 Good afternoon and welcome to the William G. McGowan Theater here at the National Archives. I'm David Ferriero, the Archivist of the United States, and I'm pleased that you could join us today, whether you're here in the room or joining us through our Facebook or YouTube channels. Before we hear from today's guest speaker, Richard Fallon, Jr., I'd like to alert you to two programs coming up soon in this theater. Tomorrow evening at 7 p.m., we present a special advanced performance of 19, the musical, which uses music, spoken word, and dance to tell the story of the fearless women who fought for the right to vote in the passage of the 19th Amendment. And on Friday, September 20th, at noon, we'll show two films relating to women in early motion pictures, Suffragettes in the Silent Cinema, and Silent Feminists, America's first women directors. Both of these programs are part of the series of events related to our current special exhibit, Rightfully Hers, American Women and the Vote. Check our website at archives.gov or sign up at the table outside the theater to get email updates. You'll also find information about other National Archives programs and activities. And another way to get more involved with the National Archives is to become a member of the National Archives Foundation. The Foundation supports all of our education and outreach activities. Today is Constitution Day, commemorating the day in 1787 when delegates to the Constitution Convention signed the new charter for federal government. The signing was not the end of the process, but the beginning. During the state-by-state ratification process, the promise of a bill of rights became a necessary condition for acceptance. After winning independence from Great Britain only a few years before, Americans wanted guarantees for their hard-won rights. Thomas Jefferson, writing to James Madison in late 1787, declared that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no-just government should refuse or rest on inference. Those rights now are constitutional rights, have been guarded and cherished for more than 200 years. Today's guest author, Richard Fallon Jr., explores the nature of constitutional rights, what courts must do to identify them and why their protections are more limited than most people think. Richard Fallon Jr. joined the Harvard School, Harvard Law School faculty in 1982 and is currently the story professor of law and an affiliate professor in the Harvard University government department. Fallon is a graduate of Yale University and Yale Law School. He also earned a BA degree in philosophy, politics and economics from Oxford University, which he attended as a Rhodes Scholar. Before entering teaching, Fallon served as a law clerk to Judge J. Skelly Wright into Justice Louis F. Powell of the United States Supreme Court. Professor Fallon is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute. He is a two-time winner of the Harvard Law School Sacs Froding Award, which is voted annually by the school's graduating class to honor excellence in teaching. He's written extensively about constitutional law and federal court's law and his 2018 book, Law and Legitimacy in the Supreme Court, received the Thomas M. Cooley Book Prize from Georgetown Law's Center for the Constitution. Ladies and gentlemen, please welcome Richard Fallon Jr. Thank you very, very much for that very gracious introduction. It's a real pleasure to be here on Constitution Day. Certainly we here in the United States with our Constitution and our constitutional traditions have a very, very great deal to be celebrating today. I'll try to say a little bit more about that at the end if I have time. Before getting into the celebration, I want to talk to you about constitutional rights and what constitutional rights are. So the basic thesis of the book that I have just written on the nature of constitutional rights is that we all rightly celebrate our constitutional rights, but that very few of us probably have a very refined or sophisticated idea of what rights are. In thinking about rights this way, I'm reminded of something that St. Augustine famously said about time. He said, I know what time it is, but I don't know what time is. And my guess would be that for many people, not only ordinary Americans, but for many very sophisticated people, we would be able to say that we know what constitutional rights we have, would be able to list a number of them proudly, but that many of us would have a very, very hard time in trying to give an account of what a constitutional right is or what it means to have a constitutional right. Now it's a prelude to talking about the nature of constitutional rights. Say just a few words about the original history. When the Constitution was written in the summer of 1787, it emerged without a bill of rights. There was discussion at the Constitutional Convention at the very end, but only at the very end, about the possibility that perhaps there should be a bill of rights. And the response that emerged within the convention at that time from James Madison, among others, was that there was really no need for a bill of rights. And if you pushed Madison at that time on the question why there was no need for a bill of rights, the answer would have gone something like this. The state constitutions already have bills of rights, protecting the citizens of Massachusetts, New York, and Virginia, for example, against wrongs that the governments of those states might do. There's now going to be a new national government, but the theory was we don't need to be terribly frightened of that new national government. And if the question is asked, well, why don't we need to be too frightened of that new national government? The answer would have been because the Constitution properly interpreted does not give the new national government the power to do anything that would be threatening to people's natural rights. So the original thinking was that there was a kind of natural symbiotic relationship between rights and the powers of government. And that in a well-constructed government, rights take up precisely at the point that the powers of government leave off. And the powers of government leave off precisely at the point that the exercise of a power by government would violate somebody's constitutional rights. I marked that thought at the beginning because it's going to have quite a lot to do with what I'm going to say later on about the nature of constitutional rights. But although that was the thinking at the Constitutional Convention, when the Constitution was proposed for ratification, there was widespread belief that a good constitution would indeed include a bill of rights. And the very first Congress with James Madison who had labored so to produce the Constitution in the first instance, taking the laboring ore, produced a draft bill of rights which was submitted to the states and became part of the Constitution in 1791. And so the bill of rights is hugely important. But so once again I want to emphasize is grasping the relationship between rights and the powers of government in various ways. So my topic, as I've said, is the nature of constitutional rights. And in thinking about constitutional rights I think most people, many very sophisticated people, many law professors, probably many judges, and I would venture some justices of the Supreme Court. Let's start with a misleading picture. And the misleading picture is that constitutional rights are privileges to engage in what people sometimes refer to as protected conduct, pretty much no matter what. And so it's natural to think of rights as privileges to engage in protected conduct if it is, and I think that it is natural. Here would be some examples and you can see how they may pull on your intuitions. Somebody wants to criticize the president. If there's anything we have a constitutional right to do under the First Amendment, we may think it would be a right to criticize the president or any other governmental official. In 2008, the Supreme Court said that there is a constitutional right to carry a gun, to possess a gun for purposes of self-defense. And many of us on the basis of this decision might think that if there is anything we have a right to do, it is to possess a right, a gun for self-defense. And then in 1989, in the case of Texas against Johnson, a case I'll come back to repeatedly, the Supreme Court held that there is, by popular accounting of what the Supreme Court held, a right to burn a flag as an act of political protest. So we might just think of these as three examples of protected conduct, their right to criticize the president, the right to possess and carry a weapon for purposes of self-defense. And the right to burn a flag as an act of political protest. The complications come in, excuse me, when we start to think of some variations on the paradigm case that probably comes to mind for most people when they think about these rights. So imagine this, imagine I walk into a hospital emergency ward and I start shouting criticisms of the president at the top of my lungs. Have I engaged in constitutionally protected conduct? The answer to that question will be no, in a hospital emergency ward, I don't have any right to be criticizing the president or doing anything else at the top of my lungs. With respect to guns, this is more intuitive, although people have a right to possess weapons for self-defense. They don't have a right to bring the guns onto an airplane. And then burning the flag for purposes of political protest in Texas against Johnson. I think this is a very, very interesting example. Johnson was actually prosecuted under a Texas statute that made it a crime to desecrate a venerated object. And so the point of that statute was to stop people from engaging in expressive conduct that would be disturbing to other people. Maybe convey messages that other people didn't want to be subjected to. But now imagine this, imagine Johnson who set fire to a flag on a public street had been arrested under a statute that made it unlawful to light fires on public property. With the rationale being it's obviously dangerous, threatening to public property. If people can be on that public property, setting objects on fire, maybe creating a hazard to surrounding pedestrians, maybe creating a hazard to public property. And so as a matter of fairly well established Supreme Court doctrine, Texas against Johnson actually would have been decided the other way, had the prosecution been for lighting a fire on public property. Johnson would not have had a right to defy a statute of that kind, though he did have a constitutional right, the Supreme Court Health, to defy a statute that made it a crime, purported to make it a crime, for him to desecrate a venerated object as an act of political protest. So with these examples in mind, we start to get a better approximation of what constitutional rights are. Constitutional rights are constraints on laws and other government action, but I'm especially going to focus on laws that are not adequately justified in light of constitutionally protected interests of citizens and being able to engage in speech or conduct of a particular time, as gauged against the reasons that the government has, whether legitimate or illegitimate, for wanting to restrict speech or conduct in a particular way. So with respect to criticizing the president, what becomes crucial is what's the nature of the regulatory law and the justification for it. If somebody is arrested for criticizing the president under a statute that makes it a crime to criticize the president, the person has a constitutional right that has been breached, but if somebody is arrested for criticizing the president by shouting in a hospital emergency ward in the face of a prohibition against disturbing the peace with the wrong being predicated on the fact that the peace was being disturbed rather than on the nature of the message that was being communicated, the person would not have a right. With respect to burning a flag, I, you, anybody else has a right not to be prosecuted for burning a flag under a statute that tries to stop political protest on the theory that the message being communicated might be disturbing to some people. But there's not a constitutional right to burn a flag in defiance of a statute sensibly put in place to stop conflagrations on public property and dangers to passing pedestrians. With respect to carrying a gun for self-defense, it may very well depend on where somebody wants to carry the gun. So before elaborating on this picture, I'll just give you some very roughly sketched history. Through much of U.S. constitutional history, the Supreme Court was taking the position that any unreasonable restrictions on speech or conduct were constitutionally suspect with the most famous example of that attitude perhaps coming in the case. Now, I am showing a different slide than you. Yes, I'm sorry. With perhaps the most famous elaboration of that position coming in the case of Lochner against New York in 1905, in which the Supreme Court said in every case that comes before this court therefore where legislation that restricts liberty is concerned and where the protection of the federal constitution is sought, the question necessarily arises, is this a fair, reasonable and appropriate exercise of the police power of the state or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty? This was a test that the Supreme Court famously used with respect to so-called economic liberties, but the Supreme Court also applied it with respect to civil liberties or something very close to that, including sometimes freedom of speech. When I first encountered this language in Lochner against New York, I suspect like a lot of other people would have thought, well, that sounds pretty good. The problem was it didn't work out so well in practice and it especially didn't work out so well in practice during the New Deal era when the people of the United States were more or less demanding a lot of legislation to protect them from the vicissitudes of depression that the Supreme Court was saying was unreasonable. And then in the late 1930s, the Supreme Court more or less abandoned the effort to invalidate any restrictions on liberty that a majority of the justices might have thought unreasonable under the circumstances. In the post-New Deal landscape, the Supreme Court then confronted the challenge, well, what are we going to do? How are we going to go about protecting constitutional rights and which constitutional rights are we going to try to protect? And more or less, the Supreme Court in the Caroline Products case in 1938 suggested that there were going to be some preferred liberties that the court would continue to enforce, roughly consisting of the Equal Protection Clause, guaranteeing everyone the equal protection of the clause and the Bill of Rights that had been added to the Constitution in 1791. But even with respect to the Bill of Rights, guarantee of freedom of speech, guarantee of freedom of religion, the Supreme Court had to confront the question, when are we going to say that the freedom of speech has been abridged? When are we going to say that the freedom of religion has been abridged? And at that time, I think it is a little bit of a simplification, but not too much to say that there were two leading candidates. One leading candidate building on something like the idea that constitutional rights were privileges would have said constitutional rights are limited privileges and the government, Supreme Court will have to OK infringements of constitutional rights. Whenever the government has a plausible reason under the circumstances to think that restricting the freedom of speech, for example, will promote the public good, a real test case in the 1950s was freedom of speech for communists and other people who were regarded as subversive. And some of the justices saying freedom of speech is a very good thing to have in theory or in principle, but when it's threatening to the security of the United States and when their government has a good reason, the government just has to be able to prohibit it. That's one side. The other side of the debate consisting of justices famously led and championed by Justice Hugo Black who like to say that the First Amendment is an absolute and that if somebody has a constitutional right, it's absolutely protected. It doesn't matter how damaging the exercise of that constitutional right might be. And then during the 1960s, part of the thesis of my book about the nature of constitutional rights developing, modern nature of constitutional rights developing through the emergence of strict judicial scrutiny, the Supreme Court began to focus on the challenge law or regulation. What's the nature of the challenge law or regulation? Not merely what's the conduct that somebody wants to engage in. Does somebody want to engage in an act of political protest? Does somebody want to carry a gun? Shift the focus slightly at least from what the person wants to do, gauge in political protest or carry a gun, to the nature of the challenge law or regulation. For example, is the nature of the challenge law or regulation in the flag burning case, one that prohibits the lighting of fires on public property or one that prohibits the desecration of venerated objects. So focus on the nature of the regulation. And then say that depending on the nature of the regulation, the government will bear either a greater or a smaller burden of justification so that if the nature of the regulation that the government is engaging in is not one that is somehow inherently suspect, government is trying to stop fires on public property and hazards to pedestrians who are walking by by regulating the lighting of fires on public property. That doesn't seem very suspect. It doesn't seem very suspicious, does it? And with respect to those, the government will bear a very small burden of justification. Yes, this seems a sensible way to protect public property, to protect passing pedestrians, to say that there can't be any fires lighted on public property. And then with respect to other kinds of regulation that are appropriately judged more suspect in light of underlying constitutional values, such as a prohibition against desecrating venerated objects, a purpose of which seems to be to thwart certain kinds of political criticism, ask instead whether the law or regulation satisfies what lawyers today refer to as strict judicial scrutiny and ask the question, is a prohibition against desecrating venerated objects necessary to a compelling governmental interest? Is a prohibition against championing communism or defending or arguing for the overthrow of the government of the United States necessary to a compelling governmental interest? That's the modern strict scrutiny regime. The logic, once again, says focus on the nature of the challenged law or regulation, determine how suspect or suspicious the challenged law or regulation is, and then calibrate the force of the justification that the government has to urge in defense accordingly. And so in order for rights to be like this, subject to protection through the focusing regime of strict judicial scrutiny that I've just talked about, what do rights have to be like? This is somewhat conceptual, but I think at the end of the day it's got a sort of practical payoff for people who want to know what constitutional rights are. We should start by thinking that constitutional rights aren't all members of the same species. There are different kinds of constitutional rights. We could start by talking about abstract constitutional rights. And by abstract constitutional rights, I mean rights of the kind that would make us think that somehow the First Amendment and free speech interests are in play. Interests protected through constitutional language that we call rights that would make us think somehow the freedom of religion is in play and so forth. So now we've identified reasons for courts to be concerned. We're talking about individual interests in expression. We're talking about individual interests in freedom of religion that make us think the Constitution ought to come into judicial calculus somehow. But then we move from abstract rights to what I would call triggering rights. And when I talk about triggering rights, what I've essentially got in mind is that different kinds of government on infringements, different kinds of governmental infringements on people's interests in being able to speak in a particular way or act in a particular way will be differentially suspect. And that we've got to say when there is an infringement of a kind that triggers judicial involvement, exactly what kind of judicial evaluation or scrutiny does it trigger? So that, for example, in the case of Texas against Johnson, a message-based infringement on people's capacity to express themselves, a prohibition against desecration of a venerated object put in place because some people won't like the message. A message-based infringement of that kind will trigger strict judicial scrutiny, a very high burden of justification for the government to be required to satisfy, whereas infringements that are unrelated to a speaker's message, such as a prohibition against shouting an emergency ward or a prohibition against lighting fires on public property will trigger much less stringent demands for justification. And then once we've got this justificatory apparatus set up, then we need to think about concrete or ultimate rights, which are rights that emerge after the appropriate level of judicial scrutiny has been applied. And so at the end of the day, what we have are rights as constraints on the reasons that are necessary to justify particular kinds of infringements on particular kinds of protected interests, such as protected interests being able to express oneself through speech, protected interests in being able to practice one's religion, protected interests in possession of a gun, the Supreme Court has said. And so then I'm now coming to the end of the formal analytical part of the presentation that I want to make. Lessons from viewing rights as constraints on the government not as privileges. Once again, don't just look at conduct but at applicable law and its justifications in order to figure out what constitutional rights we have. We have to look at the social non-absolutist character of constitutional rights. Constitutional rights are not absolutes. We have to look at the context specificity of rights. Given that rights aren't absolute, there is always some worry that courts in applying their justificatory apparatus, their analytical apparatus, I should have said, to government justifications will allow rights to be balanced away in a time of national crisis or emergency. That's a perennial worry running back to the framers link of rights to governmental powers. But the modern strict scrutiny test is really a rhetorically ingenious reminder that rights shouldn't be merely balanced away. Strongly protected rights should hold against governmental regulation unless the governmental regulation is absolutely necessary to promote a compelling governmental interest. And so then just in sum, one more time, constitutional rights are for the most part, maybe entirely, not just not privileges to engage in particular conduct or speech come what may, but rather they are constraints on the power of government to regulate us in ways that the government ought not to be regulating us. And when I say that constitutional rights are constraints on the powers of government to be regulating us in ways that the government ought not to be regulating us, I come back once more at the end to the people who wrote the original constitution and had an understanding of the relationship between rights and powers such that in a well-constructed government, there should be no power to do things that interfere with what ought to be recognized as the rights of the individual. The modern framework in remarkable alignment with that original way of thinking about things wants to focus not merely on what the individual claims he or she has an interest or a right to be able to do, but also wants to look at the government and ask the question is what the government is doing here, something that a well-designed government put in place to serve the interests of the people ought to have the power to regulate in a particular way under particular kinds of statutes at a particular time. And so with that, I'll just say one last word about Constitution Day and the way that we might think about the Constitution here on Constitution Day. The scheme of constitutional rights that we have today is not one that emerged full-blown from the deliberations in Philadelphia in the summer of 1787 or even from the state ratifying conventions. The Bill of Rights was in some ways an add-on to the original Constitution, whereas the vision of the founders in Philadelphia in the summer of 1787 was one in which the crucial way to protect the people's rights was to limit the powers of government through limitations on the powers that were specifically delegated to the government. The enactment of a Bill of Rights in a certain way moves in the direction of signaling that there are certain kinds of speech or conduct that people just ought to be able to engage in. But I don't think that our scheme of constitutional rights emerged full-blown from the enactment of the Bill of Rights in its addition to the Constitution in 1791 or from the ratification of the Civil War amendments either. I think our modern system of constitutional rights, which on the whole works remarkably well, is a system that has emerged over time as subsequent generations, including but not exclusively subsequent generations of Supreme Court justices, have built on the framework given to us by the original Constitution and by the people who wrote and ratified the original Constitution. But sometimes in imaginative, adaptive ways as lessons have been learned. And I think on this Constitution Day is we think about what the Constitution is and as we think about the people who gave us the Constitution in the first instance. We perhaps flatter those founders best by imagining them as people who didn't try to say the final word, but rather began by putting in place a framework through which subsequent evolution and development could occur consistent with, for the most part, but not strictly determined by what was done in the summer of 1787 or what was accomplished when the Bill of Rights was ratified in 1791. So I thank you for your attention up to this point. I would be delighted to take any questions if anybody has any. And there is a microphone right over here. Thank you. So since the original founders, we've had a decision that was Citizens United. So is a corporation an individual? And this has not reached the Supreme Court yet, but it's at the state levels of the FAA being the government, deciding individuals right to liberty and happiness, I suppose, of hearing noise levels being not loud. And the corporation Citizens Utilities, Citizens United, the corporation in this case being airplanes, being allowed to fly lower than they ever were before, because it saves gas. And so there's their right to economic liberty and happiness versus the individuals right to the hearing. And this strict judicial review, which person are you going to balance, the Citizens United or the individuals? Right. So I thank you very much for that question. I think the answer to the question is rooted in the notion of rights as being something that one can't understand except in terms of the powers of government and constitutional rights, mostly being rights against laws that the government has put in place for inadequate or the wrong kinds of reasons. And so the right way, I think, to start to think about your question would be with the powers of government. Has the government, what regulations has the government put in place to try to protect people's interests in not having their ears assaulted or their air polluted by low-flying airplanes? If there is no law in place, if the government hasn't enacted a law, then the first place for a citizen to go is to the government and to ask the government to put in place a law or a regulation, specifying limits on how low airplanes can fly. If the government puts in place a regulation of that kind, then at that point, the airlines, as you anticipate, might be able to argue that that regulation somehow constituted an infringement of some constitutional right that they had. In terms of the framework that I have been describing here, I don't think a governmental regulation of that kind would be suspect in any way. Regulation that's put in place to protect people's interests in not having their ears assaulted and breathing clean air isn't suspect, wouldn't trigger strict judicial scrutiny. And if there was a good plausible reason for the regulation, then I think it would and should be upheld. But the right place to start is with the government. The citizen who wants the regulation established in the first instance should be going to Congress or the Federal Aviation Administration rather than to a court. Thank you for your question about state laws. You talked about the Bill of Rights and your example of Texas versus Johnson. I'm curious if there's ever been a time where something in parallel happens. And from the mechanics of, let's say, California versus Smith is burning a flag, Mr. Smith's burning a flag at the same identical time that Texas and Johnson is burning a flag, would there potentially be a conflict between the states and the decision made on such a law or how would that circumstance play out from one interpretation from one state law versus another? Right. Excellent question. There is a provision in the original Constitution before we ever get to the Bill of Rights in Article 6 that's called the Supremacy Clause. And the Supremacy Clause says that the Constitution and any statutes validly enacted pursuant to the Constitution are, quote, the supreme law of the land, anything in the laws of any state to the contrary not withstanding. And so if somebody under the federal constitution has what the Supreme Court would recognize as a constitutionally protected right, that federal constitutionally protected right would prevail over any state law or constitutional provision that tried to deprive somebody of that federal constitutional right. I understand that. But what if it hasn't been clearly defined within the federal constitution? It's something that is, as this lady had mentioned, something new to evolve as a law. And it's going to be potentially ratified by the federal government, but they haven't clearly defined that to fit into one category or another. Right. OK, excellent. So we've recently had, if I'm understanding you correctly, a pretty clear example of this. And that involves a case of gay marriage. So the Supreme Court has relatively recently said that there is a constitutional right, federal constitutional right to gay marriage, but more than a decade before the Supreme Court held that as a matter of federal constitutional law, the state of Massachusetts had said that there is a right under Massachusetts law to gay marriage. That Massachusetts right to gay marriage is not incompatible with anything in the federal constitution. So the supremacy clause doesn't say that Massachusetts can't have more rights than are recognized under the federal constitution. And if Massachusetts or New York or Virginia or any other state wants to recognize more constitutional rights, that's OK as long as the recognized state constitutional rights don't somehow collide with recognized federal constitutional rights, because at that point, the supremacy clause would come into play. Thank you. Anybody else? So I have a question, and it's about this scrutiny test. I know that there's various levels of scrutiny that the courts apply to various different constitutional rights or classes, whether it be strict, intermediate, or rational basis. Are you mostly saying that courts should focus mostly on a strict scrutiny basis and do away with those other ones? Because I think courts generally are moving towards a rational basis, scrutiny, and trying to do away with the various different levels to apply. Right. So this is a question that gets somewhat deep into the weeds of modern constitutional law. But when I was talking about the way that constitutional rights work so that we have to see are we in the ballpark, where the government is doing something that somebody might think is threatening to his or her constitutionally protected interests. Why is the provision in the Constitution at all? It's presumably to protect interests that citizens have. And then if we have that kind of infringement, then some level of judicial scrutiny will be triggered. And then under modern constitutional doctrine, the Supreme Court very familiarly says that there are some kinds of restrictions or regulations that are suspect and will trigger strict judicial scrutiny that will be invalidated unless necessary to a compelling governmental interest. There are some others that the court says trigger intermediate scrutiny. And then there are some others that trigger only rational basis review so that, for example, if I want to claim that my liberty rights are unreasonably restricted when I'm told I can't drive more than 55 miles an hour on a highway, the Supreme Court will say, well, that kind of regulation is OK as long as it's rationally related to any legitimate governmental purpose. And so what I have been doing is in a certain way defending the main outlines of this framework, saying that in thinking about rights, we ought to think about the nature of particular governmental regulations of particular conduct and whether regulations of that particular kind are well justified. The questioner asks, are we moving in a direction in which the Supreme Court increasingly will say that no more needs to be demanded from the government to justify any kind of regulation than that there be a rational purpose or rational basis for it? And then in response to that question, I would say no. I don't think so. I think that although the justices may have different views about which kinds of regulations ought to be regarded as suspect and trigger so-called strict judicial scrutiny and thus be invalid unless necessary to a compelling governmental interest, I think that most of them are pretty well on board with the framework and think that there are some kinds of infringements on people's liberty interests that should be regarded as suspect and trigger strict judicial scrutiny. Thank you. And I should say that these decisions are also sometimes quite controversial. So to connect your question with the first question that was asked, the Supreme Court has said, for example, that restrictions on political speech by corporations trigger strict judicial scrutiny. The justices divided by 5-4 about whether that was appropriate with some of the justices, four of the justices, thinking there's nothing suspect in their constitutional sense about a regulation of corporate speech with five other justices for the majority thinking that it was suspect. So once again, I think the justices disagree about which kinds of regulations are appropriately treated as suspect. But I think to use the same phrase I used before, I think most of them are pretty well on board with the framework and think that there are some kinds of governmental regulations that are suspect others that aren't. And then again, the main point I was trying to communicate, even if we're talking about regulations that have the effect of restricting speech, not all restrictions on speech are equally suspect. Think again about a prohibition against criticizing the president in comparison with a prohibition against shouting in a hospital emergency ward as applied to speech that criticizes the president. The regulation isn't suspect. There is no constitutional right violated under the circumstances. If I interpreted your comments correctly, you suggested that rights are subject to sort of evolutionary interpretation to reflect the current society. And for those of us who remember the beautiful word penumbra used in a number of court cases, in reviewing cases, if these rights are evolutionary and subject to interpretation, they're also subject to regression. And should there be a higher degree of scrutiny by the court if there are an effort to cut back on rights that have previously been recognized? And I'm thinking about the debate going on currently over privacy. Right, okay, so it's a wonderful and a hard question. Let me say one thing by way of clarifying what I have been saying up to this point, not clarifying what you're saying, which was completely clear. Many people think that there is a large constitutional divide between so-called originalists who believe that the original constitution's meaning was fixed at the time that it came into force and so-called living constitutionalists. There is some division, but I think that there is also a larger overlap than is often recognized. If one accepts as I believe one ought to accept that the original meaning of the constitution was in one or another way vague, not precise, the constitutional guarantee of the freedom of speech. Well, what exactly was the freedom of speech? Was everybody who was living in 1791 when the First Amendment became part of the constitution totally as one with respect to how this should be interpreted? So I think a number of originalists would say the constitution is in some respects vague and courts need to develop interpretive frameworks that some originalists refer to as constitutional constructions to render more specific what otherwise would be vague. So now let's imagine we're in a situation in which the Supreme Court has previously recognized some right and now somebody comes forward to say I don't agree and the court has asked will you reconsider and will you possibly restrict more narrowly the right that you had previously recognized? My own view is in a situation like that, courts should always be thoughtful about to easily kicking aside what is likely to be the wisdom of their predecessors. But I don't think there's ever been anybody who thought that the Supreme Court shouldn't sometimes reverse its prior interpretations. And if you think about controversial Supreme Court decisions, there are some that are controversial and have infuriated people whose views would generally alive them with the political right, think row against way. There are some that have infuriated people who generally would ally themselves with the political left. Think the Citizens United decision that says corporations have speech rights and their efforts to try to influence the outcome of political campaigns through speech can't be regulated. And it's my impressionistic sense that nearly everybody thinks there are good Supreme Court decisions and bad Supreme Court decisions and the court should not only be super hesitant but absolutely shouldn't overrule the good ones but they should overrule the bad ones. And the big disagreement is about which are the good ones and which are the bad ones. And so to you I think the best I can say is I don't think they should be in a rush to overrule things but I think they should hesitate to overrule things but I don't think there should be an absolute prohibition against it and if you gave me a list of the 10 most controversial Supreme Court decisions I probably would have pretty definitive instincts that some should be overruled and others shouldn't just as I would guess that you do. Thank you. Okay, thanks. We're two more out of time. Okay, thank you very, very much. Thank you.