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Anthony Kennedy · The David Rubenstein Show

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  Speaker 1: Anthony Kennedy's decision to retire from the Supreme Court was
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  Speaker 1: overshadowed by the intense confirmation battle that surrounded his eventual successor,
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  Speaker 1: Brett Kavanaugh, but it's important to remember Kennedy's contributions to
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  Speaker 1: the Court as an associate Justice since in nearly three
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  Speaker 1: decades on the Court, Kennedy provided the swing vote in
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  Speaker 1: a variety of cases, siding with the liberal wing of
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  Speaker 1: the Court on gay rights and abortion rights, while aligning
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  Speaker 1: himself with conservatives in the Citizens United case in two
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  Speaker 1: and joining the majority in handing George W. Bush a
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  Speaker 1: presidential victory in the two thousand election. Kennedy recently sat
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  Speaker 1: down with Carlisle Group co founder David Rubinstein for an
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  Speaker 1: interview recorded at the University of Virginia Law School. They
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  Speaker 1: spoke on David Rubinstein's Bloomberg television program Peer to Peer Conversations.
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  Speaker 1: Let's talk about some of the opinions that you're very
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  Speaker 1: well known for, uh somewhere five or four somewhere not um,
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  Speaker 1: But let me talk about, for example, on gay lesbian rights. UM,
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  Speaker 1: you are been a strong advocate that everybody should be
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  Speaker 1: treated equally and that there should be no discrimination and
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  Speaker 1: in fact, you authored the opinion that allowed gay marriage
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  Speaker 1: to occur. Is that something that surprised your conservative let's say, supporters,
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  Speaker 1: And this is something you're very proud of having written
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  Speaker 1: that opinion. In a sense, it surprised me. What surprised
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  Speaker 1: you the the the reaction or not your decision. Well,
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  Speaker 1: you know, because my religious beliefs these are That's one
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  Speaker 1: of the reasons I wrote it. It. It seemed to
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  Speaker 1: me that I couldn't hide and the nature of injustice
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  Speaker 1: as you can't see it in your own time. And uh,
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  Speaker 1: as we thought about this, and I thought about it
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  Speaker 1: more and more, it seemed to me that just wrong
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  Speaker 1: under the Constitution to say that over a hundred thousand
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  Speaker 1: adopted children of gay parents could not have their parents
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  Speaker 1: mary did. I just thought that this was this was wrong.
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  Speaker 1: But it took and I struggled with it and wrote
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  Speaker 1: the case over a weekend, and that's the way I
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  Speaker 1: came out. But as I say, you, you, you, as
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  Speaker 1: you write the reasons either compel themselves or not. I
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  Speaker 1: tell judges, I tell young judges, old judges, your duty
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  Speaker 1: in every case is to ask why are you doing
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  Speaker 1: what you're about to do? What are the reasons, and
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  Speaker 1: even if you've done it a hundred times, you have
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  Speaker 1: to ask what those reasons are again and see if
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  Speaker 1: they are still valid. That's what you must do is introspectively.
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  Speaker 1: You take an oath that you're going to listen to
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  Speaker 1: each side, and if you make up your mind in advance,
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  Speaker 1: you're not following that. So Um and abortion rights, many
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  Speaker 1: people who were your supporters, generally of your judicial philosophy
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  Speaker 1: were disappointed. I think it's fair to say that you
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  Speaker 1: were not in favor of overturning Roe v. Wade. In fact,
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  Speaker 1: while you may have narrowed it to some extent, you
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  Speaker 1: never voted to overturn it. Um. What was your thinking
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  Speaker 1: on that particular area. Well, our thinking is the set
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  Speaker 1: forth in the opinions. We give reasons for what we do.
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  Speaker 1: We don't go around later explaining it is. It's in
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  Speaker 1: the opinion, and we hope, we hope that the opinion
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  Speaker 1: is convincing. Now, one of your famous five to four
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  Speaker 1: decisions is Citizens United, which you upheld the right of
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  Speaker 1: corporations to basically make political contributions. Any second thoughts about
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  Speaker 1: that decision, ever, I again, the decision stands to answer
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  Speaker 1: our stuffs. Of course, all of us are concerned with
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  Speaker 1: money in politics. The government of the United States in
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  Speaker 1: that case argued before the Supreme Court, we're in the
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  Speaker 1: court and the podium is down there. The attorney for
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  Speaker 1: the Government of the United States argued that, uh, and
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  Speaker 1: if there was an upcoming political campaign, I forget that. Uh,
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  Speaker 1: maybe six weeks h and a book was being published
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  Speaker 1: or a movie being produced and it was critical of
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  Speaker 1: a candidate, that you could stop publication. It was unbelievable. Uh,
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  Speaker 1: this is the first amendment right now. It's true that
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  Speaker 1: there's a problem of money in politics, but I think
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  Speaker 1: we just have to address it some other way. And
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  Speaker 1: notice that the press was exempt, so the major newspapers
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  Speaker 1: could print what they want, but you couldn't have a
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  Speaker 1: book or a movie the other ways. It's now The
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  Speaker 1: result was, as you know, uh, that money flows into
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  Speaker 1: these campaigns, and it seems to me we have to
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  Speaker 1: think about it, but that the voters are the ones
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  Speaker 1: that if they see money coming in from the campaign
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  Speaker 1: for wrong source, that they should be disclosure and they
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  Speaker 1: can vote against the candidate if they don't like it.
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  Speaker 1: So when you were in the court the last number
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  Speaker 1: of years, after Justice O'Connor retired. You were basically seeing
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  Speaker 1: rightly or wrongly as the swing vote with that put
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  Speaker 1: undue pressure on you and making decisions because you were
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  Speaker 1: the Prince will be the person who could make the
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  Speaker 1: court go one way or the other. Well, I think
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  Speaker 1: every one of the justices feels pressure in every in
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  Speaker 1: every case, Yes, it was. It was a little bit
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  Speaker 1: a little bit harder and swing vote. I said, Uh,
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  Speaker 1: the swing vote has this um uh symbolism uh of
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  Speaker 1: of this swinging back and forth in space, And I
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  Speaker 1: say the cases swing I don't. I'm consisted about. Now
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  Speaker 1: you carry the Constitution with you everywhere you go, is
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  Speaker 1: that right? Yeah? I have it in your view. Um,
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  Speaker 1: when you carry the Constitution obviously know it very well.
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  Speaker 1: What do you think about the theory that you should
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  Speaker 1: look at the intent of the drafters of the Constitution
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  Speaker 1: about what you should decide in a case this This
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  Speaker 1: is one of the hardest questions in constitutional law and
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  Speaker 1: that we have to to wrestle with. Look at that
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  Speaker 1: this is a written document that the framers wanted handed down.
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  Speaker 1: You can't just ignore what the words are. On the
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  Speaker 1: other hand, I don't think Jefferson, you're a great Jeffersonian scholar.
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  Speaker 1: UH and and and and and Medisine spent a lot
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  Speaker 1: of time writing dictionaries, and they use spacious language. Life, liberty, property.
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  Speaker 1: If they had known all its specifics of a jet society,
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  Speaker 1: they would have written down. They didn't do that in it.
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  Speaker 1: And these words have to have meaning over time, UM
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  Speaker 1: and Jefferson. Uh. People sometimes give me declaration of independent
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  Speaker 1: is life, liberty, pursuit of happiness. That's declaration of independent life,
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  Speaker 1: liberty property is what Madison put in the fifth Modment UH.
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  Speaker 1: And it's also in the fourteen UM. And happiness was
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  Speaker 1: was interesting U. Happiness of the Greek board is you
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  Speaker 1: delia And they even in the Greek times there they
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  Speaker 1: had two meanings UH. And one was happiness that you're
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  Speaker 1: have material possessions. The other is you're happy because you
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  Speaker 1: have contributed to civic life and this enhances your own dignity.
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  Speaker 1: And Jefferson used it in this second sense. The happiness
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  Speaker 1: UH was to give to your community and the result
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  Speaker 1: was enriching to you. You've shoved in the corp for
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  Speaker 1: thirty years, You've written enormous number of opinions. You're quite
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  Speaker 1: respected throughout the legal committee. But what would you like
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  Speaker 1: your legacy to be? I hope that people would look
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  Speaker 1: at the court and realize that not only is it possible,
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  Speaker 1: but necessary for a democracy to have a civil, rational, thoughtful,
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  Speaker 1: decent discussion so that we can plan our own destiny. Um.
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  Speaker 1: We are are in time with an uncivil disco. Aristotle,
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  Speaker 1: UM and Plato both gave a low grade to democracy. Um.
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  Speaker 1: And I went back to two summers ago and read um. Uh.
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  Speaker 1: We read Plato and Aristotle is that a common thing?
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  Speaker 1: That justice is due? Going back and reading Plato and
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  Speaker 1: I I wanted to do it because I was concerned.
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  Speaker 1: And my interpretation was that Aristotle thought democracy should be
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  Speaker 1: given in a low grade because it did not have
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  Speaker 1: the capacity to mature. And our duty, our destiny, is
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  Speaker 1: to prove him wrong. Look at the rest of the
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  Speaker 1: world is looking at us to see what democracy means,
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  Speaker 1: what freedom means. And Uh, they see this hostile, fractious discourse,
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  Speaker 1: and we're not making the case for democrac At the end, David,
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  Speaker 1: of the last century, the last quarter, last twenty five
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  Speaker 1: years of the last century was the birth of democracy.
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  Speaker 1: Democracy has come in all over the world. Um. The
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  Speaker 1: first part of this century, we're seeing the death of democracies,
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  Speaker 1: and in part is because of the example that we're
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  Speaker 1: not setting. Aristotle. Um said that in a civil discussion, UH,
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  Speaker 1: there has to be UH respect, moderation, thought, and he
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  Speaker 1: said the participants and UH discussion in the democratic society,
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  Speaker 1: UM must have NIA, which means kindness and respect. I
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  Speaker 1: disagree with you and proposition X, but I respect you
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  Speaker 1: immensely and we must restore that to our public discourse.
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  Speaker 1: What would you like the American people to most know
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  Speaker 1: about the United States Supreme Court? That it is dedicated
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  Speaker 1: to finding what the law is, and the law has
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  Speaker 1: a moral foundation. The is interested in truth. Truth is
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  Speaker 1: often the facts. Was the light red? Was the light green?
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  Speaker 1: And you begin there And this isn't the partisan exercise.
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  Speaker 1: We want to show that facts count and that facts
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  Speaker 1: are found in a thoughtful, rational, respectful way. And after
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  Speaker 1: that we know what principles have to come from the facts.
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  Speaker 1: And those principles are are the principles of the Constitution
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  Speaker 1: and the principles of freedom or heritage. The work of
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  Speaker 1: freedom is never done