it useful to have more resources in the marketplace of ideas. Many people would say, yes, of course it’s more useful to have more resources in the marketplace of ideas but elections ought to be treated somewhat differently. The real issue in Citizens United is are elections different.
Jan Paynter: Okay. As a result of this ruling, would further attempts at campaign finance reform potentially now violate the 1st Amendment right of free speech?
Frederick Schauer: Some of them, yes, that—It’s clear that Congress does not have the authority to overrule Supreme Court decisions. That’s—that’s itself a little bit controversial. Presidents from both sides of the political aisle or spectrum, Abraham Lincoln, Franklin Roosevelt, Ronald Reagan and others have argued that they have their own authority to make constitutional determinations, Congress makes the same claim. But assuming for the moment that we live in a world in which Supreme Court interpretations are final, Congress cannot overrule the Citizen’s United decision, it has the power only to maybe make some minor adjustments in the cracks but there’s not much that it can do. It might be useful to point out that the United States has roughly the shortest constitution in the world. And by virtue of being short, it’s vague, it’s open ended, it doesn’t answer a lot of questions. The U.S. Constitution is about 12 pages long, the Constitution of South Africa about 110, Brazil about 240 so we have a constitution with very little detail and it’s up to the courts to fill in the blanks.
Jan Paynter: In your view, Professor, does the 19th Amendment, which is “the right of citizens of the United States to vote shall be not denied or abridged on account of sex”. Does this—does this give women enough protection under law or should we revisit the idea of ratifying the ERA Amendment which has been bottled up in committee for a long time?
Frederick Schauer: Okay. There’s a—there’s a third component to that. Nobody seriously claims that the 19th Amendment is a broad-based mandate of gender equality. There have been a large number of Supreme Court decisions starting in the early 1970s recognizing sex discrimination as a component of the equal protection of the laws. The degree of scrutiny to use the technical term is not quite the same as race but laws that discriminate on the basis of gender, perhaps most prominently around here the Virginia Military Institute decision of a few years ago, are if not suspect in the constitutional sense of that term at least suspicious. So many people have argued that even that is not enough but most people I think would say that the roots to more—even more effective constitutional protection of gender discrimination are likely to come from the Supreme Court rather than constitutional amendment. The reason is simple. It’s almost impossible to enact—to amend the Constitution. It requires two thirds in Congress, three quarters of the states. That means that the 13 smallest—that means that their majorities, and in some states not even that, their majorities in the 13 smallest states in the country can block a constitutional amendment. We amend our Constitution very rarely, we’ve done it only 16 times since the bill of Rights. It’s not going to happen with the Equal Rights Amendment. There are too many ‘what ifs’ out there so as a purely pragmatic, political observation, it’s not going to happen. The changes are more likely to come as the Court increasingly recognizes sex discrimination.
Jan Paynter: We have to take a break. We’re talking with Professor Schauer. This is Politics Matters. We will be back to you in a moment.
[break]
Jan Paynter: Welcome back to Politics Matters. I’m Jan Paynter. We’re talking today with Professor Frederick Schauer about amendment issues. I thought it was interesting, the one most recently, the 27th, which took so long, of course has to do with congressional pay so that one went through.
Frederick Schauer: And that—well, that’s—but that’s why I said 16 and not 17. I can count. Actually the 27th Amendment was originally one of the first 12 amendments in the Bill of Rights. It took 200 years more or less…
Jan Paynter: That’s what I was referring to.
Frederick Schauer: …to have it ratified but in terms of amendments proposed after the Bill of Rights, the original 12, one of which became the 27th, we’ve only ratified 16. So as I say, so difficult that—trying to amend the Constitution turns out to be a bad political strategy for anybody.
Jan Paynter: It’s fascinating.
Frederick Schauer: I might mention as an aside here, in this original enumeration of 12, the 1st Amendment was not the first. So when we hear people and journalists say the 1st Amendment was first for a reason, that’s pie in the sky thinking. I think it was third or fourth or something like that.
Jan Paynter: I have to ask you, what amendments not discussed today are in your judgment most overlooked in terms of their impact on the lives of Americans and the way we live now?
Frederick Schauer: It’s probably—there were none that we haven’t discussed that are most overlooked because I think the one we haven’t discussed very much, except in passing, is the 14th. The 14th Amendment is not just about a post Civil War amendment that dealt with issues of race. It has become the vehicle for privacy, the vehicle for protection of forms of equality such as gender discrimination and many others other than just race discrimination. Most, but not all, of the interesting constitutional action these days comes in terms of interpretations of the 14th Amendment. These words ‘life, liberty or property without due process of law’ are the words in which the Supreme Court uses to extract meaning depending on the views of the Supreme Court justices. And that’s why the Supreme Court’s important.
Jan Paynter: Professor, what is the current state of legal debate in this age of emails, internet chat rooms, Facebook and Twitter, concerning the right of people to be secure in their persons, houses, papers and effects against unreasonable search and seizure as cited in the 4th Amendment?
Frederick Schauer: Okay, I think there are—there are two very different issues here. A lot of times when people worry about privacy, they worry about it in the context of knowledge of or publication of information about them by broadly speaking, nongovernmental entities, whether it be credit bureaus or banks or newspapers or whatever. The privacy that is now understood to be part of the Constitution is a protection against the government and only against the government. Protection of my privacy against a bank, against any other private institution is a matter of statute, it may be a matter of common law, it’s not a matter of constitutional law. It doesn’t mean it’s not important, it doesn’t mean there are not important debates and there are very extensive statutory state and federal protections of privacy but the Constitution only protects us against government and not against nongovernmental entities. In terms of privacy, most of the Supreme Court decisions about privacy have dealt with abortion, contraception and the like on the one hand or the protection of criminal defendants through the 4th Amendment that you quoted against unreasonable searches and seizures and the like. Most of the forms of privacy that people worry about do not involve either of those and whether the Constitution protects against for example government databases is something that the Supreme Court has never touched. It hinted that there might be some protection. The hint was 20 years ago but direct Supreme Court decisions about government databases and all of this that lots of people are worried about, again, it’s pretty much a blank slate.
Jan Paynter: How do you feel the Kagan nomination will go?
Frederick Schauer: I should—people should not listen to anything that I have to say. She is a former colleague of mine at Harvard and a good friend so I am not even close to impartial on the issue, as with the Sotomayor proceedings of a year ago. We will witness a big political charade in which Senators and the nominee and public figures all claim that they can—that they are just neutrally interpreting the Constitution as they see it, that’s false. The words are too vague, the precedents are too conflicting, the views of justices—the first order of political ideological attitudes of the justices matter. I hope, as Elena Kagan herself urged 10 years ago, I hope there will be a fair amount of actual substantive discussion about what her views are about substantive issues because that’s what most indicates likely votes on constitutional questions. Unfortunately, what we saw a year ago was worse rather than better than what we’d seen the year before. We saw litigants, the New Haven Firefighters, baseball pitchers who were involved in the baseball strike. It’s political theater and it’s not going to help very much.
Jan Paynter: When reading our Constitution, what strikes most people is the astonishing freshness of the document, the way in which our Founders foresaw, planned for and anticipated in the most prescient ways, the eventualities and crises which would arise for us as a nation. They produced a durable and elastic document programmed for growth and change. They strove for balance, fairness and humanity in our laws. They focused as well on the need to work together while anticipating the fractious nature inherent in a diverse democracy bristling with various points of view. The framers indeed summoned the better angels of our nature, understanding that we would fall, yet cheered us on in the getting up again. Inter cooperation shared goals and that very American drive to move ever forward, they bequeathed to us the aspiration for that perfect union in spite of the manifestation of our many differences. Thank you again very much, Professor Schauer for being with us today.
Frederick Schauer: Thank you. Happy to do it. Thank you.
Jan Paynter: Thank you for listening to our conversation. We would like to hear from you with all questions and concerns. You can email us at info@politicsmatters.org. Thank you again. I’m Jan Paynter and this is Politics Matters.