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0:00
NEIL S. SIEGEL: I am delighted to introduce this year's worthy Currie Lecturer, Professor Noah Feldman. Professor Feldman is Felix Frankfurter Professor of Law, Chair of the Society of Fellows, and Founding Director of the Julis-Rabinowitz Program on Jewish and Israeli Law, all at Harvard University. He specializes in constitutional studies with particular emphasis on power and ethics, the design of innovative governance solutions, law and religion, and the history of legal ideas.
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He is not just a legal scholar. He's a policy and public affairs columnist for Bloomberg Opinion. He also writes for The New York Review of Books and was a contributing writer for The New York Times magazine for nearly a decade. He hosts the Deep Background podcast, an interview show that explores the historical, scientific, legal, and cultural context behind the biggest stories in the news. He also has a consultancy, Ethical Compass.
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And, through that consultancy, he advises clients like Facebook and eBay on how to improve ethical decision-making by creating and implementing new governance solutions. In this capacity, he conceived of and architected the Facebook Oversight Board, and he continues to advise the company on ethics and governance issues. Professor Feldman is the author of 10 books, including two law school casebooks-- Constitutional Law, which is now in its 21st edition,
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and First Amendment Law, which is in its eighth edition. His latest book is entitled To Be a Jew Today-- A New Guide to God, Israel, and the Jewish People, which appeared on The New York Times bestseller list. You can be-- NOAH FELDMAN: For like one second. It appeared for one second. That's all you need. NEIL S. SIEGEL: Well, it appeared for one second longer than the book that I have just written that we'll talk about. [LAUGHING] We can be certain it will not appear on that list
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unless our dean has pull that I'm not aware of-- AUDIENCE: We're still hoping. NEIL S. SIEGEL: Yeah, yeah, one day. Professor Feldman will not talk about that book today. He is one of our leading lights in US constitutional law where we're really privileged to be able to hear him speak to us today about constitutional revolution at the US Supreme Court. Professor Feldman, welcome to Duke. NOAH FELDMAN: Thank you. [APPLAUSE] Thank you Thank you so much, Professor Siegel.
2:57
And thank you all very much for taking your lunch hours at a part of the semester where exams are upon us-- not to say the E word-- to talk about the Constitution. And if you're taking con law, maybe this will be in some ways a potential review. I don't know, I guess we'll find out. It's really an honor to be asked to give this lecture and to be here with so many people who are friends and colleagues past, present and future. And it means a lot to me to be asked. So thank you for having me.
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And I'm also just especially happy because, as Neil said, I've been out around the country trying to promote this very personal book about something important to me in a moment where, because of October 7 and the Gaza war, everyone's emotions are really charged up. And so it's such a pleasure to be able to talk about a topic that no one's that really upset about, the constitutional revolution at the Supreme Court and the three big cases that I'll talk about involving reproductive rights
4:02
and guns and prayer in schools. So these are just-- they're just not a big deal compared to the existential issues that I've been forced to-- forced to grapple with in the other context. So here's what I'd like to do with your permission. I want to start by posing a puzzle at a pretty high level of generality. Then I'm going to go into details. And then I'm going to zoom back out at the end to try to expand. And the puzzle is this. We knew that if the Supreme Court came
4:32
to be configured in a certain way that it's come to be configured, there would be a conservative constitutional revolution there. And we know that because since the modern conservative legal movement consolidated its worldview, which happened to a first approximation sometime in the middle of the '90s, but it was building for years before that, we knew that originalism was going to be in constitutional cases, the crucial doctrine that those who were hoping someday to be on the court
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were going to deploy to effectuate a reversal of many lines of constitutional doctrine in many important cases that they had very openly targeted. The modern conservative legal movement had, until very recently-- and I think formally still has. Although, this is beginning to change-- just three straightforward parts. And I call them the Scalian Trinity. Justice Scalia did more to formulate this threesome than anybody else. Although, others went and participated in the development of the ideas.
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The first was judicial restraint, which has a complex history because, when liberals have a majority on the court, conservatives favor judicial restraint. And then, when conservatives have majority on the court, liberals favor judicial restraint. So it's a complex history of that doctrine. But so judicial restraint was the first. The second was constitutional originalism. And the third was textualism in statutory interpretation. And I'm not going to speak very much at all today
6:08
about the first and the third. But I am going to speak a little bit about the second in order to pose the puzzle. So the great thing about the modern conservative legal movement, almost unprecedented I think, is that it laid out in a very honest, open, and clear way what its jurisprudential theories were and how it hoped to effectuate those theories. I would call this movement. One of the most honest and straightforward constitutional movements really in US--
6:38
in the entirety of US constitutional history. And, to me, not everyone agrees with this, to me, I think it's admirable in a constitutional movement, like it's admirable in a jurisprudence, openly to state how you're going to decide cases and what your reason is for deciding them and then to actually effectuate it. And I feel that way even if I don't like the method or the outcomes. I think it's admirable in its own terms to state openly what you're doing.
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So the puzzle is now the configuration has come, and now the revolution is occurring. But, in many-- and I'm going to talk about the three that I mentioned-- of the most high-salience decisions where the court could have used originalism to reach the outcomes that it reached, arguably, the court didn't use originalism. So, in the Dobbs case on reproductive rights overturning Roe v. Wade, in the Bruen case, going further than the court had ever gone before in establishing
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principles-- they're going to have to pull back on them a little bit this term, but leave that to one side. But establishing the principles of what gun rights were under the Second Amendment. And then in Kennedy against Bremerton, the case where the court overturned 50 years of precedent, overturned the Lemon test in the Establishment Clause, and overturned Justice O'Connor's endorsement test, which she had always formulated as a reframing of the Lemon test. So the court overturned both of them.
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In all three of these cases, the court did not deploy originalism. Instead, it employed a model that it called, in all three of these cases, analysis by, quote, "history and tradition". So I want to start with a puzzle. Why? Why not use originalism when in each of these cases originalism was what brought the conservative legal movement to the party? It's what people said in their confirmation hearings under oath and, I believe, meant, at least the conservatives who said that I believe meant it.
8:49
Less clear what exactly Justice Jackson meant when she said she was an originalist. My own view is that may have been an ill-conceived formulation. But, in any event, the conservatives swore it under oath, I think, and meant it. And then, when they had the votes-- they had the votes, they didn't use it. So this is a twist in the conservative constitutional revolution. And it's an important twist. And we're going to see it's not just at the level of principle.
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Though, it's really interesting at the level of principle. It also will turn out to have some practical, pragmatic consequences, maybe pretty big ones. So that's the puzzle that I'm going to start with. And, to try to begin to answer it, I'm going to do a little bit of going into the weeds, which I hope is OK. It's law school. It's lunchtime. I can go a little bit into the weeds. And talk about these three cases. And, in each case, I'm going to focus
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on why history and tradition rather than originalism. And the reasons are connected, but not identical for each of the cases. And then I'm going to zoom out and ask what does this mean about originalism? What does it tell us about originalism as a constitutional theory and when it is and is not available and useful? And I'm going to ask what the difference is between history and tradition as the court is deploying it and other constitutional theories that are out there,
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including pragmatism and what's sometimes called living constitutionalism, which I would have said prior to these decisions. Pretty much covered much of the ground of contemporary approaches to deciding constitutional cases. I would've said, you can be a pragmatist, or you can be a living constitutionalist, or you can be an originalist. And that would've covered most of the ground. And now we need to expand or re-expand to bring in history and tradition. All right.
10:48
So let's start with the biggie. Let's start with Dobbs . Now, Roe v. Wade, as everybody knows, is a substantive due process case. And the doctrine of substantive due process formally incorporates some consideration of history and tradition. How it does so is a bit tricky, but I will use as the archetype Justice Harlan's dissent in Poe against Ullman, which has been made into, effectively, a doctrinal positive position, in the whole line of substantive due process cases,
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from contraception to reproduction to Lawrence against Texas and the right to have sex with the person whom you choose through, in a transformed way but still present, through the gay marriage cases. Now, how does history and tradition operate for Justice Harlan in the substantive due process world? It operates by saying, famously, that, when we try to figure out how we're evolving rights under due process, we look back to the tradition and the history of rights.
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And we follow a line that he calls a rational continuum that goes up, if you think liberty is up, and doesn't exactly follow a straight line. It's not a line with a perfectly straight trajectory. It's got some curve and some wave and some movement to it. And the rational continuum is a attempt to curve fit, to get some way of evolving the doctrine directionally towards greater liberty but drawing on past traditions. And so the archetypal example of this I
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think I would say, certainly, in my lifetime, and in your casebook lifetimes, is to say, well, the right to contraception-- it's got its own prehistory. But the right to contraception evolves into a right to abortion, which evolves into a right to have non-procreative sex in Lawrence against Texas, which evolves into an idea that if you can have sex with whoever you choose, you should also be able to marry whomever you choose. There you need a little equal protection doused in.
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But that's OK because we're doing a rational continuum. So we have some flexibility there. So that's the substantive due process orthodoxy. Like, that's the answer that ChatGPT would give you if you plugged on the exam, what is the role of history and tradition in substantive due process cases?
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I mean that, by the way, it's a fascinating puzzle is how-- well, it's still not quite there. I mean, I-- ChatGPT-- and Claude is even better-- still couldn't quite pass my exams last semester when I plugged them in. But, presumably, it's only a matter of time. So it's a fascinating, fascinating set of questions. But I'll close that parenthesis. AUDIENCE: They're not allowed here. NOAH FELDMAN: Well, that's a good solution. If you just have a rule that you can't do it,
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that will solve everything. [LAUGHTER] I love being a law professor. OK, so that's the substantive due process picture. That's the orthodox doctrinal story. So, classically, one of the most powerful reasons that originalism attracted the attention of legal conservatives is that it could be used as a broom to sweep clean the kind of substantive due process jurisprudence, where the justices used their judgment, their kind of coordination of past
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and evolution and directions, to reach the conclusion that we're going to discover a new constitutional right, which, magically, was implicit all along in our history and tradition. Originalism was supposed to be a cure for the substantive due process form of history and tradition. And, in a case like Roe-- or in a case like Dobbs, to put it more bluntly, the originalist solution would've been to say, well, let's go back to the Constitution of 1787 and to the amendments affirmed in 1791
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and see that we don't see even a right to privacy mentioned, much less a right to reproduction, much less an evolving tradition and under the straightforward theory of originalism in its crudest form or in its most sophisticated forms. It doesn't matter which form you use. You can use the most sophisticated public-meaning originalism, conclude that there is not under the Constitution any right to an abortion, and then you can overturn Roe. Neat simple clean logical.
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And you might even say that originalism in its conservative form was born and nurtured as a tool-- I'm mixing metaphors there. It was-- let's say, it was designed and developed as a tool precisely to overturn Roe. The moment arises, and the court says, no, not going to go there. In fact, we still care about history and tradition, but we're going to retell the story of history and tradition in a way that is not directional. This is the key moment, the key point. So that history and tradition now
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doesn't require us to expand liberty at each stage but, instead, allows us to say, when we look carefully at the tradition, Roe is an outlier from that tradition. So we're striking it down. Why? Why did they do this? I mean, you don't hear a lot of frustration about this from young legal conservatives. But young legal conservatives who were raised on the principles of consistency, logic, and the Scalian Trinity should be up in arms, not about the outcome, but about the reasoning
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here because it's selling out the reason that so many smart young people become legal conservatives, namely that conservative legal philosophy offers, at least in the context of constitutional jurisprudence, some straightforward clear answers to the hard questions. There's no mushy hand-waving. There's no, well, we figure it out. There's no, oh, it's pragmatic. And smart people have to do that. No, there's originalism. And it has a principle behind it. And you're supposed to follow it.
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So now the movement isn't following it anymore in its highest expression, namely the conservative court. So the simplest answer, I think-- I mean, there are subtle answers that can be given about how, even when you're breaking doctrine, you don't want to break it absolutely, the subtle answer is like that. And I'm open to exploring them, and especially in Q&A. But the simplest answer is that the justices were not prepared to overturn Obergefell. And they were not prepared to overturn Griswold,
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the contraception case. If they had used originalism for its designed, intended purpose, it would have been impossible to distinguish Obergefell and Griswold from Roe. No way to do it. The right to gay marriage is also not found in the original Constitution unless you look through implicit development of principles and rights, or you've got some pragmatic conception where you don't care about the original meaning. So not there, obviously, in originalist terms. Ditto the right to contraception.
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So, faced with the possibility of two options, option one sweep the board clean of substantive due process doctrine using originalism. Or, option two, perform a very crude surgery on that line of doctrine, which I'll come to in just a second because of just how crude it is. The court opted for the latter presumably because of a sense-- and you can say, well, they might not have had the votes. Possible, possible they wouldn't have had the votes for it. But that's not supposed to stand in the way.
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And we didn't even get separate opinions by people saying this is awful because we should be using originalism. So just to note the ugliness of how the history and tradition doctrine has to work in practice here, you have to be able to explain somehow why there is a right to contraception under substantive due process and there is a right to gay marriage under substantive due process plus a little equal protection without praising those decisions because the court would
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find it embarrassing to praise them but say that abortion is out. And, there, the court just tries really hard to say something. The closest is that Justice Alito says in the Dobbs opinion a couple of times-- three times, I think-- that there's something special about abortion rights because there's an interest in life in the fetus. So that's the closest to attempt to distinguish those cases. And it's not very satisfying. And, in a serious opinion, it would take pages to try to explain it.
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But it's embarrassing because the crudeness of the idea that you're keeping substantive due process in some form while plucking out the central link in the substantive due process line that I mentioned is just-- it's just a bad thing to do from doctrinal design perspective. It's just awkward. And if you think about why we have judicial opinions, one of the reasons we have them is to give reasons that sound plausible for decisions. And the reason we have line of doctrine
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is that lines of doctrine are supposed to constrain future decisions by virtue of the responsibility of the judges to make a good show of how they fit that doctrine, even though we all understand that it's possible to shape and evolve and develop doctrine in a bunch of different ways. OK, so that's case study one. Case study two, Bruen. Here, again, the simplest, most logical thing that you would've expected a conservative court to do in an opinion, by Justice Thomas no less,
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would've been to say, well, we're going to go back to the original meaning of the Second Amendment. We'd still have to resolve the question of whether we meant the Second Amendment in 1791 or the Second Amendment as incorporated against the states, assuming it was so incorporated, in the Reconstruction amendments when the 14th Amendment was passed. So we have a little puzzle about which. And, indeed, Justice Barrett, in her concurrence, noted briefly there-- I'll come back to that concurrence.
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She noted briefly in Bruen, the court hasn't really solved this question of where it's looking back to. But that would've been a straightforward way to do it and say, here are the gun rights. Instead, the court doesn't do that. And we get this opinion that you'll never read in its entirety because no casebook could ever include it in its entirety because it's nearly 100 pages long with history going back to, I kid you not, the 13th century, and all the way up to the present going through--
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I mean, there were no guns in the 13th century. So going through various regulations with respect to the carrying of different weapons like halberds and so forth, all the way up to the present. And attempting, famously poorly, I don't think-- I don't know anybody who's really strongly in defense of the logic of the opinion and the reasoning of the opinion in Bruen-- attempting to explain why the principles that emerged from that history and tradition will lead you to the conclusion that
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New York State cannot-- New York City, rather, cannot prohibit the concealed carry of handguns in New York City. So, again, why not the originalism? And here I think there are two possible related answers. But the simplest answer is the awkwardness of the Second Amendment itself. So, as you know, the Second Amendment is one of only two clauses in the-- only two parts of the Constitution where the Constitution provides a stated reason for why it's about to announce its rule.
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The other is the Copyright Clause. And, in the Second Amendment, the Second Amendment famously begins by saying that a well-regulated militia is necessary for preserving liberty. And, therefore, the right of the people to bear arms shall not be infringed. So because it embarrassingly enough says that the reason we have the right to bear arms is so we can use them in a well-regulated militia-- and that's embarrassing for a couple of reasons-- it is almost impossible to [INAUDIBLE]
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an originalist analysis that would go back to 1791 and conclude that contemporary gun control laws are invalidated by this clause. The well-regulated militia is well understood. We understand it ideologically. We understand it practically. We know a lot about it. Ideologically, we know that this is small r republicanism. The ideology that motivated the framers, that enabled them to make revolution and their fear of standing armies and their belief that therefore what
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was-- what were necessary were state-based militias. And those state-based militias needed to have access to arms so that the government would not turn into the Roman Empire. See, I got the Roman Empire in. So republicanism was opposed to imperialism by the framers. They said this thousands and thousands of times. As you know, they were all obsessed with the Roman Empire. That's why every time they sat down to write the Federalist Papers, the Anti-Federalist
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Papers, an article on the paper, they all needed to take like a screenname that was Roman, all of them. And every one of these-- when I wrote my book about Madison, I made a little game out of it. Every single time you come across one of these names, it's not an accident. You have to then look up who this obscure Roman Empire person was and then piece together why they chose that as their screenname. And there's always a reason because they knew so much about these historical figures.
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They were like common parlance to them. And so they used them constantly. So they were obsessed with this. So it's not a secret that the well-regulated militia was to avoid the danger of standing armies and the United States turning from a republican to an empire, which depending on your taste has happened, and it's a good thing, or is about to happen, and it's a bad thing, or has happened it's a bad thing. You can reach any conclusion you wish. But, from the framers perspective,
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it was clear that they didn't want that to happen. And the militia was how to stop it from happening because standing armies lead to a Caesar coming in and taking over. And then there's the practical side of the well-regulated militias. We have an enormous amount of documentation about how the framers did militias because they were obsessed with them. And they left detailed records of them. And we know when they worked well. And we know when they worked really, really badly,
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like the War of 1812. It turns out that a militia is actually pretty good for defending hearth and home, and it's really bad at going out and invading Canada. They tried twice. They each failed miserably. And, literally, New York Militia stood on the river about to cross over into Canada and defied orders and refused to go. And, by the way, this was not a bug of militias. It was a feature because, remember, republicanism was supposed to be about avoiding becoming an empire.
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And what do empires do? They go out and they invade Canada. They take over their neighbors. And then, from there, they take over the rest of the world. And so militias were supposed to be better because they would be kind of small d democratic. They would refuse to cross the river and nothing would happen to them. And that's indeed what happened. They refused and they were sanctioned zero because their generals they had elected, and those people were also the governors of their states.
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And they wanted a political future. So not one soldier was sanctioned for refusing orders to perform a basic military operation. So that was how it was supposed to be. So very hard to use the Second Amendment, originalism, to get you the desired outcome in the gun case. Lots more to be said. But I'll happy to say more in Q&A. OK, let me just move on to Kennedy against Bremerton now. So school prayer, there, surely, originalism will get us where we want.
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The facts in Kennedy-Bremerton aren't all that important unless you played high school sports, in which case they're very resonant. How many people in the room played high school sports? That's pretty good. So the facts in Kennedy v. Bremerton, really, under the old law, raised the practical real-world question of whether, when Coach says that you should stand at the 50-yard line and pray with him before the game, if you don't, are you-- do you feel coerced to do so?
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So a lot of that turns on, how do you feel about playing time? in my view. And, in my memory of being a high school athlete, I don't think there was any human being who had more influence over me than my basketball coach. And it wasn't that I worshipped the ground he walked on. It was that he controlled my playing time. And that, to me, seemed like the single most important manifestation of selfhood that I could imagine. And maybe that was just me. But I have the feeling it wasn't maybe only me.
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And in the back-- in the cultural background to this case is the way we in the United States of America use terms of honorific. And Coach is the highest and most elevated honorific form available in contemporary American English. It's certainly better than Doctor. It's definitely better than Senator. It dominates Professor strictly. It is the highest-- I mean, I didn't even think about this because I make this point to my own students.
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But, given where I'm standing, in the university in which I'm standing, that is the kind of ultimate manifestation, a coach who is known by a letter. And it's not a Kafka reference. That is the highest level of respect we have in our society. And that person was praying regularly at halftime before and after games. So, under existing doctrine, it would've been a question of fact or a mixed question of fact and law. Does the ordinary high school football player
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feel coerced to pray under these circumstances? If yes, that would violate all theories of-- all theories then existed of the Establishment Clause because it wouldn't have a primarily secular purpose. Or if you use the endorsement test because it was an endorsement of religion or if you were like Justice Kennedy and you prefer a coercion test, it was-- the question was, was it coercive? So the court didn't use originalism. And they could've said, as an original matter,
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we go back to look at history, and we conclude that the real, original meaning of the Establishment Clause was to prohibit coerced prayer. And this is not coercion. They could've held that. They would've gotten the same result as they got. Instead, the court in the process of throwing out all the existing doctrinal tests, did not declare a new doctrinal test except to say, we use a test of history and tradition. I guess that is a new doctrinal test in this context. Why?
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Why not just lay out the history? And, when I was a baby professor, I wrote my first articles and one of my first books all about the Establishment Clause. And I, actually, argued-- I mean, I'm not an originalist. And I wasn't making an originalist argument normatively. But I argued at the time, and I don't think anyone's really refuted it since according to me, that the original meaning of the Establishment Clause did include as part no coercion. I summed it up in two phrases.
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So if you want to be a law, it's nice to have a little slogan. So my little slogan was, no coercion, no money. That may be part of the problem here. So the no coercion part was that the framers believed universally that if the government coerced me in a matter of religion that that violated my fundamental rights. And that would've included coercing me to pray if I was actually coerced. And then the no money part was, and because they believed, in their tax obsessional way, that taking my taxes
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and giving them to the government and the government would use them for religious purposes would also be coercive in some sense, they, therefore, believed that it would be unconstitutional for the government to use any government funds to support religious purposes. That was my summed up view. So they could've done that. And since this isn't a case about money, they could've just said, we have a coercion rule in public display cases. And then they could've talked about whether this
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was coercive or not. They could've just concluded it's not really coercive. And, in fact, as an original matter, it would have been a good conclusion to reach because they could have said, well, the framers didn't think that social pressure was coercion. They thought coercion was you would be punished or fined if you didn't do something. It wasn't until the 1960s that the court started to imagine that social pressure might count as coercion in the Establishment Clause.
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And it wasn't until the 1980s that the court formally announced that doctrine. So they could've gotten rid of that in one moment. Why didn't they? So, here, I think the answer is that the court didn't want to say that all school prayer can officially be reinstated in the United States. If they had said, coercion, according to the framers, is only forcible coercion, then you could have school prayer as long as kids weren't lawfully mandated to pray. They could just sit there.
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And this court, fascinatingly, seemed to think that that would amount to such a transformation in the social realities of how religion and state are handled in the United States that they didn't want to go there. And I don't think it's like, as some of my "sky is falling" colleagues think. They're just doing that now. But, soon enough, we'll have school prayer in every school because then why not just do it. I mean, it was a good time to do it.
33:11
Everyone's already mad at them about Dobbs and Bruen. And I think-- I would argue. I'll be happy to talk about this in Q&A too. I would argue that this court has adopted a strategy in constitutional revolution of doing all the big things really fast up front. And then seeming kind of moderate afterwards in comparison. I know you say, well, when does the moderate part coming? It's coming. It's coming this summer. It's coming this summer in guns. It's coming this summer in the mifepristone case.
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It's coming. Yes, they'll do something to Chevron of some kind. But, outside of this room, no one in America will care. [LAUGHTER] Here, we care a lot. Like, it's hard to gin up worry about Chevron. You can do it by trying to convince people that it has big environmental consequences, which it probably does. But the court can-- as just Chief Justice Roberts knows, the court can do everything it wants using major questions doctrine without overturning Chevron. So the damage has kind of already
34:06
been done they're doctrinally. But, anyway, the court could've done this here. I think the reason they didn't do it is they genuinely don't want their revolution to include the re-institution of daily school prayer in American schools, which if they had issued that judgment, all over the country school districts would've jumped up and started doing that. Not everywhere. And there would've been a big social fight about it. And I don't think this court wants that fight to exist.
34:31
History and tradition, on the other hand, gives you a little bit of room because at least now, since the 1960s, in most though not all schools in the United States, there isn't formal organized school prayer. Every year, when I teach the school prayer cases, I always ask people to raise their hand if they grew up in a district where there was prayer in the public schools or if they did Teach for America in a district where there was, and I've always
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got one or two people who are like, yeah, yeah. And it's a good opportunity to teach people that it's just that the Constitution isn't always fully enforced everywhere because you'd have to be the one person in town who calls the ACLU and litigates and says you can't pray. And there are brave crazy people like that all over the country standing up for Constitutional Rights, but they're not in every village and town in America. So I think that's why the court preferred history and tradition.
35:27
They can say we do now have a tradition nearly 60 years old of not having prayer in the schools, even though it was preceded by a tradition going back, not to the framing because, at the framing, there were no public schools in the United States, but to the early 19th century of nondenominational prayer in public schools. So that was, say, 140 years of tradition depending on how you count. And now we've got 60 years of tradition the other way. And the court hasn't said this, but I
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think that's why it's saying history and tradition. OK, now let me zoom back out. What are these three cases have in common? Well, they have in common that there's more flexibility to reach the conclusion you want to reach if you say history and tradition than if you say originalism. It's not that there's no flexibility in originalism. The argument that originalism is just objective and factual. And there's no room for maneuver. Although, Justice Scalia did try to maintain It in a lecture
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that he gave towards the end of his career. It's pretty hard to sustain. Everyone, even an originalist knows there's some wiggle room. But there's not an infinite amount of wiggle room, especially in these kind of hot-button cases. History and tradition can let you do almost whatever you want because it implicitly suggests that you're picking and choosing. Otherwise, why call it history and tradition? What's the difference between history and tradition analytically?
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History, Justice Scalia said it was objective. I don't particularly buy that. But it is about the interpretation of empirically observable evidence. You have to do the interpretation part. But there's still some facts you have to empirically interpret. Tradition, though, means something different. Tradition necessarily implies identifying the core value of what you consider to have been there traditionally and carrying it forward. It also implies potentially some degree of change in evolution.
37:26
So what history and tradition does is it gives you the capacity as the majority of the court to craft outcomes that you want. So here's my hypothesis one. Hypothesis one is that originalism is a great doctrine for dissent and a terrible doctrine for majorities. In its earliest form, originalism was introduced to the court, I argue at least, by Justice Hugo Black, who was the first Justice to do systematic and extensive originalist research.
37:58
There are some moments in the 19th century of use of history in judicial opinions. You see it in Chief Justice Taney's opinion in Dred Scott. You see it in the court's opinion in a case called Reynolds against the United States, which is the first free exercise case the court ever considered about a federal law that effectively outlawed the LDS church. These are rare occurrences. And the history is-- it's not of like the sharp, precise attempt that originalists nowadays like to do.
38:34
But Justice Black did try to do that. And so, in consequence, his reason for doing it was that he did not like the Lochner-style jurisprudence that, in his view, made up constitutional rights out of substantive due process thin air. And he believed, as a liberal, that an originalist interpretation of the 14th Amendment would get you incorporation of the entire Bill of Rights. And, by getting that for you, would have a firmer less discretionary hook for advancing rights.
39:13
And he held that view for a long time. It was a liberal originalism. The conservative originalism, which, as I said, began to evolve with people like Raoul Berger, even before Justice Scalia but which we associate with Justice Scalia, is a dissenters originalism as well. It's a dissenters originalism that says what you all are doing a majority is not responsible to these sharp principles. So it's a great dissenters tool. And, when you're in dissent, you can make sharp, clear arguments
39:49
because you don't have to worry about the consequences of your decisions because they're not the majority. Once you're in a majority, originalism is a very awkward tool to use. So that's hypothesis one. And note that if that hypothesis is correct, it represents the first intellectual crisis for conservative-- modern conservative legal thought. It's not a practical political crisis because they've got the majority. But it's an intellectual crisis because you have this movement that, as I said,
40:21
very admirably stated its beliefs and values, or attracted young people based on its beliefs and values. And the minute-- the minute they got into power, on their biggest issues, they're not using their methodology. So I would call that an intellectual crisis. And, this is beyond my purview, but if you think of, for example, the appeal to many young conservatives of recent work on Common Good Constitutionalism by my colleague Adrian Vermeule, you can see that this crisis has consequences
40:47
because Professor Vermeule isn't just not an originalist. He's also not a history and tradition person in the ordinary sense. He's making an argument that he bases explicitly on the work of the late and very great liberal constitutional theorist Ronald Dworkin, according to which constitutional interpretation is values all the way down and is not constrained at all by anything other than your values. And that's now Professor Vermeule's position. So anyone who holds that view cannot hold the view
41:17
of originalism. And so I'm just mentioning this only-- I mean, it's a fascinating subject. I'm mentioning it only to show you that the battle lines of this intellectual-- in the aftermath of this intellectual crisis are already forming. OK, second point about the history and tradition. Should we be upset about this history and tradition if we weren't originalists in the first place? One of the logical things to say in response to this is, OK, that's nice.
41:45
We, people like me who are critics of originalism, have never wanted anyone to be originalist. So how-- far be it from me on this theory to complain about the fact that they're not using originalism. I always said originalism is not the original meaning of the Constitution, which is a big problem for originalism. The framers were not originalists. They were anti-originalists. So that's a problem. And originalism isn't really objective because history isn't objective.
42:08
And you can't actually do originalism in practice because it's too messy and too difficult when cases raise new problems. So I should be thrilled. This should be like a celebratory lecture. Thank goodness they're not using originalism because it was dumb anyway, and I was right all along. And there's nothing law professors like better than having been right all along. So you could say that. You could say, well, history and tradition is just-- it's just values analysis all the way down.
42:31
I think this is probably what Professor Vermeule would say. It's great. If that brought us to the party, great. Now we can drop it, and we can just do the values and give good conservative outcomes. There is, however-- and this is my second hypothesis-- a difference between history and tradition and the substantive due process traditionalist evolution usually associated with living constitutionalism. That approach was oriented towards the expansion of liberty.
43:01
It was based on a Whig interpretation of history, according to which we get more liberty all the time. And if that idea seems like it's an implausible one to you, it's not dead by any stretch of the imagination. It's Martin Luther King Jr. saying that the arc of history bends towards justice. It's President Obama taking that phrase and making it a kind of key slogan. And that is based on a belief, a kind of political theological belief that things get better. They may not get better every day.
43:33
They may not get it the way we want. It may take a long time. We may sometimes go backwards. But, in the long run, the arc of history is towards justice. That's what I mean by the Whig constitutional theory. That's what's behind the substantive due process idea. We use this doctrine to expand liberties. History and tradition, as it's being formatted now by the court, seems to be doing the opposite. It seems to be intended to go backwards and say, well, we may have had a right for a while,
44:02
but we don't need to have it anymore. And that's Dobbs. Now you could say plausibly that that's not true of Bruen. Bruen is actually directional. It's more gun rights. And that's a fair point. When it comes to church and state, it's a lot harder because if your worry is about coercion, the idea that we're going to have a less expansive conception of coercion doesn't seem to me to be directionally liberal. Notably the court could have in Dobbs said--
44:31
and this is a way one could read Dobbs-- we are actually expanding liberty because we're expanding the liberty of the liberty interests of the unborn fetus. So if you read it that way, there is a way to claim that Dobbs-- and, in the long run, we may see people saying that Dobbs is actually a case that's just like the other substantive due process cases because an expansion of liberty, but it's an expansion in a different direction. But, in practical terms, that is not
44:57
how Dobbs is functioning in the real world. And it's also not what Dobbs explicitly says. In practice, Dobbs is about taking away a constitutional right that every American has had for half a century. So that's why there's a difference. And that's why I'm not calling this lecture "Two Cheers for History and Tradition". I'm giving "No Cheers for History and Tradition". When it comes formulated as a "get out of jail free" card to avoid the consequences of originalism
45:27
while simultaneously producing conservative outcomes. And, again, a pure pragmatist would say, why are we bothering with any of these theories? All the courts ever do is just decide what makes sense to them under the set of circumstances, the decisions that you read, the time you spent reading doctrine is all a fake out. It doesn't mean anything. It's just cover. And the best opinions are the ones that say, on the one hand and on the other hand, Justice Breyer's idealized form of opinion.
46:03
On the one hand-- on the other hand, this seems right to me. I'm open to revision because I'm a pragmatist. That's a real respectable view. Interestingly, the pragmatists don't always lead with the radicalism of their view. It's an interesting puzzle as to why that is because the pragmatists actually have much more in common with a more radical critique of jurisprudence than they publicly like to acknowledge. And there's reasons for that too that I'm happy to talk about if you're interested.
46:35
I myself recognize pragmatism as one of the respectable modes of constitutional interpretation. But I'm unsympathetic to the idea that the arguments don't mean anything. At a minimum, even if you don't believe they constrain, the arguments shape rhetoric. They shape discourse. They convince people to get on board. Or they convince people to get off the bus. In this instance, we have a fascinating case study of a legal movement that cared a lot about ideas, deeply,
47:06
and in a deeply respectful way about ideas that is now, because it's in a majority, seeing the fracturing of its ideas because they don't work in practice to get the results that the people in the movement want and is now going to have to develop some new set of ideological approaches to manage the revolution as it goes forward. My closing thought on this is that that's what constitutional development is. Neil mentioned that I inherited the blue con law book from Kathleen Sullivan and still
47:47
spent a lot of my time every year working on shaping and revising. And it's 2,000 and something pages long. Apologies, I didn't put most of those in. When you're doing that, what you're doing is you're trying to figure out the shape of this very complicated, moving river that is the body of doctrine. And I do that because I believe that that doctrine matters to shaping the law, not that it's fully determinative. I just gave you cases where it isn't but that it shapes it.
48:14
It's the language by which we do law. And, here, we're seeing fascinating and rich developments in that context. And the positive thing that I want to close with is to say, this shows you that legal ideas matter. It shows you that what we do for our livings when we're in law school, whether you're a student or teaching, is part of a process that has real-world consequences and that shapes real-world experiences for real people on the most important issues you can think of.
48:51
And, in that sense, I will save, having a history and a tradition of caring about legal ideas potentially can serve us very well indeed. Thank you, and I'm very eager to hear questions. [APPLAUSE]
49:14
AUDIENCE: Thank you so much for coming down. That was terrific. Very [INAUDIBLE].
49:22
So I have a different explanation. I don't think [INAUDIBLE] inclusive. But [INAUDIBLE] Although, I don't at all [INAUDIBLE] several commitments, which points to a kind of fracture in the idea of self. So I don't think you actually said this. Maybe I missed it. But the originalism, in its current version [INAUDIBLE] by Scalia committed to not just original meaning but original public meaning. So that's [INAUDIBLE] kind of conventionalism about [INAUDIBLE]. So we look to the meaning of terms
49:52
as given by the semantic conventions in time when the terms were enacted. But why did originalists, particularly Scalia, like that for two reasons. One is the conventions are a matter of social fact. So judges don't have to engage in ethical reasoning to figure out what the conventions mean. It's a matter of social fact and established. And, second, there's a kind of a nice higher democracy picture. We the people, ordinary citizens, ratify these terms in light of these conventions
50:24
apparent to everyone. And that's [INAUDIBLE]. The problem with conventional meaning is that it runs out. We've known that since [INAUDIBLE],, famous example of [INAUDIBLE]. All the [INAUDIBLE] possible application of the term where it's not really clear in light of linguistic conventions. And all the great jurisprudence-- I mean Hart, Dworkin finished in different ways, say that, when conventional reading meaning runs out, [INAUDIBLE] text of the statute, text of the Constitution, judges
50:52
engage in ethical reasoning. But, of course, Scalia didn't want to say that because that was part of the reason the reason [INAUDIBLE] and others are in part [INAUDIBLE] sale was that this [INAUDIBLE] for judges not to engage in ethical legal reasoning at all. So what do you do? Well, in a way, you have given the inevitable gaps in conventional meaning rather than point-- rather than try themselves to engage in ethical reasoning. They point to history and tradition.
51:22
And, by the way, that also affords them a way to get what they want ethically. That's an extra benefit. But, in a way, and this is-- there's a flaw in this very conception of original meaning, meaning original public meaning, meaning conventional meaning, which inevitably [INAUDIBLE] going to run out. NOAH FELDMAN: Yeah, I mean, I myself tend to agree with that analysis. The best defense of the Scalian position that I could offer would be that, on Scalia's view, when
51:49
you're trying to do your originalism and ditto for your textualism, and you get to the moment where the positive nature of the rule runs out, and you need to-- because of the open texture of language, you should, in the Scalia view, restrain yourself. So Scalia's view in constitutional cases would be, when you're in that zone, don't declare a new right. That I would say-- and this is what Scalia says about levels of generality, for example, in substantive due process cases.
52:17
I note that Scalia himself never rejected substantive due process altogether, unlike Justice Thomas. This is where Justice Scalia liked to say, in a passage that has been repeated I think more than a dozen times by some of them in writing and some of them in speech by Justice Barrett, I am an originalist. I am a textualist. I am not a nut. And what he meant by that-- and it's significant that Justice Barrett likes to quote this. What he meant by that was there are lines of doctrine
52:46
that are inconsistent with originalism. And I'm not for throwing them all out. That matters because it's one of the reasons you can see why Justice Barrett is not an "all the way down the line" originalist. So I think that would be my defense of the Scalian position. It's not a very philosophically sharp defense. It's more like when he loses the philosophical argument, he has a kind of counsel of prudence in the form of judicial restraint backed by a political theory about the people
53:12
having spoken with respect to these rights. All of that's just, this is an agreement. All of-- with Professor Adler, all that's off the table now because they're not doing originalism. And so there's no way that a history and tradition analysis can look like it's grounded in the theory of positivism, according to which there are rules, and we follow them. That's not what history and tradition looks like. History and tradition is wide open. It's a game of interpretation.
53:38
So I think-- I mean, I agree with your accountant. I think it's consistent with mine too. Yes Jed. AUDIENCE: Nice to see you. NOAH FELDMAN: Thanks for having me. AUDIENCE: So your concluding lesson was that legal ideas matter. And if I had been a student who had left to take a call from a firm 30 seconds early, I would have said, it was a great lecture. His point was about how legal ideas don't matter. [LAUGHTER] But, for the benefit of that student,
54:08
I wonder whether you could say a little more about-- NOAH FELDMAN: I love that the student came back after taking the call from the firm. [LAUGHTER] That's the kind of student we like. Yeah. Future donors [LAUGHTER] AUDIENCE: [INAUDIBLE] the distinction between [INAUDIBLE] ideas that matter. They may matter, in a bigger sense, in terms of how we explain what we've done. And I take it there will be ample evidence from the [INAUDIBLE] matter in that way. And then a sense in which they might
54:35
matter because they determine or constrain what we do. And I think that a lot of what you're saying is that originalism is great for dissenters because it lets them explain what the other person ought to have done without taking responsibility for doing it, but that it ceases to work when offered as a criterion for decision-- [INAUDIBLE]-- NOAH FELDMAN: Yeah. Yeah so-- AUDIENCE: --ideas matter-- how do legal ideas matter? NOAH FELDMAN: So I want to say they matter in both ways,
55:02
not that they're fully determinative. And my proof-- and this is what I was trying to say. I maybe didn't say it as well as I should have done. The original puzzle that I started with, why not use originalism? The answer is, because ideas matter. If ideas didn't matter, then you'd say like, we got here with originalism. It brought us to the dance. Now let's take it home with us. Right? But the conservative legal movement which cares archetypally more about the consistency of ideas,
55:28
more about saying what it's going to do, more about being honest, more about debate about these issues than any other of the leading constitutional movements, in my estimation, didn't do that because once they got there, they were like, whoops, we actually can't, with a straight face, decide these cases on originalist grounds. So to me, that shows you that the ideas matter to them because they offered this different set of justifications. Do they matter in the sense that you always
55:53
have to go home with the person who brought you to the party? No, they don't. They don't. But that wouldn't be ideas. That would just be your commitment to having the same ideas. Now you're at the party. You realize circumstances are different. You're going to leave with someone different. That matters-- so I'm saying that that matters. And then it also matters because the future direction in which the cases will be decided won't be using originalist line.
56:16
And so that's going to open up a whole lot of space in a whole bunch of new doctrines to do a whole new kind of legal writing, which, by the way, part of the reason it's so hard is it's already hard enough to edit down a case about-- an originalist case. Because how much of the originalist history do you include? That's already hard. But it's basically impossible to do it with a history and tradition case, where there are 50, or 60, or 70 pages of detailed analysis of the Halbert Laws.
56:43
And why does it matter what it takes to edit down a case? Just so you realize that I'm not making some annoying law professor-y point. They're like, poor little me. I'm saying something different. You guys, the students in the room, you are the audience of Supreme Court opinions. Full stop. You are the audience. Practicing lawyers don't read these opinions unless they're arguing a case in that line of doctrine. Then they devour the entirety of the-- but that's, like, five people. [LAUGHTER]
57:09
And as the Supreme Court practice gets constrained and more and more, it's going to be like two people. And the public doesn't read them. The public reads Adam Liptak's summarized version, or if they're nerdy and on Bloomberg, they read my summarized version, or Dahlia Lithwick's much more entertaining and usually better summarized version. [LAUGHTER] That's what the public gets. You're the only ones who read the opinions. But you don't read them the way they write them.
57:33
You read them the way we edit them down. And that becomes the law, not just, obviously, my casebook, but all the casebooks. That becomes the law in your minds because you are the law. The law is a set of legal ideas in your minds. And so when I say you can't edit down, what I mean is, you can't really offer it as a kind of digestible form of argumentation. And that's going to open the line to, it's not outcome-restrictive. I agree, Jed. But it matters for the overall shape
58:02
of how the arguments are going to be made, how the cases are going to be done. I think the mistake comes in in thinking what cannot be the case-- this goes back to Matt's point-- it can't be the case that a rule will fully constrain. That's just not a thing. But it's also not a thing that the rule doesn't constrain at all. This is why Professor Vermeule is wrong and Professor Dworkin, in my view, was wrong towards the end of his career. He was right at the beginning of his career when he said,
58:27
there's a very complicated relationship between the rules and their interpretation, and your values. And at the end of his career, he threw up his hands and was like, you know what? Its value is all the way down. That was wrong. It was a mistake. And I don't think that. So that's my best shot at an answer. Yes please. AUDIENCE: So thanks so much for taking the question. Yeah, I wanted to talk about your first supposition about originalism is great for dissents, not great for majorities.
58:51
The interesting thing about any regnant legal philosophy is when it becomes the regnant legal philosophy, there are more cooks in the kitchen that are looking harder at it and, hopefully, refining the doctrine and making it more useful. And so when people make these claims that they're not using their own tools now that they've got to the court, or that the framers were not originalists, I wonder how you square that first with the divide you've cleaved between originalism and history
59:17
and tradition. To take Bruen, for example, I would love for you to disaggregate the difference between, specifically, originalism as you define it, and history and tradition. And how do you decide in a big tent way that history and tradition is not just the most evolved, best version of originalism? NOAH FELDMAN: I see. Yeah. I hear you. Yeah. AUDIENCE: I say that to say also that within Bruen Thomas says, by the way, we're not historians. It's narrowing down.
59:42
But at the end, you have to reason by analogy and pick something. NOAH FELDMAN: Yeah. And that's an amazing moment in that case because it's the opposite of public-meaning originalism, which you just read every single word ever written about public-meaning originalists by academics, judges, and whatever. They say precisely that's not what you do. You look at the original meaning, the semantic content. It's a rule. You figure out what it meant, and then that's what you do.
1:00:06
They never said that last part of it. You're not supposed to pick your friends. And to me, in practice, an originalist analysis would have gone back to the meaning of the Second Amendment and would have delved into what the right to bear arms could possibly mean semantically, in light of the explanation that immediately preceded it. Because like the most important thing in all of language is framing. And if I say this thing, and then I say the next thing, that's how you know what I'm saying.
1:00:30
And that doesn't matter whether you're an algorithm or a human, that's how interpretation works. So that's what a real public-meaning originalism would have had to do. And they never do it in the case. And then, at the theoretical level, there's the description that doesn't match what originalism looks like. And then last, there's the fact that Justice Thomas doesn't say, this is an originalist opinion. He says, history and tradition. He could say it. This is, again, he's being honest.
1:00:50
He's not lying. He's not. He's not consistent with what he did before. But he's not lying now. So credit is due. I know we're coming to the end of our time. Do we have time for Stuart to get a question in or do we-- did I-- NEIL S. SIEGEL: We do not. NOAH FELDMAN: All right. I'm sorry. [LAUGHTER] It would have been a short one. I'm so sure. NEIL S. SIEGEL: It's clear that we all agree about these matters. [LAUGHTER] Leave it at that. Please join me in thanking Professor Feldman.
1:01:16
NOAH FELDMAN: Thank you. [APPLAUSE] Thank you.
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