Judge Dennis Davis
Judge Dennis Davis Interviews David Cole on the American Constitution
Summary
Judge Dennis Davis and David Cole discuss the American Constitution and why it is misunderstood by so many.
Judge Dennis Davis
Dennis Davis is a judge of the High Court of South Africa and judge president of the Competition Appeals Court of South Africa. He has held professorial appointments at the University of Cape Town and University of the Witwatersrand, as well as numerous visiting appointments at Cambridge, Harvard, New York University, and others. He has authored eleven books, including Lawfare: Judging Politics in South Africa.
David Cole
David Cole is the National Legal Director of the ACLU, and the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center. He writes regularly for the New York Review of Books and is legal affairs correspondent for The Nation. He has published many books, including No Equal Justice: Race and Class in the American Criminal Justice System, and Engines of Liberty: How Citizen Movements Succeed.
David has litigated many constitutional cases in the Supreme Court, including Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flag burning; Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the ACLU represented a gay couple refused service by a bakery because they sought a cake to celebrate their wedding; Bostock v. Clayton County, which established that Title VII bans discrimination on the basis of transgender status and sexual orientation; and Mahanoy Area Sch. Dist. v. B.L. which extended First Amendment protection from school discipline to student online, off-campus speech.
Well, yes and no. No, if you’re born here. If you’re born here, we have citizenship by birth and you could never learn a thing about the Constitution and you would be a citizen, and you could reject every single provision of the Constitution, and you would still have a right to be a citizen. However, to be naturalized, that is people who come and immigrate to the country and then seek to become a citizen, they do have to take a test in which they show that they understand the Constitution. It’s not terribly demanding. It’s like a driver’s license test, more than anything else. But there is a requirement that you do demonstrate that you understand the basic principles of our Constitution.
So one view of privacy is that it is an unenumerated right. There’s a provision in the Constitution. The Ninth Amendment to the Constitution says that all rights, not otherwise specified here, are reserved to the people. What does that mean, right? What the heck does that mean? So some people said that meant that they were humble. They felt like, well, we may not be getting all the rights in our list here, so we want to leave it open, we want to leave it open for unenumerated rights to be developed. And there are people who may take the Ninth Amendment as the predicate for the ability of courts to recognize rights that are not explicitly set forth in the Constitution. But that was one justice’s view of actually the right to contraception. But I think the right to abortion is more fundamentally founded on the provision of the Constitution that prohibits the government from denying people their liberty without due process of law. And that requires you to define liberty. And as I said earlier, liberty has been defined over time to include fundamental personal decisions that ought to be left to people, not given to legislatures. Like decisions about your family, your body, your health, when you have kids, who you have sex with, who you marry, all those sorts of things.