In Search of the Constitution; 104; Justice Brennan

WILLIAM J. BRENNAN:The Bill of Rights, my God, to call them technicalities . They are the warp and woof of our whole system and every citizen ought to thank the good Lord every day that we have them. And to call the technicalities. That's silly.

BILL MOYERS:In the next hour, a visit with Supreme Court Justice William Brennan.

BILL MOYERS: I'm Bill Moyers. The Constitution of the United States says less about the Supreme Court than about the Presidency, the Congress or the legality of intoxicating liquors. But what the Supreme Court has said about this brief document has shaped our daily lives and choices more profoundly perhaps than any of our forty presidents. The justices of the Court must give shape to abstract notions like justice and general welfare. They decide what the Constitution means. One of them even said, The Supreme Court IS the constitution. In our time alone, the Court has put an end to segregated schools, made abortion legal and reminded the President of the United States that not even he is above the law. Some people think the Court has gone much too far, reading into the Constitution what isn't there. Others think the Court has saved democracy from bad politics . The man we'll visit in this hour has been at the center of this debate for a generation. He's the first justice born in the twentieth century and well into the twenty-first century we will be living with his legacy on this Court. His name is William Brennan.

BILL MOYERS: William J. Brennan, Jr. was 50 years old when President Eisenhower appointed him to the Supreme Court in 1956. Now, six presidents later, Brennan has served longer than any of his present colleagues. He has written close to 500 majority opinions, arguing time and time again that the ultimate protection of individual freedom is found in judicial enforcement of constitutional rights. In the early 1960's, Brennan's arguments turned the country's political map upside down and stood a traditional view of the Court 's role on its head, as well. The court, said Brennan, had been wrong not to take on voting district cases simply because they were political matters.

MALE VOICE : "And I will support the constitution of this state"

BILL MOYERS: These cases could be taken to federal court, he said, because they addressed fundamental questions of equality. And the Court could force voting districts to be changed to ensure one person, one vote. Brennan came to the defense of journalism in the celebrated libel case, New York Times v. Sullivan. He argued that in the interest of robust public debate, the first amendment protects the press from libel suits by public officials unless they can prove actual malice and reckless disregard for the truth. Brennan's opinions have reached deep into the classroom. When southern schools were dragging their feet on integration, he said their freedom of choice plans were unconstitutional and called on them to end discrimination now, root and branch. He has championed equality between men and women. He ruled that female Air Force officers have the same rights as males to claim their spouses as dependents . And that 18 year old males in Oklahoma have the same right as females to drink 3.2 beer. Gender, says Brennan, is no more acceptable as a basis for discrimination than race. When his arguments do not sway the Court's majority, William Brennan becomes a strong dissenter, hoping that one day his views will persuade the Court to change its mind. Although the Court's majority has ruled the death penalty constitutional, Brennan still considers it cruel and unusual punishment, an assault on the human dignity even of criminals . You won't find the word dignity in the Constitution, or the word privacy either. But Brennan says dignity and privacy are there, implicit in the system devised by the Founders to prevent an arbitrary state from violating the rights of the individual. Alone or with the majority, Brennan' s voice echoes deeply through our land and our law. He has been called America' s most unyielding defender of individual rights . He has been called other things too, although they shouldn't be repeated here, even with the constitutional guarantee of free speech. But whether condemned as an opinionated activist or celebrated as the champion of justice, he is a quiet symbol of the role in our lives of the Court and the Constitution.

BILL MOYERS: What went through your mind, Mr. Justice, back in the late SO's when you were making these decisions, you and your colleagues on the Court, and there was such a resentment and anger in the country? Did you take it personally?

WILLIAM J. BRENNAN: No. No, I do remember that my dear mother, with all of the furor that went on, said to me one day, 1 always so liked your opinions on the New Jersey Courts . Why can't you do it the same way? But no, you can't take these things personally. As a matter of fact, probably the most important responsibility the Court has is to see to it that individual rights, as provided in the Constitution, are enforced. And, indeed, that no matter what the majority may think, a minority has the right to come and insist that we discharge our responsibility to enforce the rights in favor of minorities, whatever the majority reaction may be .

BILL MOYERS: But I thought majority rules?

WILLIAM J. BRENNAN: Majority rules, except---you start out with the basic proposition that the Constitution is a restraint on the government. All of the provisions of the Bill of Rights are restraints upon government, on both state and federal, with some exceptions . And that's---and it's our responsibility to be sure that both the state governments and the federal government act only within those restraints.

BILL MOYERS: Does this mean that our rights are not absolute in the Constitution, that they depend upon what a majority of the Court at some moment says they are?

WILLIAM J. BRENNAN: I suppose, to the extent that, a given right in the Bill of Rights---let's take something like the Fourth Amendment.

BILL MOYERS: Which says?

WILLIAM J. BRENNAN: That a person's property shall not be---do you want me to read it?

BILL MOYERS:Yes. It's always good to have a copy of the Fourth Amendment around.

WILLIAM J. BRENNAN:Yes, it is, indeed. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause," and so forth. Now that's the Fourth Amendment. And now if the Amendment were limited to what those words connote to most of us, "persons, houses, papers and effects," the Amendment would not protect people against wiretapping because wiretapping is neither a person nor house nor paper nor effect. But the court interpreted this as really a restraint in order to protect the privacy of an individual, particularly in his house and to wiretap his house, his own home, would be certainly an intrusion by government upon his privacy.

BILL MOYERS: Do you feel this strongly because, as you said at Brandeis University, "We have given government more power over our lives than ever before"?

WILLIAM J. BRENNAN: Exactly. I certainly do. That's why we have to be wary of government.

BILL MOYERS: What power have we given?

WILLIAM J. BRENNAN:Oh my, we 're subject to all kinds of regulations, all sorts of regulations, that really---you 've just got to watch the exercise by governmental powers to see that they're not used to oppress, which was precisely why they set up the system of divided powers .

BILL MOYERS: What did you mean when you said that, with the miracles of science, we may have created a Frankenstein and this is a cause for concern over the First Amendment?

WILLIAM J. BRENNAN:Well, I'm thinking about some of the ways now that they can---the very conversation we're now having can be overheard. Science has done things that, as I understand it, that makes it possible through those drapes and through those windows to get something in here that takes down what we 're talking about. That's what I'm talking about.

BILL MOYERS: Do you think the constitution is going to be tested in new ways over the next---?

WILLIAM J. BRENNAN: Oh, of course it will, as it has been and---my heavens, I hope it will. That's what progress is, new ways. Surely we will and it'll have to be tested. And, thank God, the Constitution and the Bill of Rights have been up to the task for two hundred years. And will be for another two hundred.{MUSIC)

BILL MOYERS: We almost didn't get the Bill of Rights, did we? If it hadn't been for Madison and Patrick Henry and Thomas Jefferson holding the issue alive during the ratification process, in pressing that First Congress---

WILLIAM J. BRENNAN:They pressed it and discharged the promise that this would be done. And it was done.

BILL MOYERS: And we almost, we almost didn't get it. I remember that great speech of Richard Henry Lee, one of the famous patriots of that period, who attacked the Constitution without the Bill of Rights as a "coalition of monarchy men, military men, aristocrats and drones whose noise, impudence and zeal exceeds all belief."

WILLIAM J. BRENNAN: Well, I must say, the orators of those days were sometimes their rhetoric was rather excessive But not at all unsound.

BILL MOYERS: But the thing that surprised me about that speech is that after he made it, he got up and proposed a Bill of Rights be added to the Constitution and was shouted down.

WILLIAM J. BRENNAN: That was a very controversial question at the time. No doubt about it.

BILL MOYERS: And still today there are people who don't believe in these protections?

WILLIAM J. BRENNAN:In some of them, it's true. The privilege against self-incrimination, for example.

BILL MOYERS: Which reminds me that, when you were nominated by the president, you were confirmed unanimously by the United States Senate, with the exception of a loud voice, "Noa"---

WILLIAM J. BRENNAN: Yes.

BILL MOYERS: ---that came from---

WILLIAM J. BRENNAN: Senator Joseph McCarthy.

BILL MOYERS: Why did he oppose you?

WILLIAM J. BRENNAN: I think, primarily, because when I was a member of the New Jersey Supreme Court, I'd been invited and had accepted to speak at the St. Patrick's Day Dinner of the Irish Charitable Society in Boston. And the address I gave was critical of the tactics that he was employing at that time.

BILL MOYERS: You made some reference, if I remember, to a new "Salem witch-hunt."

WILLIAM J. BRENNAN:That's right. I did. There again, some of the rhetoric gets a little excessive. But, in any event, the day that it was announced that President Eisenhower was going to appoint me, he made a public statement that he was convinced that I was supremely unfit for the Supreme Court. And he sat with the Judiciary Committee and interrogated me for the whole o a day.

BILL MOYERS: He kept trying to get you to say whether or not you felt the Communist Party was a conspiracy or a political party.

WILLIAM J. BRENNAN: Something like that, yes.

BILL MOYERS: But you wouldn't because---

WILLIAM J. BRENNAN: No, I didn't know.

BILL MOYERS: He didn't agree with your support of the Fifth Amendment then.

WILLIAM J. BRENNAN: No, he didn't.

BILL MOYERS: Has the Fifth outlived its usefulness?

WILLIAM J. BRENNAN:On the contrary, if anything it's more essential than ever.

BILL MOYERS: Why?

WILLIAM J. BRENNAN: Government is getting to be more and more powerful, not less so, throughout---in our country. And the individual has tough enough a time as it is to9 withstand excesses of governmental power. And I think, myself, that the privilege has proved itself to be a safeguard for the individual against those excesses.

BILL MOYERS: Doesn't it also require the government to do more than simply rely on a half-baked investigation?

WILLIAM J. BRENNAN:They have to go to work and really prove their case beyond reasonable doubt.

BILL MOYERS: I think you quoted somewhere this British police officer who admitted his lot was nicer in India than at home because it is far pleasanter to sit comfortably in the shade rubbing red pepper in the poor devil's eyes than to go about in the sun hunting up evidence against him.

WILLIAM J. BRENNAN:I did. I did, indeed. And that's true, obviously so.

BILL MOYERS: we forget sometimes, don't we, how deeply are the roots of our own precedents . I mean, the Fifth Amendment grew out of that great Magna Carta. The Magna Carta of 1215. "No bailiff from henceforth shall put any man to his law upon his own bare saying without credible witnesses to prove it."

WILLIAM J. BRENNAN: That's the famous section 39. Actually, our Constitution owes much, of course, to the Magna Carta, particularly the Bill of Rights .

BILL MOYERS: Your late colleague, Justice Black, once said, "I'm a chauvinist. I think this is the greatest country in the world. I think it is the greatest country in the world because it has the Bill of Rights. Without the Bill of Rights, it could be one of the worst.

WILLIAM J. BRENNAN: I could subscribe to that. Without the Bill of Rights, and particularly without the Civil war Amendments, which gave us, in effect, as since interpreted, to extend the Bill of Rights against the states through the Fourteenth Amendment, really a brand new Constitution after the Civil War.

BILL MOYERS: So there's really two Constitutions . One a---

WILLIAM J. BRENNAN: Well

BILL MOYERS: ---strong charter for national government and the other a protection of the individual against that government.

WILLIAM J. BRENNAN: Well, except that even the strong charter was intended to be a protection of the individual against that government. But surely---

BILL MOYERS: Because of the assumption of the separation of powers so that---

WILLIAM J. BRENNAN: That's right. And that just simply wasn't enough. But they're all part and parcel of the same great charter of liberty, that's what they are.

BILL MOYERS: There's that terrible paradox of these men who shared that vision condoning, practicing, enshrining into the Constitution for so long slavery, which was a base violation of human dignity.

WILLIAM J. BRENNAN: It was, indeed. And it took the Civil War to repair it. But there it was. And what's unfortunate, of course, about it---I by no means believe that we have yet completed the job of eradicating race as a consideration in the lives of black people . And perhaps of others besides blacks these days, Hispanics and such. And it may take a long while before we get to the day when I can look at you and never see the color of your skin. But I'm convinced that, if there's any place in the world that has a chance of doing that, it's the United States of America.

BILL MOYERS: Mr. Justice, what do you think the Framers expected of you, William J. Brennan, Jr., sitting on that court?

WILLIAM J. BRENNAN: Well, when you say the Framers, one very prominent one, James Madison, it was he, you know, who said of, primarily the Bill of Rights but generally of the Constitution, that judges can be counted upon to see that they are enforced. This whole business, whether the judiciary steps in where it should not because more properly the particular activity ought to be one by either the executive or legislative or both, that simply won't hold water. Because one of the great things about our Constitution is that it's a document---of course, many of them specifics: you have to be 25 to be in the House, you have to be 30 to be in the Senate, you have to be 35 to be President. Obviously, courts can't ever change anything that---those specifics. But things like due process of law, cruel and unusual punishment, those are very broad principles about which in their application in a particular situation there's bound to be a difference of view. And there may be a difference of view between---the Congress might have one view, the Executive might have another view, somebody' s got to decide . And the contemplation of the Framers was that those disputes over the meaning and application of the Constitution ultimately would be decided by the Supreme Court. And they set about, of course, the Framers, to guarantee this by setting up an independent judiciary whose---the salary, thank goodness, can't be reduced, as you know, and---

BILL MOYERS: In punishment for a decision, they can't--- (MUSIC)

WILLIAM J. BRENNAN: And not only that, they can't punish us in any other way. We, in effect, have life tenure in the federal judiciary. It's "during good behavior," actually is the wording, but that's what it's come to mean, a life tenure . And the whole reason for setting it up that way was that they wanted a judiciary in which they could have confidence that judgments of the Constitution and its interpretation would be what they should be and finally decided, when there are conflicts over it, by the judges .

BILL MOYERS: Do you think they assumed that they were insulating you from the pressures of politics so that you could follow the light of reason? They were men of reason.

WILLIAM J. BRENNAN: Not only that were they insulating us from politics, but they were even more so insulating us from reprisals at the hand of a majority when we had to hand down decisions in favor of minorities or individuals which did not have majority approval.

BILL MOYERS: Do you think that the decisions of your Court are binding on all parties and all pieces of the government, national and state?

WILLIAM J. BRENNAN: They are, indeed. Well, actually, John Marshall, in Marbury v. Madison, said it first and said it best still.

BILL MOYERS: He said?

WILLIAM J. BRENNAN: That the constitution---in effect, what he said was, of course, it is the duty of this Court to say what the law of the Constitution is. they're infallible only because the Court is final. Therefore, if there is to be a correction in what a justice believes is an error, as for example, it's my view of the application of the cause prohibiting cruel and unusual punishments as applied to the death penalty. I continue, case after case after case, reiterating it. Now why do I? I do it for the reason I've said, that there is a point of view that I'm hopeful, indeed, feel some confidence, may someday prevail that the cruel and unusual punishment clause is a prohibition against their death penalty, as it's proved to be a death penalty that.

BILL MOYERS: There are still people who don't accept

WILLIAM J. BRENNAN:I know there are, I know there are, but I against a lot of other types of penalties, cropping ears and that sort of thing, which were practiced at the time the cruel and unusual punishment clause was adopted. It's the reason I do not think that the fact that the-- at the time of the adoption of the cruel and unusual most do and, I'm sure, will continue to. Otherwise, it'd be chaos.

BILL MOYERS: But it is confusing to the layman. You see a decision come down, it's five to four. Or you see a decision come down and Justice Brennan has penned to it a vigorous dissent. In effect, saying that's your decision but I'm not sure that's the law.

WILLIAM J. BRENNAN: Alright now, you have to appreciate that the business of dissents in the Supreme Court of the United States serve a purpose that they don't necessarily serve, certainly, in lower federal courts, if at all, or even in state courts. And that's this. That what we say is the way to read a provision of the Constitution today, the wisdom of a later day may show was wrong. That's happened in many, many instances. I know I've written opinions overruling an interpretation of the Constitution only two, three years ago. And, accordingly, as Justice Jackson said, the members of this Court are not final because they're infallible, punishment prohibition, the death penalty was common, that doesn't prove that the Framers intended that it should not someday fall within the prohibition. That's the position I have taken and I hope in time it prevails .

BILL MOYERS: Let's dwell right there a minute. A majority of the Court has ruled that the death penalty is constitutional . And you, as you just said, continue to dissent.

WILLIAM J. BRENNAN: Yes.

BILL MOYERS:But when I read the Fifth Amendment, which says that no person shall be deprived of life, liberty or property without due process of law I understand the Founders to be agreeing that the death penalty could be imposed with due process.

WILLIAM J. BRENNAN: What you overlook is that the Eighth Amendment has a prohibition against cruel and unusual15 "' punishment. And the due process provision is not the applicable provision for interpretation.

BILL MOYERS: But who decides that?

WILLIAM J. BRENNAN: Although I must say, there may not, b if any state were today to execute a man for cutting down a tree, I'm willing to wager you anything that the Court would not deny that that was a violation of the cruel and unusual punishment clause.

WILLIAM J. BRENNAN: We do. We do. But the day may come when there 'll be a Court that agrees that my approach is the better one.

BILL MOYERS: Can we say with certainty what punishments the Framers thought were cruel and unusual punishment?

WILLIAM J. BRENNAN: We certainly cannot, but we know that there were other punishments besides the death penalty.

BILL MOYERS: Their ears were cropped, they were whipped, they were scourged.

WILLIAM J. BRENNAN: That's right. There were lots of things like that that today everyone would agree---and, as a matter of fact, we have construed the cruel and unusual punishment clause as one particularly susceptible to the maturing views of society as we progress . It's not---it has no fixed meaning as of the time of its adoption in 1791.

BILL MOYERS: But what about---look within the generation after that, in 1814, while many of the Framers were still alive, there was a man hanged for cutting down a tree.

WILLIAM J. BRENNAN: That's right.

BILL MOYERS: There doesn't seem much to have surprised the Framers in that time about cruel and unusual.16 l 'I-11r

BILL MOYERS: Alright, I don't stand on equal ground with you, but Justice Black did. What about the argument of your former colleague, that the death penalty was in common use and authorized for prevailing law when the Constitution was written, adopted and ratified. So even if we do not know precisely what the Framers meant by the words, we do know with certainty that they did not regard capital punishment as impermissible.

WILLIAM J. BRENNAN: May I suggest to you that my dear, dear colleague and very close friend Hugo Black had a view on constitutional interpretation that has not prevailed. And I suggest that the more prevailing view is one that I share, that its broad principles have to be interpreted in the context of the day and of the problems of the time. And not in the context of what was the case in 1791. As a matter of fact, if I can find it---

BILL MOYERS: That's the trouble with talking with justices . They always come armed with precedents .

WILLIAM J. BRENNAN: No, no, no. There's was just one little---yeah. This is not a quote from me. It's a quote from Chief Justice Hughes . "If, by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the Framers, with the conditions and outlook of their time, would have placed upon them. The statement carries its own refutation.

It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning, "We must never forget that it is a Constitution we are expounding. We must realize that they have called into life a being, the development of which could not have been foreseen completely by the most gifted of its begetters. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago."

WILLIAM J. BRENNAN: Now that, I think, sums up better than I could my view about the interpretation. This is not a document frozen in time as of 1791. It's a great strength is that its great clauses are adaptable to the crises and problems of the day as the nation goes on.

BILL MOYERS: That I understand, sir. But what about that 1972 decision-- Furman, I think it was-- in which the court collectively, all nine of you, wrote over 230 pages-- 50,000 words. More than had ever been written about any case in the history, trying to define the meaning of four words-- cruel and unusual punishment. Now, doesn't that suggest the difficulty of coming to a definition of what the framers meant?

WILLIAM J. BRENNAN: Well, see, you keep talking about what the framers meant. And Justice Black took the position that the framers must have meant that the cruel and unusual punishment prohibition did not apply to the death penalty. And what I'm trying to suggest to you is that the fact that the death penalty was prevalent at the time that the cruel and unusual punishment prohibition was written does not mean that it's not within the band of the cruel and unusual punishment prohibition if in a later time, society comes around to a different view.

BILL MOYERS: Now, is it your reading of the Constitution or your own moral vision that you bring to the application of this question?

WILLIAM J. BRENNAN: No, I don't think so. If you take the-- accept my basic proposition that our whole constitutional structure and objective is the protection of the dignity of the human being, and the recognition that every individual has fundamental rights which government cannot deny him. If you'll accept that basic proposition, then the question has to be whether, in a given instance, a given practice, whether it may be death penalty or anything else, offends that basic premise.

BILL MOYERS: Even the vilest criminal still has a certain basic--

WILLIAM J. BRENNAN: Precisely, as a human being.

BILL MOYERS: All right, I can understand where that comes from out of a man as devout and religious as you have been. Where does it come from the Constitution though?

WILLIAM J. BRENNAN: It comes from--

BILL MOYERS: Where does this dignity come?

WILLIAM J. BRENNAN: Oh, that was the whole reason for the decision of the Framers in Philadelphia to set up a tripartite government, to diffuse power, in other words, to avoid concentrations of powers, to rely on the states for many of the protections of the individual. That's the basic underpinning and it's on the basis of that threshold that almost everything else follows when you're interpreting the Constitution.

BILL MOYERS: That they set up the separation of powers because they had such respect for the dignity of individuals that they didn't want to trample on those rights.

WILLIAM J. BRENNAN:Precisely.

BILL MOYERS: Somewhere in another speech or opinion you wrote, I read your opinion that the judge 's role is to seek out the community' s interpretation of the Constitutional law. How do you reconcile that, really magnanimous judgment, that we're trying to find the interpretation of the community, with the fact on the death penalty that so many states allow it, that the polls show eighty percent of the American people support it, and yet you're saying, I still believe it's wrong and I'm going to try to persuade people that it's wrong?

WILLIAM J. BRENNAN:Well, that's because I have the feeling that I've given you that it's contrary to the basic proposition that our greatest value is protection of the individual to further human dignity. And for the government to execute a man is for the government to deny him any dignity.

BILL MOYERS: Do you still believe, as you once said, I think last year, that electrocution is nothing less than the contemporary, technological equivalent of burning people at the stake?

WILLIAM J. BRENNAN: I did. I do, indeed. I said that in a dissent when the Chief Justice made the observation that burning at the stake, of course, we wouldn't tolerate under the---that's a very interesting concession, which I'm not sure how much burning at the stake was prevalent at the time of the adoption of the Bill of Rights in 1791, but some was. And to say that that differs from electrocution struck me as impossible to prove since the same responses physically to electrocution as there are, as described in the opinion that I filed. It's the same thing.

BILL MOYERS: You describe very graphically what happens in that dissent. Did you put this in for the benefit of your colleagues. The force of the electric current is so powerful that the prisoner's eyeballs sometimes pop out and rest on his cheeks. The prisoner often defecates, urinates and vomits blood and drool. Witnesses hear a loud and sustained sound, like bacon frying, and the sickly, sweet smell of burning flesh permeates the chambers .

WILLIAM J. BRENNAN: That's what I quoted.

BILL MOYERS: Why did you put that in?

WILLIAM J. BRENNAN: To prove to people that, in fact, to say that burning at the stake was wrong when electrocution was right, when they have the same consequences in terms of at least the pain suffered by the executed individual.

BILL MOYERS: Have you ever seen an execution?

WILLIAM J. BRENNAN: Never. No, never want to.

BILL MOYERS: What was it Camus said in Reflections On A Guillotine? "The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail."

WILLIAM J. BRENNAN: Yes.

BILL MOYERS: But I understand

WILLIAM J. BRENNAN: I think I cited Camus in one of them---

BILL MOYERS: You did, you did. But this gets us right to the issue of that boiling cauldron of controversy out there, Mr. Justice, over judicial activism. Because isn't it society that defines what is cruel and unusual? If people support it, and Congress enacts it, why should you, the court, contest it?

WILLIAM J. BRENNAN: For the reason I've suggested. If the Constitution says no matter what the people support, if it's unconstitutional, we have to say so.

BILL MOYERS: The Constitution doesn't give you a lot of guidance on these matters. I mean, such vague phrases as "unreasonable search," "equal protection of the laws," and "due process." Don't they invite the Supreme Court to put meaning into the Constitution, rather than to draw meaning from the Constitution?

WILLIAM J. BRENNAN: I don't think we consciously-- I'm quite sure we never consciously put something there that shouldn't be there. We find it in the Constitution or within the basic purpose of the given clause. If the framers thought the intentions of the lawmakers to be the first and the last word of interpreting it, would they have written the Constitution so brief, so general, and so ambiguous?

I think they deliberately did it as they did it. Brief, exactly as they did it. They just set up a framework of government and guarantees of rights. And to go back to what Madison said, you can count on the judges to enforce them.

BILL MOYERS: Why do you think they wanted to do that? Because they didn't have the answers for the next generation or the next generation?

WILLIAM J. BRENNAN: Because they were writing a document for the ages. They weren't writing in a document whose effectiveness would terminate within x number of years.

BILL MOYERS: And they knew that there would be people they would never meet, the Brennan's of this world--

WILLIAM J. BRENNAN: Of course.

BILL MOYERS: --who would be looking at their work and interpreting it.

WILLIAM J. BRENNAN: Don't forget, though. It's wrong to suggest that, I think, if I may say so-- it's really wrong to suggest that we just are off on a frolic on our own. Of course, we're constrained by the words of the Constitution. Of course we're constrained by history.

BILL MOYERS: And you do show some loyalty, I'm sure, to the language of the interpretation through the years, the precedent as we call it.

WILLIAM J. BRENNAN: Of course we do. We're on the coattails of-- in my case, the 90 justices who preceded me, plus the 12-odd or 20-odd, whatever the number is, who came on since I came here.

BILL MOYERS: How do you explain the clamor that's going on to quote, "Resurrect the original meaning of the constitutional as the only reliable guide for judgment?"

Well, I'm glad you use the word "resurrect," which implies that there's nothing new. This is a controversy that's gone on from our very beginnings. And all I can suggest to you is, if one's talking about the original intention of the framers, who are the framers?

Are they the-- whatever that small number of men-- who met in Philadelphia? They differed all over the lot as you know. But their Constitution-- they didn't make it a Constitution. It took ratification by nine states I think it was--

BILL MOYERS: There were a lot of debates there.

WILLIAM J. BRENNAN: --before it became a Constitution. Well, whose intentions? Are you going to rely on the ratification by the conventions that were convened in the several states, all of which differed all over the lot? Who are you going to count on?

And if you accept the view that seems to me the only sensible one, namely that they were writing, as I said, a document for the ages. That they knew that these clauses were going to have to be-- they knew at least this much, that the world was going to change. They couldn't foresee how it was going to change. They couldn't foresee wiretapping. They couldn't foresee automobiles. They couldn't see telephones, nuclear. They couldn't foresee all these things. But they sat down basic principles to govern a society, whatever it faced. And the only problem then was going to be whether the words they chose were adaptable to the current problems of today. And so far, the reason we have only-- I think it's 26, isn't it-- amendments, is that it's worked.

BILL MOYERS: And the debate is the court hasn't weighed it in many cases.

WILLIAM J. BRENNAN: No. Well, I don't accept that. The court has done the job it was created to do. But don't forget the cases that come here are brought here and the issues that are brought here, we can't go out and manufacture one, or beg somebody to come and present us --

BILL MOYERS: No, but your critics say when they get here, you often eat more of the pie than you should have.

WILLIAM J. BRENNAN: Let them.

BILL MOYERS: Now, you are, by all accounts, a devout man, the son of Irish Catholic immigrants. Yet, you decided many, many cases in which you had to pain religious folk. The right of abortion you decided for, against displaying that Christmas croche, against prayer in school, against sending public school teachers into parochial schools. Would your mother understand these decisions?

WILLIAM J. BRENNAN: Oh, that's a hard question to answer. I expect, being mother, if only I didn't get myself in a lot of headlines she'd probably think they were all right. You see, I took a constitutional oath to obey and to enforce the Constitution of the United States as best I could. I took that just as freely and sincerely as did every senator and every other office holder in the federal government. And obviously, therefore, when there is a conflict between a principle of my faith and the constitutional principle, I have to decide the case as the Constitution requires. That's the oath I took, and that's the oath I follow.

BILL MOYERS: Do you ever feel any anguish?

WILLIAM J. BRENNAN: Of course, you can't help but feel some anguish.

BILL MOYERS: On cases particularly like the abortion case? Not letting school teachers go over and teach in parochial schools? That had to have some--

WILLIAM J. BRENNAN: Well, those aren't the only situations in which one feels some tension and some anguish. But, I repeat, my oath is to enforce the Constitution as I see it should be. And that's what I attempt to do.

BILL MOYERS: You and I share certain things in common in our past. To be a Catholic was a capital crime in Virginia at one time. And Baptists were banned from Boston by the Puritans. One of my favorite figures from that period is Patrick Henry, who represented many Baptist preachers who had been thrown into jail in Virginia because they refused to get a license to preach from the official church. You ever stop to think about what role in your own feelings about church and state might have been played by what happened to your ancestors there in Ireland under an Anglican establishment?

WILLIAM J. BRENNAN: I wouldn't say that they were not some influence, because I did have ancestors who suffered, and suffered grievously, from prosecution for-- as Roman Catholics. So I won't say that that didn't. But I haven't been conscious of it. Other than, as that only supports, that the framers, when they set up the prohibition against establishment, had in mind that they, at all cost, wanted to avoid the kinds of religious differences that led to violence, bloodshed, and all the other things that happened.

BILL MOYERS: And we don't have a Beirut, in part, because of their foreseeing vision.

WILLIAM J. BRENNAN: First of all, they wanted to guarantee every human being a free choice of his own religion.

BILL MOYERS: To believe or not to believe.

WILLIAM J. BRENNAN: That's right. Exactly. And they prohibit the government from sticking its nose into how individuals should make that choice.

BILL MOYERS: Did you anticipate, to any extent, the thunder clap of outrage and shock that would greet the court's decision deciding that school prayers were unconstitutional?

WILLIAM J. BRENNAN: No. I didn't, frankly. I knew there was bound to be some reaction, particularly in certain sections of the country, and among some groups, some religious groups. So I knew something would not be that popular. But I didn't anticipate it was going to be quite as severe.

BILL MOYERS: I still have a copy of the prayer in that case. It said simply, "Almighty God, we acknowledge our dependence upon thee, and we beg that blessing upon us, our parents, our teachers, and our country." It sounded like a Boy Scout oath in a way, yet one Methodist Bishop down in Georgia, among others said, "It's like taking a star and stripe off the American flag."

WILLIAM J. BRENNAN: Yes. I know. Some of the reactions were very severe.

BILL MOYERS: Before you came on the court, if you don't think it's unfair to bring up a 32-year-old speech, you spoke to the Irish Charitable Society about the importance of religion in American life. And think you said, quote--

WILLIAM J. BRENNAN: I still feel it.

BILL MOYERS: "Whatever their religious belief, all Americans acknowledge with us the fitness of recognizing in important human affairs the super tending care and control of the great governor of the universe, and of acknowledging with Thanksgiving, his boundless favors."

WILLIAM J. BRENNAN: I still feel that way.

BILL MOYERS: Still do?

WILLIAM J. BRENNAN: Surely.

BILL MOYERS: If you still believe it, then why is it important not to allow nonsectarian prayer?

WILLIAM J. BRENNAN: They're not nonsectarian, that's the whole point. They're religious prayers. That's what we have held was that government can't impose a religious prayer upon schoolchildren.

BILL MOYERS: Because?

WILLIAM J. BRENNAN: Because it violates the obligation of government to stay out of religion's business.

BILL MOYERS: It's just simple, there's no embellishment to be found. You just really believe the Constitution says no?

WILLIAM J. BRENNAN: That's right, as to that one.

BILL MOYERS: But what do you say to the critics, Mr. Justice, who say you're inevitably or trespassing into the legislative sphere that when the Constitution's language and history provide little or no guidance on the subject, when it sits there like a Cheshire cat smiling without revealing its purpose, why not leave the lawmaking to the legislator?

WILLIAM J. BRENNAN: Well, the answer to that, of course, is the one I gave you earlier-- we don't ask for the cases. We do insist that the case, when it comes here, where to address the issues it presents and decide them must be-- if they're constitutional issues, it must be clear that they are constitutional issues as yet undecided that ought to be decided. If it's a properly presented federal question, we can't duck it. We have to address and decide it.

BILL MOYERS: You just can't say, that's not for us to decide. That's for the legislature to decide?

WILLIAM J. BRENNAN: We could, if we can find something in the-- that's the political question doctrine. Not political in the partisan political sense. But in the sense whether the Constitution itself has delegated a given responsibility to one of the other branches as, for example, in the Declaration of War. That's a responsibility delegated by the Constitution itself to the Congress. And it's something that is not judicially reviewable because the Constitution has said it shall be exclusively decided by the Congress.

Now, it's very often the case, of course, that the Congress may be dealing with a subject-- as for example in 1964, when the Civil Rights Act of 1964 were presented. And there was a case pending here on sit-ins. Whether or not prohibitions against sit-ins where you're running a segregated restaurant were unconstitutional. And so that people could be arrested and sent to jail for sitting in, however peaceably.

WILLIAM J. BRENNAN: We knew there was the Civil Rights Act of '64 pending. And so we purposely decided at that time not to address the constitutional issue till we saw what the Congress was going to do. That sort of thing happens. To that extent, if the Congress is already working on it, we may stay away from the question.

BILL MOYERS: It strikes me then that the court is deciding for itself what are the limits of the court's power.

WILLIAM J. BRENNAN: Oh, I don't agree with that. We're being prudential about the exercise of our power.

BILL MOYERS: The definition of prudence must be in the eyes of the beholder, because there's been such a generation of controversy around this court.

WILLIAM J. BRENNAN: Well, not a generation of it, there's been 200 years of it. But there always will be.

BILL MOYERS: But more pronounced now, don't you think?

WILLIAM J. BRENNAN: No.

BILL MOYERS: You don't.

WILLIAM J. BRENNAN: No. The controversy around the court today compared to the controversy around the court in the Nine Old Men days when President Roosevelt tried to increase the number to 15 justices. You think there's anything that's happened since that's comparable to the controversy at that time? Of course not.

BILL MOYERS: What you're saying is that when conservatives are out of power, they want the courts to decide original intent because they don't like the decision it's making. And when the liberals are out of power, they don't want the court--

WILLIAM J. BRENNAN: That's right.

BILL MOYERS: They want the court deciding original intent for the same reason. Each side wants the court--

WILLIAM J. BRENNAN: A wonderful thing about this nation, I think one of the reasons we are so great and will continue to be, is that we go left for a while, and then we come back to the middle and we go right for a while. Then we come back to the middle. And ultimately, we get a fair balance. One of the interesting developments today among the state courts is how many of them now are turning to their state constitutions rather than the federal Constitution to decide questions of individual rights claims and claims of deprivation of liberties.

BILL MOYERS: Why is that happening? I mean, 100 years ago the state courts were upholding the state against the individual.

WILLIAM J. BRENNAN: Well, that's precisely it. But now, they've all enacted constitutions which have the counterparts of the Bill of Rights-- every one of them.

BILL MOYERS: What's likely to be the consequence of that? Can you have someone in--

WILLIAM J. BRENNAN: I think it's the most significant development of constitutional jurisprudence of the day. And what I have always thought is, not always is that a welcome activity of state court, but it simply adds another protection-- giving broader protections in many instances than do the federal Bill of Rights provide.

BILL MOYERS: And why is that happening?

WILLIAM J. BRENNAN: In part I think it's happening because of a feeling that this court is reducing the protections of some of the Bill of Rights.

BILL MOYERS: The present court?

WILLIAM J. BRENNAN: The present court.

BILL MOYERS: Backing away from the 14th Amendment?

WILLIAM J. BRENNAN: That's right.

BILL MOYERS: What worries you right now? You made some reference--

WILLIAM J. BRENNAN: The restrictions are the Fourth Amendment bother me.

BILL MOYERS: Which are?

WILLIAM J. BRENNAN: Well, the notion that, ordinarily, you can't get a warrant, a search warrant without probable cause. But suppose a magistrate gives you one without probable cause, and you execute the search warrant. It used to be, well, that in that circumstance, it was still a violation of the Fourth Amendment. And applying the exclusionary rule, the seized property couldn't be introduced in evidence.

Now the courts can grant an exception on that. If the police act on a search warrant in the good faith belief that the warrant is a valid warrant, and then the search is treated as no violation of the Fourth Amendment. I think that's standing the Fourth Amendment on its head.

BILL MOYERS: There's such a sentiment in the country out there that the criminal gets off on technicalities.

WILLIAM J. BRENNAN: Oh my, that's a lot of nonsense. The Bill of Rights-- my god, to call them technicalities. They are the wallop and woof of our whole system. And every citizen ought to thank the Good Lord every day that we have them. To call them technicalities, that's silly.

BILL MOYERS: Isn't it ultimately their Constitution. And if they feel this way, if they are concerned about crime-

WILLIAM J. BRENNAN: Then what they ought to do is amend the Constitution to eliminate it. But while they're there, they have to respect them. If they don't, at least we do. That's our responsibility not only to respect them, but to enforce them.

BILL MOYERS: Do you remember that anecdote of the time that Judge Learned Hand left a party with Justice Holmes I think it was. And he said to him, do justice. And Justice Holmes replied, I'm not here to do justice. I'm here to play the game according to the rules.

WILLIAM J. BRENNAN: That's right. I do remember that.

BILL MOYERS: What's your response to that?

WILLIAM J. BRENNAN: Well, I think playing it according to the rules is to do justice. And the rules are the constitutional rules.

BILL MOYERS: You really cherish that little document--

WILLIAM J. BRENNAN: I certainly do. It's the greatest document of liberty that's ever been fashioned.

BILL MOYERS: Is there one clause in it more than others that signi--

WILLIAM J. BRENNAN: No, every one of them is holy for me.

BILL MOYERS: Holy? What makes them holy?

WILLIAM J. BRENNAN: Sacrosanct. Because of what the society it's given us.

BILL MOYERS: A society?

WILLIAM J. BRENNAN: Oh, a society of decency, opportunity. We still have a great many faults, but there can't be any place on earth comparable to the United States. And all because of that document.

BILL MOYERS: Supreme Court Justice William Brennan in search of the Constitution. I'm Bill Moyers.