Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution

Good afternoon. I am David Levy, Dean of the Duke Law School. Welcome to the Brainard Curry Memorial Lecture. This lecture series is named in honor of Professor Brainard Curry, who taught contracts, admiralty, and conflicts of laws at Duke from 1946 to 1949, and then again from 1961 to 65. He was a much admired scholar and a beloved teacher here at Duke, as well as at several other schools. He was a leading theorist of his time on the conflict of laws. This lecture series began in 1967, and since that time, it has been given by truly extraordinary scholars of the first rank. And this year, no exception. This year's lecturer is Judge Guido Calabrazi. Judge Calabrazi is a preeminent judge, teacher, and scholar. He has been hugely and deservedly influential through his scholarly writings, his opinions, and his students and law clerks. How fitting and proper, then, that one such former student and law clerk, a very own esteemed colleague, Joseph, Professor Joseph Blocker, will introduce Judge Calabrazi today, Professor Blocker. Thank you, and thank all of you for being here. It is my distinct honor and privilege to introduce today my teacher, mentor, and friend, Guido Calabrazi. Guido is sterling Professor Emeritus at Yale Law School, where he joined the faculty in 1959, served as dean from 1985 until 1994. In 1994, he was confirmed to the United States Court of Appeals for the Second Circuit, and he is still very active on the bench and in the classroom. In fact, taught his tort students the learning hand test yesterday morning, before flying down here into the face of the hurricane to join us. Guido is, of course, a towering figure in legal scholarship, one whose influence, I think, actually transcends citation. You are all influenced by his work, even if you don't know it by name. But among his most influential pieces that you may know are what was originally his student note, some thoughts on risk distribution in the law of torts. His article with Doug Melamed, Property Rules, Liability Rules, and Inalienability, one view of the cathedral. His books, including the cost of accidents, tragic choices with filibobits, a common law for the age of statutes. And most recently, how'd off the presses, in fact, the future of law and economics, which will be available actually outside after the lecture today. And about that, I'll just say that Guido is one of the handful of people who created the field of law and economics, as we know it. So his thoughts on his future are surely not to be missed. Today, in the next hour, he's going to be exploring the topic of equality in the American Constitution. And I hope that you will join me in giving Guido Calabrese a very warm welcome. I'm going to take this thing off, and oh, great joy to be here. The last time I was supposed to come to do many years ago, there was, it was in April. The member was a blizzard, and everything got canceled. You don't have many blizzards here, but you did. So when I heard about the hurricane, I thought it was going to happen again. But I told my law clerk, who is the one, of course, who does everything for any judge, make sure the hurricane stays out. And Joseph, as you know, is that kind of a person and managed. Having been a dean, I know that dean didn't do it, because deans don't do anything. They always have people like Joseph to do that. Anyway, a great joy to be here. I am a judge now, as a senior judge, two-thirds time. And I'm a teacher, two-thirds time, which means my math is as bad as it ever was. And today, I'll be talking really more as a teacher and as a scholar than as a judge when I'm talking about this. I hope to leave some time for questions. And then I will have to ask you to bear with me, because I'm hard of hearing, and we'll figure out some way of doing that, where I think we can. I want to talk to you about equality in the American Constitution. And I want to start 58 years ago when I was, I just arrived in Washington to be a clerk for Justice Black. And it was an amazingly exciting time, because it was the summer in which Aaron V. Cooper was decided. The governor of Arkansas had decided to send troops to block the segregation of the schools in Little Rock. And Eisenhower was not particularly favorable to integration, but he had, at his right hand, two remarkable people, Herb Brownell, the attorney general, who was a yearly, and rank in the solicitor general, and they convinced him that it was essential to have the Supreme Court's orders followed, and so he nationalized the state guard and sent troops in to desegregate. Little Rock sued and said, you can't send troops. And it came up to the Supreme Court, I'm not describing it exactly right, but came up to the Supreme Court, and this was what happened before the term began when I just got there. And we were all there listening to the argument. And in the middle of the argument, the lawyer for Little Rock said that if troops were used, school and education would suffer. So one of the justices, meaning forward from the bench, said to Rankin, the solicitor general, do you can see that if troops are used to desegregate the schools, education will suffer? And Rankin stood there for a moment and then spun around three times and said, I concede that I concede more. I concede that lives will be lost if troops are sent to desegregate the schools. And I want the court to tell the nation in the world that there are values greater than life itself and that equality is one. And so the court held that extraordinary opinion, which was not only unanimous, but signed by everyone of the justices. I was very proud of the Supreme Court then. And I'm proud of it now, but as you will see, that decision in question about lives and what creates some problems, which will be one of the things that I'll be talking about today. I'll come back to that later on in my talk, but it is the framework for what I'm talking about. We tend to think of equality as being in the Constitution. Equality is a value being put into the Constitution in the Great Civil War amendments, the 13th, 14th, and 15th. But in fact, egalitarianism is a fundamental part of the American Constitution in each of what Bruce Ackerman calls the three moments, constitutional moments. The Civil War, the New Deal, with caroling products and discrete and insular minorities, which now after Bob Dahl, we know means also diffuse and disorganized majorities. But it was also very much in the framing, in the original part of the Constitution. I would argue that in fact, if you look at the American Constitution in counter distinction, with what was going on in France at the same time, where or shortly after, where the motto was liberté, galité, fraternité, liberty, equality, and today we would say not fraternité, but communitarianism, social cohesiveness, and so on. In the American Constitution, there were two themes, liberté and egalité, liberty and equality. fraternité has been in the American system, something which, whether from the right communitarianism or from the left, is something that the legislature has pushed, but was not really in the Constitution. And the kind of conflict between a libertarian and egalitarian Constitution and communitarian pressures from either side in, from the legislative coming later is a part of all of our history. Well, where was egalité in the framing? In many things, the Bill of Attainer Clause and things like that, but most especially, most especially in the First Amendment, religious liberty clauses. You've got to remember that more than slavery, more than anything else, what divided the colonies at the time they united, was religious differences. To be Anglicans in Virginia, the Calvinism of New England was in the Bahamadation. And to the Calvinists in New England, the popery of Virginia, not to mention Maryland, and those crazy Quakers in Pennsylvania, and who's to say what Rhode Island was, was extraordinarily troublesome. They had killed each other less than a hundred years before on account of that. And yet, the First Amendment at the federal level, because at the state level, and that's another thing, an article you'll see of mine coming out in Minnesota, at the state level, they wanted to have differences. But at the federal level, they declared the highest level of equality. There are no re-religions. There are no very religions. All religions are equal. There will be no affirmative action for any religion over any other, because all religions are equally re-religions. And every religion has a right to flaunt. That's a free exercise clause. You can be yourself, and you can flaunt. And all are the same. That is the highest description of equality. And what is more, Congress keep out. Congress shall make no law. The government stays out. People can be themselves, and are all equal. Now, in fact, even that, but we have don't have time to talk about it today, but if you want a question, it wasn't exaggeration, because of course, cults were out here. That's always a question of what is a cult. And the other thing is, I think that there may well have been affirmative action for secularists, which is kind of interesting, because there is no need for affirmative action for secularists today. And many of the cases that come up today really have to do with that issue, but that's another matter. But among religions, no we, no they, no affirmative action. Contrast that egalitarian statement with the egalitarian statements of the Civil War, of the 14th Amendment, especially with 14, 14, 15, 15. People who were not people will be considered people, the 14th Amendment says, not only will they be considered people, but citizens, not only citizens, but equal. And Congress has the right to act, to treat them equally. Contrast the two powerful egalitarian statements of these two, the framing and the Civil War restatement. Necessary in the Civil War context, because what they were talking about were people who were treated as animals, because in American law that's what slaves were treated as, and we're still suffering the consequences of that. So 14th Amendment egalitarianism, very different from First Amendment egalitarianism. But the people who wrote the 14th Amendment were very aware of the First Amendment, you go and look, and they knew perfectly well that that is the highest level of egalitarianism. The First Amendment egalitarianism, no weas, no ways, no affirmative action, and you have a right to flaunt, is the highest level of egalitarianism. But they knew it could be given to the people to whom the 14th Amendment was addressed. Not an accident, but the 14th Amendment congresses did plenty of affirmative action. Affirmative action, that is what initially they call substantive equality, is against formal equality, that you have to treat people who are in fact different because of the way they have been differently in order to treat them equally, and whether that is a person who cannot see, not being given the same reading exam as somebody who can, a person who cannot walk, not being made to go upstairs, and anything number of things of that sort was an essential part of what the 14th Amendment was about. They all hoped, and hoped that someday, this group too, these groups too, would be able to achieve First Amendment equality. When? Oh no. Justice O'Connor in Grootter says 25 years. 25 years said that way is like the Biblical 40. You know, in the Bible 40, and in the Middle East 40 comes up all the time. Alibaba in the 40 feaves, 40 days in 40 nights, 40 visits, it's meant a long time. You know, 40 in the Bible means a long time. We don't know when. And that's what Grootter says. Yes, it is something we are aiming for. I claim to be related to Israeli, and it may be true, and Israeli said something of that sort. In 1837, when the Second Great Reform Act was proposed, they said to him, and he supported it, in 1832, you said that the Great Reform Act of 1832 would last forever. And the Israeli said 35 years in politics, but it is forever. You know, that these words are words that say something. So someday, 14th Amendment equality will not be needed, and 1st Amendment equality will be. Something both happened with 14th Amendment equality, especially as it came to be applied to the masses of immigrants that came in from 1820 to 1980 to 1920. 14th Amendment equality, psychologically, not logically, but psychologically also came to mean we will give you equality if you act like us. That is, you can't flaunt. You have to be, like the previously dominant group, that's the melting pot. You know, the glory of the melting pot, what was said then, was, yes, equality, but you all behave like us. Contrast that with a 1st Amendment. Now that's not logical. You don't need to have that with affirmative action, with the 14th Amendment, but that's what tended to happen. And that then raises the question of today, today, what does one want? What kind of equality do different groups want? Immigrant groups, African-Americans still buy and large 14th Amendment equality, arguing against the melting pot and the need to be like everyone else fighting against it, but it is still there and pushing. What about other groups? What kind of equality do gays want? Kenji Yoshino, my law clerk and student, has made very clear that he thinks that gays want 1st Amendment equality. Leave us alone and let us flaunt. Let us be ourselves and do whatever we want. What kind of equality do women want? It's very interesting because if you look back in the women's movement, you see two very powerful strands. One which says, 1st Amendment, we are who we are. We don't need anything from you. We don't want to be like you. Let us be ourselves. Another strand which says, no, we have been created in some ways. We have to be held that maybe we should behave like men. Pauli Murray, a remarkable woman who was an African-American graduate of the Yale Law School, became the first African-American woman priest in the Episcopal Church and was also probably gay. When they named the college for her, they did everything in one person. Which is a bit much. But anyway, she tried very hard to pull these two strands together. She saw it and tried to do it. It didn't completely work. I should tell you that in my talks class many, many years ago, I was talking about some aspects of this with respect to women and said, of course, if women want equality on their own terms, it's going to be slower in being given, because the dominant group is much more ready to give equality on its own terms. You'll be like us, then give equality and you can be yourself. This student said what you're saying is just another male trick to slow us down. I said, it may be, but I think it may be what women want. Think about what you really want. And we argued and she graduated three or four years later. I get a note from her saying, dammit, you're right. It was Catherine McKinnon, it was Catherine McKinnon who had come to a decision that what she wanted was equality on her own terms. So which is it that one wants? Now, today, for the first time you are getting something which may say, we want 14th Amendment equality, but we want the right to plot. That is, that is what, in some way, Hispanics have been pushing for Spanish language and other things. Maybe the coalition of Hispanics and women will be able to push for it, because I say there is no logical necessity that 14th Amendment equality doesn't have a right to plot, but it is very hard and I'm still enough quite clear that it is going to go. Okay. Okay. This is kind of the background of where we are. Now, the problem with 14th Amendment equality role is that it does mean that some people are bearing the burden of this affirmative action. You never do affirmative action without putting a burden on someone. So let's come back for a moment to Aaron Cooper. And as I was thinking about this, I thought, this is beautiful, this is great, but whose lives will be lost? Whose lives is what court say it is worthwhile losing because equality is a value greater than life? Not the Supreme Court, you know? Not people in Washington, it was, would be some kids in that school, in little honor. And about this same time I was courting my wife and I went to her house and I saw a print of a rather ugly looking fellow who was reading something while somebody held a taper, a great porch behind it. And I said, what's that? And my wife's father, a wonderful man, said, that's my great grandfather, my wife's great, great grandfather, Morris Tyler, mayor of New Haven during the Civil War, reading the riot act against the draft rioting. Very proud because this family, my wife's family had been anti-slavery, he was a Democrat that Morris Tyler, but a war Democrat for Lincoln on the right side. The first anti-slavery petition in the country was signed by an Abraham Tyler, a collateral ancestor way back in the 18th century. And I said, this poor poor was dating his daughter, but who were the draft rioters? And my father-in-law, cold roast New Englander, said, I don't really know. And I said, I know, they were poor Irish, who had fled to New York and New Haven. And from the potato famine, and had no interest in dying in a swamp, were of a great cause that wasn't theirs. They were the ones who would be dying, because after all, the draft was there, but the wealthy could buy substitutes and not go. And I said, I would feel a lot happier about this, if among the people who would be going getting drafted and dying in the causes where Daggots, Colby's, Tyler's, hookers, the old New Haven names, at which point my father-in-law to be lit up and said, good, let me take you to the grocery cemetery and show you how many Daggots, Colby's, Tyler's and Cooper actually were there and died. Because in New Haven, we did go along, by the way, Maris Vermeier lost the next election and was elected lieutenant governor, because the state had fewer Irish than New Haven. Okay, that made me think about what is really the telling point with respect to this. And that is that there should be a Fifth Amendment taking clause, link, and equality link with respect to when we have affirmative action. That is, there should be something that makes the burden be put, not just on the kids who are there, on the poor white steel worker who loses his job so that a poor black steel worker gets the job, but something that says we all pay, all of us, Daggots, Colby's, Tyler's, hookers. That's what the Fifth Amendment taking clause does when we're talking about taking the part. Taking somebody's land to build a park, taking somebody's land to build a highway. We always say we must compensate and charge all of us for this so that what we are doing is what? The first thing is so that we are sure that we really want to do this. You know what the taking clause, and this is where I go back to being a little bit lawyer economists saying that so that we are sure that we want it, because it's very easy to say I want the park. If I don't have to pay for it, but the person who owns the park, it's very easy to say I want this, infringement and liberty, if that infringement and liberty is only on you. It's much harder to do it if it is on you and on me, and that's what the taking clause is about. That's what the taking clause is about, and by the way, I hate to say this, but the best statement of that, of equality as being the guidepost between infringement and liberty and communitarianism, whether this is from the right or from the left, was actually said by Nino Scalia, I say to say it, in the Cruzan case where what Scalia said, are there no reasonable and humane limits that ought to be not to be exceeded in requiring an individual to preserve his own life? Yes, but they are not set forth in the due process clause, what assures us that we won't and then he parades a parade of horribles which are ridiculous as a parade of horribles. I mean the silliest horribles you can imagine limits on driving, things like that, what bothered him or not what bothered me, but it doesn't matter. He parades his horribles and he says what assures us that our salvation is the equal protection clause which requires the democratic majority to accept for themselves and their loved ones that which they impose on you and on me and others. In other words, we must bear the burden if you would impose it on them. Beautiful, now of course Scalia didn't mean it, that is, as we will see, no, I mean he meant it but then he interpreted the equal protection clause in such a formalistic way so that it didn't do the job he wanted it to do because if you interpret the equal protection clause purely formally so that the law in its equality for bits of a rich and poor from sleeping under bridges then the equal protection clause does nothing if you don't worry about whether a law against abortion is wanted by people who don't like women or if people who genuinely believe in fetal life and would be willing to bear the burden and say it doesn't matter because it is equal, everybody men and women are prohibited from having abortions, you don't get much of a safeguard, you don't get much of a safeguard on it, so he doesn't need but the idea, the idea that it is that, that somehow you can impringe liberty, liberty in the interest of fraternity, communitarianism but you can do it only if it is equality if we all bear the burden is a fascinating notion if we can do it, if we can do it and by the way this is not right and left, I can give you examples of both sides, of both sides. Should we, drugs are terrible things, terrible things, so do we test only athletes for drugs, high school students, people who live in projects because we want to do drugs or do we also test people for drugs who live in wood bridges where I live, you know, getting on planes with terrorism is dangerous, dangerous, do we stop people who only look that way when they come or do we stop the judge, every time they stop me and search me, I'm delighted because I say look, that means that we really mean it, that this is bad enough so that we want this, that the same is true with respect to bussy, that is do only the people who go to public school and so on bear that or doesn't have to be all of us, so it is both right and both left, now it sometimes is hard, I mean how do you do this, how do you put the burden on everybody, I don't want to be seeming to be saying anything substantive ultimately about abortion because it's too difficult to think, but how would one do substantive equality with respect to abortion? Well the first question you would ask is if men became pregnant, would there be laws against abortion? Some people say no, some people say yes, if there were laws against abortion, if men became pregnant as well as women, would those laws be unconstitutional? I don't think so, I don't think so because it would mean that this is something, it really, now what can one do if one is really, really profitous people life but pro equality? What show of earnest in that could you have? Well I have a joke, not a joke, I'd say okay, it's not the same thing but maybe you can show something about how serious, suppose a state said we don't believe people own their own bodies, their own bodies should be used for those who need them, therefore we prohibit abortion or abortion after a certain time or something to women and men must give up their kidneys, their bone marrow, their livers to those who need them for transplant, the law requires it, now not the same thing but it would be a mighty interesting show of earnest if you did that, now when I usually say that there's always somebody, usually a man who says ah but it's only women who engage in sex who have to worry about abortion and I say that's an easy one, only men who engage in sex have to give up their kidneys, their bone marrow, that's simple, that's simple, what I'm saying is that if you want the equal protection clause to act as this safeguard between liberty and fraternity then it has to be not a formal one in the way that Scalia then applies it because then it disappears, you know that may be a way of doing it but then it will not protect you and it will not, it has to be a substantive one and if it is a substantive one sometimes it can be cast everybody for drugs or do this to everybody or make everybody pay sometimes you cannot make it equal but then you do the nearest thing to it, doing the nearest thing to it is easier in Europe where they are more much more aware of substantive equality than it is here for a very interesting reason because doing the nearest thing to it is not treating people the same way it is treating people as near to equally fair as one wants, as one can and in the United States that is much more difficult to do than in Europe because we are cursed with separate but equal, you know we have the history of trying to say, of lying and saying we are treating people equally fairly but differently when we weren't and that is still with us so that we are more suspicious and properly so of anything which is feeding people differently but equally fairly which makes it much harder for us to do some of these things in Europe and on the other hand if you are going to use a gully take as the controlling thing you are going to have to find ways of doing it because you can't always do it the same way well okay there are and you know there is an awful lot of more that might be said and you know you can think about many different things on this the difference in the question of laws against Saudi me whether they are struck down on equal protection if they are not done for everybody or ever they are struck down on due process one libertarian the other one in the egalitarian you can talk about drugs you can talk about terrorism and whom you search you can talk about bodies you can talk about affirmative action you can talk about taking the park now I have a way well I won't get into it it's just too long and we don't have enough time there are two fundamental problems with doing what I've said and that is using egalitarianism as the balance real the first is the problem of Washington V. Davis that is the problem that if you are going to say a law if you want real not formally egalitarianism then you are always going to look to how a law affects different groups and all laws affect different groups differently and Washington V. Davis which says always something just has a disparate impact that doesn't matter is both something we can't live with and we can't live without we can't live with it because it is the basis of Scalia's formal egalitarianism but guts egalité from this fundamental thing and we can't live without it because to some extent every law does it and the question of how we deal with that is beyond the scope of this lecture it's something for you youngsters to worry about because we're struggling with it all over there are laws let's say disparate impact is not allowed there are laws places where it doesn't you've got to figure out some way where there may be virtual representation so that we don't worry about it and undo effect in some there's got to be some way of figuring that out because if we don't figure without we will not figure be underlying problem which has been bugging our society our constitution from the very beginning because it is liberté and the egalité and fraternity is what the legislature keeps asking whether from the right or the left so that that will have to be worked out somehow and how to work it out because by no means easy the second problem is a very different one and it's the problem of what why do we bother giving compensation when we know the park is worthwhile why should we bother giving compensation when we know we want the park when it doesn't have this economic significance function of telling us when we want it and there's a little very academicy story there's a guy at Harvard and in Kaplo who's a great scholar who got tenure at a time at Harvard when it was almost impossible to get tenure because the criss were fighting with the law economics were fighting with the traditional economist and no one could satisfy any of them and he wrote an article which got him tenure which was magnificent because it said why should we compensate when we have a taking of the traditional sort you know taking for a part when we know we want the park and he said in that situation we should look to whether the person from whom we are taking is richer poor that made him beloved of the criss but the fact that he did it in an economically way made him beloved of the law economics people and the fact that he was doing it in a property traditional taking made him beloved of the traditional people so they all voted for tenure which is magnificent the only problem with the article is that it ultimately doesn't do anything why do we do it why do we do it and my question comes back to situations where the affirmative action is not only something we know we want but it may be something which is constitutionally required so that there is no question that we have to do it back to Aaron V. Cooper there the desegregation was constitutionally mandated so why do we bother in that situation to require compensation of the people who are the losers it is no longer to see whether we want to do it because we know we want to do it or in some case as a constitutionally required but the reason is really a very simple one that if you do these things in all sorts of situations in order to see whether you want the park then the people whose land is taken for a park when you know that you want it are going to say why shouldn't I have the same right to be compensated as the other person that is you create expectations in people that this is theirs and that they should be given the equivalent where there is a taking and that happens all the time in the law for those of you who are tortsnicks it's one of the reasons why we do all sorts of things in torts law that may make no more sense in economic terms but which now we do and we do because people's expectations rise it is mine you can't take it just I can't go into it but think of Scott B. Shepherd the flying squib and why the court felt bound to give recovery where there was an indirect intentional act because there was for good economic reason recovery for indirect negligence act and at that point you have to treat people the same way and that's the reason we have to do it and should do it in the area where it is needed so that's a thing which can be can be solved and can in the way that Washington D. Davis remains a problem that there is one other reason and that is that if you have a situation where you have people asking for something and saying we have a constitutional right or we really should get it some have nots who want this and need it and have a right to and you have decision makers who are saying yes you have that right but we don't want to bear the burden we don't need to bear the burden it is we don't have to give compensation then what happens is with the people who are being burdened are going to say don't give them the right okay don't give them the right and at that point we the haves are in the position of say look at that scum out there it is they who are keeping you from your right not us we would let you have it but it is they who are fighting busting it is they who are fighting affirmative action it is they who are knowing all these things and they're disgusting and they're disgusting and that tendency to say it isn't us when the have nots come and ask for something but say it is someone else the little people and who are the little people that will vary in different society in Russia it's the Jews who are keeping you the poor from this it's a people in prison who are not giving you the transplants that you need you know it is always easy to say it is the base if we are not willing to take it on for us and that society it gets out of it that way is cursed thank you you have about 15 minutes for questions which what Joseph told me to leave and what I'm going to do please raise your hands and I'll rush around to where you are so I can hear the question that's what I do when I teach torts I instead of teaching from a podium I go around and the students think oh isn't he nice that he comes in as a question and it's only after a couple of weeks that I tell him that otherwise I couldn't hear a thing Walter Deltier this guy by the way was my student in torts before most of you were born and came in one day who's not only a brilliant student who made a point that I hadn't thought of really that he also came in one day with a guitar and some friends and sang a ballad about Ted Levy Elman if any of you remember that case in torts and got the case perfectly in the ballad okay I'm not saying the ballad it seems that it's a really powerful idea in your talk that there is a number of random taking calls that we should recognize the egalitarian how would he even title this paper the egalitarian number of the taking calls and I can think of one very powerful application and one misapplication is in your talk the powerful application is in the height of the Iraq war we invoke the cause to require soldiers whose time was up we force them into another two year commitment because we had to have at a time we were cutting taxes when the alternative was find out what is the market clearing price and so everybody pays and then see a egalitarian but no one thought of that in terms of it's taking but it follows all that on the contrary I think with affirmative action even if you go back to the case of the pocket where you're reserved in 10 places for minorities that is if every school had that it is a minor reduction nationwide of the number of places available and therefore it's already spread and exactly the way you would think well yeah so I mean there again you'll have to be careful about this and what is what gives an adequate compensation the person who doesn't get into the Yale law school because of affirmative action and has to go to Harvard you know tough I mean that's not a big deal in the person who doesn't have to go to Harvard to get into an excellent huh so that it is spread and spread out now whether at the bottom you really want then to say expand the best I don't know but obviously the compensation for a taking is never a full compensation even when you take for a part it isn't ever a full it's never quite the same it's always the kidney transp- donation next to the abortion situation it's always something and the question is when is it closing up and I think in many affirmative action situation it is that so I agree with you but at least there should be one of the things that is important is the showfulness is the show of earnest is the indication on the part of the haves that they are not simply doing this because somebody else whom we don't care about but for this we don't know that Alan Baki didn't get in because of affirmative action well of course if we don't have gotten in because he may have lost it out too yeah yeah that's a sense of which is spread I happen to because I teach a course in which I cause people to listen to the arguments that are made to the Supreme Court this and if you listen to the argument in Baki which is one which we do it's really quite fascinating because Archie Cox arguing in favor of affirmative action says here are the number of minorities in the learned profession today here are the number there will be in 10 years without affirmative action here are the number there will be in 20 years without affirmative action this is a disaster for the country therefore we should do it then the lawyer for Baki gets up and says my name is Shmet Drake or whatever and I have been the lawyer from Baki for eight years and then he stopped and he says I say that which was always said not in the formal sense in which I say it in which people say it I say it because Mr. Baki I've been Mr. Baki's lawyer for eight years and he wants only one thing in life to be a doctor and he is fully qualified except for one thing he is white now I don't say that's the truth of that case but that is how that case gets put and you can see each side making an argument that is powerful and what I am saying is that whenever that kind of argument can be made there is a great desirability to be able to say no that is not what is happening because of that is this is what we are doing I think he had a hand up first and I'll come back down I think one of the reasons that Justice Scalia reads the 14th Amendment very formalistically is because he is afraid that if we allow substantive equality into the constitution it will swallow up the formal equality and we see that debatably with issues like I know perfectly well I think I do why Scalia did that for many reasons he wanted to link himself to a gold standard because he was afraid of human reason and like anybody who is afraid of human reason he prefers gold to monetary policy because we can do that the only problem that I have so I have no objection of that my only problem with Scalia is that he was like somebody who adapts the gold standard for that reason and then owns the coal mines that is he had enough control of language because he was brilliant in his control of language so that he could make the language do whatever he wanted so that there was his little restraint in what he could do is any that's my only objection of course he was saying that and there's a good reason for saying that if you are serious about it I don't ultimately agree it but there is a good reason but if you do that whatever the good reason then it cannot protect you from the liberty infringement then you are stuck with something which is every bit is dangerous which is to say then what infringements when the Constitution does not specifically speak because I'm just as much a libertarian when you have a First Amendment or when you have a specific thing in the Constitution I'm talking about situations where the Constitution is not that clearly libertarian but it's our generic libertarian background and then you have nothing that says why not go all the way and that's a problem and that's a problem that unfortunately you never face okay but you're right of course that's what he was doing rest is so how can you balance and we interpret that they're taking close in cases like the abortion you talk about compensating but when you talk about compensating with the Kennedy you already are thinking about parts of the human being and some people think that they're alive so for some people you are taking twice yes look here what I'm saying that I want to see whether somebody genuinely believes that our bodies are not ours but belong to those who need them which is a position that I can understand if there were a generalized Chernobyl would we say everybody has to give bone marrow transplant to those who need them when we draft people in the army we say your body isn't yours it belongs to the state so I want to see whether somebody is genuinely saying fetal life is something I care about the others life somebody who is like a Marxist or a early Christian from each according to his ability to each according to his utility functions and modifying that for purposes of a lawyer economist the some whether a person really is saying that if they are saying that then I've got to think about whether this is an infringement on liberty which is so fundamental or which I can find in the constitution so that I can say no or not but when it is you don't own your body only because it's you who have to give it up but not someone else that's when I have problems because that's like taking a part and you know it's not people who want the park say I hate the park owners the land owners they like the park so long as they don't need to pay for it so people can be perfectly all four fetal life so long as they don't have to bear the burden and I want or are can before test against terrorism so long as they don't have to be searched so what I want to do is try to create situations in which we see how serious people are about this infringement about this infringement and I should say that we respect to abortion that of course was Ruth Bader Ginsburg's position long before I mean she didn't like Blackman's position which was instead a due process position in Blackman said the fetus is not a person for purposes of our constitution that made everybody angry because it is our constitution not yours and it's not a person due process Ginsburg and I in some of my early writings if you read my book ideals beliefs attitude in the law I said something about the issue is a discrimination issue the issue is a discrimination issue and one of saying do we really want it if we have to go thank you so much Judge there was a wonderful talk I see two different strands I mean so one important strand which we just came back to now is that by asking people to run the thought experiment of compensation right in a way we're testing for how serious they are we're testing in a way for the intensity of the preference but that's different from having an actual digitally administerable compensation requirement I mean the problem with with pushing compensation beyond compensation for real property is having a baseline I mean I think now about I mean the clearest example recently of the need for compensation is the clean power plan right this is a wonderful plan it's required to save the word the planet on the other hand right moving to millions of people in West Virginia and in cold country are going to be harmed by it right and you know I think it's a it's a very plausible point that the policy process should take compensation I don't think the Supreme Court's in a position to require compensation for coal miners in West Virginia because it's the clean power plan in part because we don't have a regulatory baseline a great scholar not a yearly cast Sunstein made the point that if we're going to have a regulatory taking doctrine we're going to have to put in place a baseline and what would be the baseline in action remember I began this lecture by saying I'm speaking as a scholar not as a judge and I mean that seriously I'm making a point which is an academic point and a theoretical point how and where and to what degree one can operate it in practice and where it should be done is a very different thing and when I put on my judges hat I sometimes say now some scholars say such but of course we pay no attention to them and I usually cite myself and you know there's something very important in that distinction what you say is absolutely right and that comes back to Washington D. Davis it comes back to when it is practical how to do it where it is so important that we do it that even if it is not practical we have to try to do something which is close where it is less important all sorts of things which people of the world have to worry about but what I am doing or hoping to do in this lecture is to cause you to think about where it is essential where it is less essential and how we can use it so that we don't even completely say it gloriously as Scalia did but then for good reason from his point of view not do anything about it or do not it's one thirdly we have to stop thank you very much