I believe that the due process clause of the 14th

amendment does recognize and does protect an unenumerated

right of privacy. The

The only reservation I have is a purely formal

reservation in response to your question, and that simply is: No

two judges, I am sure, will...

I understand that.

I think probably it would be fairest to say that it

is a case in a confused line of cases and it is a case which, again

referring to the...

If I may. This attitude did not sort of spring up

without some antecedent in 1787. I am not an expert on the constitutions

of all of the...

Well, I think it is two things—maybe it is more. I

have no reason to question the scholarship which has interpreted

one intent of the ninth...

I have to count myself a member of that school,

because, in any interpretive enterprise, I have to start with the

text and I do not have...

No; my argument with the incorporation doctrine

would be with the proposition that that was meant to exhaust the

meaning of enforceable...

Yes.

I think the concept of liberty as enforceable under

the due process clause is, in fact, the means by which we enforce

those rights. It is...

Well, my recollection—and I did not reread Eisenstadt

before coming in here, so I hope my recollection is not faulty,

but my recollection...

I am sorry.

My recollection is that the criticism of Eisenstadt

at the time was whether the Supreme Court was, in fact, reaching

rather far to make...

I think the way, again, I would express it without

getting myself into the position of endorsing the specifics of the

cases, is that I believe...

I think that assertion by Justice Powell represents

a legitimate judgment in these kinds of problems with respect

to Moore just as in the...

I would assume that if we are going to have any

core concept of marital privacy, that would certainly have to rank

at its fundamental heart.

I did and I have, yes.

Yes, sir.

Senator, that is the point at which I will have to

exercise the prerogative which you were good to speak of explicitly.

I think for me to...

I think to explain my position, I think it is important

to bear in mind there are really two things that judges may or

may not be meaning...

I think, Senator, again, we have got to be careful

about the sense of the liberty interest. There is the very broad

sense of the term which...

But what—I am sorry.

My answer is that the most that I can legitimately

say is that in the spectrum of possible protection that would

rank as an interest to...

Thank you, sir.

Well, Senator, it is difficult to make a pronouncement

which is commensurate with the magnificence of the document.

If I have to explain...

Well, Senator, as we know—certainly you know

better than I, having sat in this Congress as you have—there is a

great overlap of subject...

Well, I suppose for anyone in the year 1990 to

speak admiringly of Marbury v. Madison is a fairly conservative

act, so I don't have any...

Well, of, course, Senator, I cannot speak expressly

for the Court, but I thi^ik those comments must have had some

kind of effect. The legitimacy...

Well, Senator Thurmond, I am not familiar with

the bill which the Senate has passed, but I am assuming that it

was probably in response...

Well, Senator Thurmond, for someone who has

never sat on the Supreme Court, there is great difficulty in answering

that question, because...

Well, Senator, there are certainly two respects in

which victims should be recognized in the system, and there is a

further interest of...

Well, Senator, as you know, the doctrine of stare

decisis which we speak of in that shorthanded kind of way is a

series of considerations...

I was going to say, I think you have made it very

clear that that is not what you had in mind, and I don't know

whether any other members...

My problem, Mr. Chairman, is I forget what the

question was.

Then the answer should have been yes. I said no?

Thank you for amending that.

If you are going to ask me for a statutory interpretation,

I would be as liberal as that, then you may have me in a

corner. But assuming...

Senator, I hope there is no judge in the Republic

who would not agree with that statement of Justice Powell. If

there is one thing that

YOU are going to turn me into a laconic Yankee,

if you keep doing that, Senator. [Laughter.]

Thank you, sir.

At the time that case was litigated, Senator, I did

not know whether it was consitutional or not. That case, as I think

you realize, was

There is no question that, under the law as it is

understood today and under the law as I understand it, that Congress

has a preferred and...

I came to no comprehensive personal view of section

5 at that time. The views that I came to grips with at that

time were these: The first,...

The question that I thought could be legitimately

raised at the time was whether, in fact, as against a governmental

entity which had not...

As you indicate, I think the 14th amendment is

about both.

I think, in fact, the answer to that is one which,

with respect, I would almost have to direct to my client. If you

were to ask me cold...

I think they were suspended, were they not, for 5

years by the 1970 amendments?

I was assistant attorney general at that time, and

my recollection is that I filed aposttrial memorandum with the

U.S. district court after...

Pardon me?

I was not trying to get you to read the names off,

Senator.

Well, with respect, Senator, let me address a

couple of points that you raise. Maybe the best place to start is

with the fundamental one....

That is correct.

Well, Senator, I think you have answered that

question. Where we were then, where the attorney general was and

where I was as an assistant...

No. That is not my position. My position which

was described in that, which was raised as an advocate in that

brief, went to a problem which...

No, I was just going to add, that has nothing to do

with the question of whether sex discrimination should receive

heightened scrutiny....

Well, I also talked about making the test more

clear and eliminating this kind of protean quantity to it.

Surely.

I do not think there is any question about it.

I appreciate your concerns.

Yes, sir?

Well, I suppose there has got to be. It seems to me

impossible to say that unless you are within those basically four

categories that get...

There has got to be something other than just

threshold level scrutiny.

The tough thing is in writing—I have been saying

and I will say it again—the tough thing is in finding—is in writing

a test that does not...

Senator, I would stipulate to that.

I was going to say I think he would be a great

Justice, too. I thought it was a question of him against me, and

under those circumstances....

Yes; it had. The use of a literacy test for a nondiscriminatory

purpose had been affirmed by the Supreme Court.

Yes. It was a requirement, and I don't think this

was the point of any question so far. But needless to say, no one

had authority to suspend...

I believe that is correct.

That is correct.

Yes, sir.

Yes; we were.

The only case, Senator, in which our responsibility

would have been different from the way we saw it would have

been a case in which the...

Yes. That was being litigated, and it was a final

determination on that, or at least on the issues that concerned us,

came with Oregon v....

Yes; it was.

Yes; they were at an injunction stage, and they

made that judgment.

Yes. My recollection is that after Oregon v. Mitchell

came down I believe there was a joint stipulation filed by the

State and Federal counsel,...

That is correct.

That is correct.

That is correct.

Thank you, Senator.

We did.

Thank you, Senator.

I could have been a very successful lawyer.

Thank you, Senator.

Yes, sir.

Yes.

Yes.

Yes.

Yes.

Anything that can come before a trial court of

general jurisdiction.

Yes, I have.

Well, do you want me to refer to the trial court

experience as well as appellate court?

Well, the process is one which helps to discipline

the mind as we go through it. I will leave aside the question of determining

whether...

Thank you, Senator.

No, I am fine. Thank you, sir. I was offered anything

I needed out back.

That is the third lesson I learned as a judge.

[Laughter.]

Thank you, Mr. Chairman.

If they were reading my opinions, they were.

Thank you, sir.

The answer is, no.

Well, far be it for me to say that a question from

you, Senator, is crazy. [Laughter.]

In a way, I think that answer might have been

impressive to some people if I had grown up in a place with racial

problems, and some people...

Yes, sir.

If I had to pick one thing—you have already mentioned

it—it would be that hospital board. It was like a second occupation

for me. I went...

I did some back in the time when I was in private

practice. Of course, I couldn't do that as a public lawyer.

That is why Senator Rudman and I have always

gotten along so well. I listen. [Laughter.]

Thank you, Senator.

I will take that under advisement, Senator.