Topic: Interpretations on Liberty as a Living Thing
Senator: Specter
Date: SEPTEMBER 14, 2005
Contents
SPECTER: Judge Roberts, before taking up the subject of the confrontation, we'll now proceed to the 20-minute round for each senator.
Before taking up the issue of the confrontation or clash between the Congress and the Supreme Court, I want to pick up a few strands from yesterday's testimony.
Near the end of my questioning, I commented on the case of United States v. Dickerson where if a chief justice had made a modification of his earlier objections to Miranda and said that the Miranda warnings ought to be upheld, contrasting his view in 1974 in a Supreme Court decision with his view in the year 2000, saying that Miranda should not be overruled because it has been embedded in routine police practices and become a part of our national culture -- that has all of the earmarks of the doctrine of a living constitution.
Dissenting in Poe v. Ullman, Justice John Marshall Harlan made one of the famous statements on this issue, saying that the -- commenting on liberty, the quote, "The traditions from which it is developed," quote, "that tradition is a living thing."
And my question to you is: Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?
ROBERTS: Well, I think the framers, when they used broad language like "liberty," like "due process," like "unreasonable" with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.
As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.
They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages.
SPECTER: Well, when you talk about intent, I think that's a pretty tough interpretation. When the equal protection clause was passed by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn't have been their intent.
And the interpretation which occurs later really is captured by Justice Cardozo in the case of Palko v. Connecticut, a case which impressed me enormously back in the law school days.
When talking about the constitutional evolution, he referred to it as expressing values which are, quote, "the very essence of a scheme of ordered liberty," close quote, quote, "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."
Would you agree with the Cardozo statement of jurisprudence which I just quoted?
ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.
And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.
But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.
And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.
ROBERTS: I depart from some views of original intent in the sense that those folks, some people view it as meaning just the conditions at that time, just the particular problem. I think you need to look at the words they use, and if the words adopt a broader principle, it applies more broadly.
SPECTER: Well, I'll accept that as an indication of your view not to have a, quote, "crabbed interpretation," in applying the broad principles.
Let me refer you to a statement by Chief Justice Rehnquist in dissent in the Casey case which surprises me. And I ask you whether you agree with this.
He said, quote, "A woman's interest in having an abortion is a form of liberty protected by the due process clause."
Do you agree with that?
ROBERTS: Well, that does get into an area where cases are coming up. The chief, in that position, was referencing, of course, the holding in Roe v. Wade and that was what the issue was in Casey.
But I don't think I should opine on the correctness or incorrectness of particular views in areas that are likely to come before the court.
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