Moderator: During the hot summer of 1787, the world waited and watched to see if 55 delegates gathered in Philadelphia, could cobble together a Government, for a struggling new country. On September 17th, the delegates emerged in Philadelphia independence hall as signers of the constitution of the United States of America. According to Benjamin Franklin, the American people had a republic built last, if they could keep it. Over time, these 55 men were joined by other founders of the several amendments, each new generation of founders worked tirelessly to ensure that important political ideas were captured in the constitution's text, yet many of the contemporary documents illuminating these ideas, personal letters, speeches and published materials, are kept in brick libraries, and archival institutions. Despite individual institutions Herculean efforts to digitize these documents, collaboration among institutions has been minimal, leading the public with only a readers digest version of the ideas these documents contain, more with no centralized document repository researchers must canvas the nation's public archives, institutional libraries and private collections for relavant materials, producing comprehensive and accurate information is there for very expensive in time and money. How would the landscape change if access, if we the people had access to our national treasures, what would happen to the sixth grade class learning about American history? The senator grappling with the constitutional issue? Or a Judge searching for materials not currently available and online legal sources? We the people are about to find out, inspired in part by James Madison's vision that the best history of our country would comes from the descended documents that he and his founding brothers created. Beginning September 17th 2007, the constitution's 220 birthday, the constitutional sources project is creating the only free fully indexed online library of constitutional sources so that the sixth grader and the supreme court justice can access them at consource.org. Inside the ConSource archive, images of the source documents are paired with searchable text and authoritative citations, each document is certified for authenticity and linked to relevant portions of the constitution, the collections currently on ConSource, focus on the constitutions beginnings, because the sixth grader and the supreme court justice use the constitution differently, we are creating the educational community and we have a legal community, all within this community is invited into a public forum, so that they can create neighborhoods and post their own blogs, resources and create their own collections, we will continue to add to ConSource, and open it up for direct document up loads, which after being certified can be added to the ConSource archive, so why all of the trouble? What is so important about the constitution? First it has changed our daily lives, it determines what you can and cannot see in school, it determines who decides when the troops come home from Iraq, and allows us to worship on Friday, Saturday, Sunday or not at all, Second it has changed the world, 95 percent of the worlds written constitutions are based of it. How did 55 men in 90 days create a document that would change our lives in the world over, 220 years later. In writing to the son he never had, George Washington wrote the marquis de Lafayette that it was a miracle, for the first time, a Government was created of by and for we the people, as we celebrate the constitution's 220th birthday, I invite you to discover or rediscover the miracle of we the people, as you learn about the constitution from my featured teacher, excavated source documents on ConSource and create your own constitutional blogs, resources and collections, we will now be taught by a justice of the United States Supreme Court, who will teach us about his job, deciding the most important constitutional questions facing the country, he will teach us from his book, Active Liberty written in part for high school students Justice Breyer.
Justice Stephen Breyer: Thank you it's very nice to see you here I know you are all from three different organizations and city here is particularly close to my heart I have to say it because it was my law clerk Michael Brown who and I was on the court of appeals he came in one day and said you know judge I have this opportunity that we found some banks who will help us and we could begin City Year but I have to do it now what you think and I said, "go for it, absolutely do it" because by creating this organization you will take a lot of young men, young women and you will tell them more about government and more about their lives in the community and more about the United States of America actually that I can tell you being the law clerk and I am really pleased that it succeeded so well, really has. And I think the other organizations are great too and they have also been very successful I know. So what's my job? Having down played my job, I have a new job since that I know on the Supreme Court, but what is judge's job? I am going to my office everyday I sit at the word processor, I read the briefs I told my son Michael when he was growing up if you do your homework really well you will get a job or you could do homework the whole rest of our life, I read and I write who are we? We are nine judges eight men one women there aren't enough woman, but we are appointed by the president, we are confirmed by the senate, we hold our jobs for life Thomas Jefferson said that that was a problem he said the trouble with the members of the supreme court is that they never retire and they very rarely die. So anyway we are there for a long time and our job is to interpret this document, the constitution, where did we get that job? The constitution, but what is these document you probably all seen it I mean there it is its pretty short brief document what does it do?. It has a well it has seven articles, it has 27 amendments, it's been around for 200 years not very many words. So If I am asked to try to explain in two or three sentences Led basically doesn't do this this is what I usually say and I think my colleagues and I disagree about a lot of things but we agree about a lot of things and this is something I think we would agree about what does that do those seven articles what's at the heart of it? We were asked this justice O'Connor, justice Kennedy and I, the bar association all asked us what is the most important thing and they have done a survey, what is the most important part of the document and some people said the most important part is free speech, others said free religion, others said equality, others said privacy they have a lot of different views but way down on the list was a word that the three of us looked and said why is that word down on that list so far down that's the word which the basically what the document is about anyone have any idea what the work could been? Equality was one of the words up there about that wasn't the first word that came in to our mind though it's important any other word? Unity is a good one that's a good one that's also important but and that indeed was what they had in mind in writing that document, any other? Try a couple of more you are not going to think but I will give you a hint begins with a D four syllables and you exercise it when you vote got it that's it alright that's your final answer. I think that's the right answer to us to us people could differ about these things but we thought what this does if you look at the seven articles they create institutions, congress, a president. At the heart of those institutions is the idea that people will vote in elections and then their elected representatives will vote for policies that by and large the people who elected them want and what happens to them if they vote for policies that the people they elected don't want?. The one word is - what? No, that then, what happens to them? No, not necessarily impeachment. It could be. But what what happens to them? Those congressmen those representative, the legislatures in beacon hill where you see this person, he was elected by you, and your friends and your parents and there he did everything you hated. What will happen to him? What? Correct. The word is "Hello" but the last word is "Good-bye" "Good-bye". Does he know "Good- bye"? Yes, he knows "Good-bye". Does he like "good-bye? No, he does not like good-bye; absolutely not and therefore he will try to do what those who elected him wanted. And if it is successful; in office. If not, not. That's a democratic system and it basically what's set up. Now, all the other answers you have given are certainly right because it is a special kind of democratic system. It is a democratic system that protects basic human liberty, basic human liberty being about well, name one. One basic human liberty? What? Well, I will save that. I like that very much; I am going to treat that specially. What what? Freedom of Speech. That's a good one. Any other? Religion, that's a good one. Okay. Freedom of religion, speech may be privacy from the government running in with the warrants, then, without a warrant arresting you. Lots of individual rights and now what's that word, you all wanted to put in here? You know, no you said it's very important. And I said it's so important that I want it specially. Equality. Yeah, I like that one. That's in the 14th amendment. And so, we know that it is a it is a democracy. It says we are going to create institution that will assure a democracy, but a special kind. What kind? A kind that is protective of basic human rights, a kind that assures a degree of equality, a kind and this is a little, we the lawyers love this one, but it's very complicated. So, the political science professors like it. It breaks up the government into a lot of different parts. I mean, it's not just a Federal Government it also States all the States, 50 of them. They have their government and there is a Federal Government. And the Federal Government has how many branches? Three. Right. Name one. Judicial. Yeah, we like that. All right. What about the next one? Executive. Right. Legislative, that's right; - President, Congress, Judicial. And it puts power in those different places, Vertically - States, Federal; Horizontally Legislative, Executive, Judicial. You know, if you had to say in a word and this is that, a very few people get best from the right. And if there is a right which I am never sure. But the the why break-up power into all those branches? Yes, checks and balances. That's a good one. Nobody becomes too powerful. No group of people in the government become too powerful. And so, what do we have? Democracy democratic institutions but a special kind. What kind? The kind that protects basic human liberty, that assures a degree of equality, that breaks up power with different parts; vertically State Federal, Horizontally, three branches so no one can become too powerful, that's checks and balances. And the lawyers like this, a rule of law. A rule of law a rule of law like the Magna Carta, back to King John. Which King John? I don't know. But it was that like 1215, you the King will not put me in prison without a law. You know, they used to do that in those days. Some still do. So, we we don't follow the law; we just put you in prison. Why do you put him in prison? I didn't not like him, hey great reason thank you. This is not a good reason for putting somebody in prison. This is not a good reason for doing anything in the United States of America. We follow rule of law. So, now we have got a picture. And I think that's a picture and it's a you know, it takes two or three minutes to explain. But when you go through that document, you keep that in mind; while you say, "That's basically what this document is about." When? In 1789? Yes. Today? Yes. Or between -? Yes. Future? Yes. I heard about that, can you make a prediction for the year 2100. I heard I heard a person who is an expert he was not a soothsayer, he was a he was a political scientist a sociologist, and he said, "Is there anything we can be certain about what will happen in the year 2100? Almost nothing - nothing is anything I don't know what is going to be your it will be your great grand children probably they are but you have them and they will be here and what will it be like he said I can predict nothing well almost nothing I might try to predict one thing, in November of the year 2100 there is a pretty good chance that there will be a election for president of the United States and when you say that don't you think you will survive may be not but there is a good chance of that extra ordinary - that's extra ordinary because 200 years ago we are looking almost a hundred years in to the future and we think yeah it's a pretty good chance so when you say unity, you said stability, you said unity to me that means a kind of stability I thought well may be they have got it may be they have got it because there isn't often a lot of consensus around those things. Well now what do we do on the Supreme Court? What do I have to do with this? Well I have just said what did I say was at the heart of it what was the long word at the heart of it? Democracy, democracy means who decides. Absolutely right Demos the people decide hey I'm a judge. Am I a person there is some doubt about that but not the the the basically as but I'm just one, I'm just one person and democracy means the rule by the majority hmm so what I'm doing there? Well that's a question that's a question but I think I'm doing and what my colleges think we are doing is not deciding what the country should be like, not deciding what you can and cannot do, we think that that constitution gives it up to you, your parents your sisters brothers, cousins and grand children when you have them have great grand children too if they are being honest but the - the they leaves it up to them to say what kind of city, what kind of state, what kind of community what kind of place do I want Boston to be, what kind of place do I want Cambridge, Massachusetts, Summerville, what kind of place do I want Dorchester, what kind of place do I want Mattapan, what kind of place do I want Charleston, what kind o f places are these supposed to be? What do I want my neighborhood to be like, what do I want my - what kind of rules do I want to run this place? Who is that up to? Me you say, not you alone, me together with my friends my cousins even if I don't like them and they are not my friends can I persuade them to my point of view. If so they are on my side but this going anywhere and that who supposed to decide uh-huh - but wait a minute then what's my job? Uh-huh well I said there are few rules about this and remember its is a special kind of democracy, a democracy that safeguards basic human rights that has a degree equality, that has rule of law that breaks power apart into separate bits, nobody becomes too powerful this has a few rules in it. So you decide what you want the democracy means the majority decide as long as they follow the rules, as long as they stick to the rules and those rules are meant to give you huge power to decide what your community wants but all power, every power? No. Why not? Why why was it written not to? Yes because certainly we found we found that it have took it about a hundred years to wake up to that hey not every body is in this room. Hey there are people we are blocking. There are people that the majority are not letting in this room to help decide. There are people who are excluded, there are people who will try try women's rights - try slaves at that time but this was written a lot of people and we have learnt since then think of world war two. You can't think of it, you are too young I'm very old I can think of it. You know that they were it was terrible terrible the majority was perfectly capable if you got them excited enough and worried enough about their own concerns, their own lives you know it's like a wild beast that's frightened lashes out. We see that in the world, and they can tyrannize over the minority. But this is to assure no tyranny no tyranny. Therefore it is a special kind of democracy. What kind of democracy? Well, we have been through this having really basic human rights, the equality separating powers, rule of law, and those are part of the rules, but not all the rules. So now we know why there are quite a few rules here, what kind many of them are and we know that it is up to the people to decide as long as they follow the rules, and now we are back where we started, and what's my job? Yeah, to see they are following the rules. If they come up with the law, if you get your pals you know, I mean where ever you are, Cabmridge, Georgetown I don't know, you get your friends, your cousins, your aunts, your uncles and so forth. They pass a rule, but if that rule is really oppressive, you will go up with somebody, you will challenge it in the courts. And it will come up to us and will say "I am sorry, they can make most rules, but not that one". Why not that one? It's off the rails. We are the guardians of the rails. Do you see what I mean by that? We are the guardians of the boundary. We are the guardians of the frontier. We are the guardians whether this rule, that rule, the other rule, this law, that law, the other law, whether it went too far. Too far and it's off the rails, outside the rules, beyond the frontier. One more question. Why us? Why me? Why me and not you? Why me? Why I have a majority? No, was I elected? No, I was appointed by the president, confirmed by the senate. That's a little democracy, but still only a little. Why me? Any that's a big question, and by the way, that's not a question you will get the right answer to by looking it up in the back of the workbook. That's not that kind of a question. It's not the kind of a question like how many senators are there for me in the state too okay. Now there is no right or wrong answer to that question. That is a question that has been debated over and over and over. Should we have this power? Now why do I think we have it? Why I think we have it, is its been around for about 200 years? And ever since a famous case of Marbury versus Madison, where the court said "look chief justice John Marshall, here is the law that congress passed. But let's look at this constitution over here. And it doesn't give them the power to pass this kind of law. It was a trivial law it was a law about who could review what what kind of court? But it say that's contrary to the constitution. Now if I have statue that over here that says A, and I have a constitution over here that says not A. Which is the law? That's what he said. He said I have to choose. I have to choose either this is the law or I choose this is the law. This is superior and therefore I have to apply the constitution and say that that statue that was contrary to the constitution is not the law now people have debated whether that was right for him to say or wrong for him to say. And as a matter of history, he was right have you read this in the Consource thing? See, I found it very interesting because what they did which was so interesting is they went back to the transcript of the constitutional convention and they saw right here in the constitutional convention I I marked some of it. They were debating, they were debating the people in Philadelphia. Well, should we give the judges the power to say whether laws are good or bad? Proposed laws are good or bad, proposed laws by congress good or bad. If the judges think they are bad, that's the end of them, the judges and the president. And they said no, that's too much power and well, one of them says an additional opportunity, and one of them here says that power to say whether it's good or bad should be kept distinct from expounding the law. And then it says, they have the power here. It says "as to the constitutionality of laws that point will come before the judges in their proper official character", in this character they have a negative on the law. In this character as a judge they have a negative on the law. In this character as a judge, they have a negative on the statute. In this character as a judge they compare the statute with the constitution, and if the constitution and statute are inconsistent the constitution wins and I find that two or three places in this debate and that helps me a lot. If I want to say, I didn't make up this power and John Marshal didn't make up this power. This power to say, if you have a statute, if you have a constitution and there in conflict the constitution prevails. Now, that's helpful historically, it also we have that power for 200 years. And it is a pretty hard power to exercise and what was the reason that you might want why didn't we put those individuals rights in the constitution, we thought it was a good idea, because we were afraid of what tyranny by the by the other good government supported by the by the people how many of the people? Right, because we were afraid of tyranny by the majority, and if you want to stop the majority from tyrannizing its helpful to have a group of people who are not part of the majority making the decision about whether the law is constitutional or not. It's helpful to try to have a lot independent people who appointed for life, they maybe very old, but they are independent and they are not dependent on a political party and they don't have to stand for election and they don't have to be popular. That's the theory of it, let's have a group of people who are not popular, maybe unpopular - have you ever heard of popular judge, I have never heard about, I mean that they they are the best, they are often ignored such, fine but you see the idea, see the idea behind this judicial review. Now you see what I do, I may not be popular, I am not trying to be popular. I am trying to apply the law, I am trying to apply the constitution. That means a statute conflicts with the constitution down with the statute, and what I am doing there? Saying what people should do, saying other country should be run, absolutely not. I am saying whether they have gone beyond the ground rules, those basic ground rules. Final point, if we are going keep this document working, who does the document foresee if you are John Madison, we have John Madison James Madison, sorry John James Madison right here. And we say James in your opinion 99 percent of the rules, 99 percent of the laws of how this communities, how they are going to be run, will be made by who?. And who decides that? What the people and that means if the people don't make the laws, because they are too busy watching television what does James do? Is he happy? No, he is unhappy, and this document says James, that I work very hard on in Philadelphia will not work. I am pretty sure of that, not sure much else. But I am pretty sure that if people don't actually take the opportunity to participate in their public in public life in the community they don't make a they don't make any effort, they say well fine I am going to go and listen to my CD who what ever it is, or iPod, I don't know and good bye, I am not interested who cares that, let them do it. I don't want to do it. Then you can say that's up to them but James Madison will be in tears. Because he is afraid that this document that they spent an often lot of time creating just won't work. Right, but are worried about that? No, you are working for City Year or you are working for these other two, which is the other two, its Beacon? What was the other two? The Beacon Hill and Belmont High School, Phillips Academy, okay. So you are involved in your community? Yes, of course and you intend to remain? Yes, good alright. Now, I think that this group is fine. And so James Madison, big smile on his face, he is very happy. But now you see at least the outline of the theory and it may sound simple. But that's what it is in my opinion, that's what it is written and that's why I am I am glad you are here. Thank you.
