simple as it is, is that whatever court we are in, whatever we are doing, whether we are on a trial court or an appellate court, at the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do, whether we do it as trial judges or whether we do it as appellate judges, as far removed from the trial arena as it is possible to be. The second lesson that I learned in that time is that if, indeed, we are going to be trial judges, whose rulings will affect the lives of other people and who are going to change their lives by what we do, we had better use every power of our minds and our hearts and our beings to get those rulings right.

I am conscious of those two lessons, as I have been for all of the years that I was on an appellate course. I am conscious of them as I sit here today, suddenly finding myself the nominee of the President of the United States to undertake the greatest responsibility that any judge in our Republic can undertake: The responsibility to join with eight other people, to make the promises of the Constitution a reality for our time, and to preserve that Constitution for the generations that will follow us after we are gone from here.

I am mindful of those two lessons when I tell you this: That if you believe and the Senate of the United States believes that it is right to confirm my nomination, then I will accept those responsibilities as obligations to all of the people in the United States whose lives will be affected by my stewardship of the Constitution. Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much, Judge, for a statement that gives us all more insight into you. When I ended my opening statement, I said "maybe a little glimpse into your heart," I think you have given us a little glimpse into your heart as well as how you view the responsibility you hope to undertake.

Judge, before I begin my questioning, I want to make it clear to you that under precedence-we can debate and argue, which we will up here, about how long they have existed-but under precedence dating back, as one of my colleagues said, at least to the 1950's, and arguably much earlier, each member of the committee can decide whatever questions he deems proper to ask you. We have never imposed a gag rule on any committee member.

But, Judge, while we may ask any questions we deem proper, you are free to refuse to answer any questions you deem to be improper. No one is going to try to force you to answer any question you think in good conscience you cannot appropriately address. So, Judge Souter, I trust you are fully capable of deciding for yourself which questions you can and cannot speak to. And we or an individual Senator may not agree with your decision, but that decision is yours and will be protected.

Everyone involved in the process, both the members of this committee and you, I think have to be guided by the most considered interpretation of our respective constitutional responsibilities. And I know from my first discussion with you weeks ago that that was a judgment, as I think you have said, to paraphrase you, when the photographs had left my office, and I said "How are you? What are you looking forward to?" And you said something to the effect: Going home to New Hampshire to think about how you can appro

priately reveal to us and the Nation your constitutional philosophy within the limitations you think you are bound by.

So to clear it up, to state it again, any member can ask anything. You don't have to answer if you think it is inconsistent with what your responsibilities are.

Judge SOUTER. I appreciate that. Thank you.

The CHAIRMAN. Now, Judge, let me begin. You said in your statement, you used the phrase "the promises of our Constitution." That is the phrase you used, and that is really what I want to discuss with you—the promises of our Constitution. What does it promise? Because there are very, very different views held by very bright women and men, all experts in the law, many incredibly well informed, who have very different visions of what the promises of our Constitution are.

Judge, it comes as no surprise to you, as I discussed with you a little bit yesterday, there is nothing intended that I am about to ask you that is designed as a surprise, so much to the extent that I think you were probably surprised yesterday when I told you what I was going to ask you.

Judge SOUTER. I was a little bit.

The CHAIRMAN. And it will not surprise any of the press I see out there because it is something I care deeply about, and they are probably tired of hearing me talk about it, but I am going to continue to talk about it. And as, Judge Souter, a close friend of yours, and I consider him, quite frankly, a close friend of mine, my colleague Warren Rudman, has said he has said many things, but he has said that Supreme Court

Judge SOUTER. You should have been staying with him for the last 10 days. [Laughter.]

The CHAIRMAN. No, we each have our own jobs. That is your job, not my job.

Judge SOUTER. I realize that.

Senator HATCH. We live with him every day, let me tell you. [Laughter.]

The CHAIRMAN. But he has indicated that one of the Supreme Court Justices you most admire was the second Justice Harlan, who served on the Supreme Court between 1955 and 1971, and who was widely regarded, is widely regarded as one of the great conservative Justices ever to serve on the Court.

Now, Justice Harlan concurred in the Court's landmark decision of Griswold. That is the Connecticut case that said that the State of Connecticut, the legislature and the Governor couldn't pass a law that constitutionally-said that married couples could not use birth control devices to determine whether or not they wished to procreate.

Justice Harlan indicated that that Connecticut law violated the due process clause of the 14th amendment which says that no State can deprive any person of life, liberty, or property without process of law.

Now, my question is this, Judge: Do you agree with Justice Harlan's opinion in Griswold that the due process clause of the 14th amendment protects a right of a married couple to use birth control to decide whether or not to have a child?

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Judge SOUTER. I believe that the due process clause of the 14th amendment does recognize and does protect an unenumerated right of privacy. The

The CHAIRMAN. And that—please continue. I didn't mean to interrupt. I like what you are saying.

Judge SOUTER. 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 ever write an opinion the same way, even if they share the same principles. And I would not go so far as to say every word in Justice Harlan's opinion is something that I would adopt. And I think for reasons that we all appreciate, I would not think that it was appropriate to express a specific opinion on the exact result in Griswold, for the simple reason that as clearly as I will try to describe my views on the right of privacy, we know that the reasoning of the Court in Griswold, including opinions beyond those of Justice Harlan, are taken as obviously a predicate toward the one case which has been on everyone's mind and on everyone's lips since the moment of my nomination-Roe v. Wade, upon which the wisdom or the appropriate future of which it would be inappropriate for me to comment.

But I understand from your question, and I think it is unmistakable, that what you were concerned about is the principal basis for deriving a right of privacy, and specifically the kind of reasoning that I would go through to do so. And in response to that question, yes, I would group myself in Justice Harlan's category.

The CHAIRMAN. Well, Judge, let me make it clear, I am not asking you about how you would decide or what you even think about Roe v. Wade.

Judge SOUTER. I understand that.

The CHAIRMAN. Now, in the Griswold case, I am curious what proposition you think it stands for. Do you believe it is a case in a long line of cases, establishing an unenumerated right to privacy, a right the Constitution protects, even though it is not specifically mentioned in the document?

Judge SOUTER. 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 approach that Justice Harlan took, it is a case which to me represents at least the beginnings of the modern effort to try to articulate an enforceable doctrine.

My own personal approach to that derivation begins with, I suppose, the most elementary propositions about constitutional government, but I do not know of any other way to begin. I am mindful not only of the national Constitution of 1787, but of the history of State constitution-making in that same decade.

If there is one generalization that we can clearly make, it is the generalization about the intended limitation on the scope of governmental power. When we think of the example of the national Constitution, I think truly we are at the point in our history when every schoolchild does know that the reason there was no Bill of Rights attached to the draft submitted to the States in the first instance after the convention recessed, was the view that the limitations on the power to be given to the National Government was so clearly circumscribed, that no one really needed to worry about the possible power of the National Government to invade what we

today group under the canon of civil liberties, and we know the history of that response.

We know that there were States like my own which were willing to ratify, but were willing to ratify only on the basis of requesting that the first order of business of the new Congress would be to propose a Bill of Rights in New Hampshire, like other States, who was not bashful about saying would not be in it.

The CHAIRMAN. Did you wish to continue?

Judge SOUTER. 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 original States, but I do know something about my own.

One of the remarkable things about the New Hampshire Constitution, which began its life at the beginning of that same decade, is the fact that it began with an extraordinarily jealous regard for civil rights, for human rights. The New Hampshire Constitution did not simply jump in and establish a form of government. They did not get to the form of government until they had gotten to the Bill of Rights first.

They couched that Bill of Rights with an extraordinary breadth and a breadth which, for people concerned with principles of interpretation, requires great care in the reading. But the New Hampshire constitutionalists of 1780 and 1784 were equally concerned to protect a concept of liberty, so-called, which they did not more precisely define.

So, it seems to me that the starting point for anyone who reads the Constitution seriously is that there is a concept of limited governmental power which is not simply to be identified with the enumeration of those specific rights or specifically defined rights that were later embodied in the bill.

If there were any further evidence needed for this, of course, we can start with the ninth amendment. I realize how the ninth amendment has bedeviled scholars, and I wish I had something novel to contribute to the jurisprudence on it this afternoon, which I do not.

The CHAIRMAN. It is novel that you acknowledge it, based on our past hearings in this committee. [Laughter.]

One of the last nominees said it was nothing but a waterblot on the Constitution, which I found fascinating. At any rate, go ahead. Judge SOUTER. 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 amendment as simply being the protection or the preservation of the State bills of rights which preceded it. Neither, quite frankly, do I find a basis for doubting that, with respect to the national bill of rights, it was something other than what it purported to be, and that was an acknowledgment that the enumeration was not intended to be in some sense exhaustive and in derogation of other rights retained.

The CHAIRMAN. Is that the school to which you would count yourself a graduate?

Judge SOUTER. 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 a basis for doubting that somewhat obvious and straightforward meaning of the text.

The CHAIRMAN. Let me ask you another question here, and I realize this is somewhat pedantic, but it is important for me to understand the foundation from which you build here.

You have made several references appropriately to the Bill of Rights and the Federal Government. Do you have any disagreement with the incorporation doctrine that was adopted some 70 years ago applying the Bill of Rights to the States? Do you have any argument with that proposition?

Judge SOUTER. No; my argument with the incorporation doctrine would be with the proposition that that was meant to exhaust the meaning of enforceable liberty. That, in point of fact, as you know, I mean that was Justice Harlan's concern.

The next really-I mean that brings to the fore sort of the next chapter in American constitutional history that bears on what we are talking about, because one cannot talk about the privacy doctrine today, without talking about the 14th amendment.

The CHAIRMAN. Judge, I am truly interested in us going back through in an orderly fashion the evolution of constitutional doctrine, but as my colleague sitting behind you will tell you, I only have a half hour to talk to you and I want to ask you a few more specific questions, if I may.

The 14th amendment, as you know, was designed explicitly to apply to the States. Speaking to the liberty clause of the 14th amendment, Justice Harlan said:

The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,

Which is totally consistent with what you have been saying thus far.

Judge SOUTER. Yes.

The CHAIRMAN. Now, do you agree with Justice Harlan that the reference to liberty in the 5th and 14th amendments provide a basis for certain-not all, but certain-unenumerated rights, rights that the Constitution protects, even though they are not specifically enumerated within the Constitution?

Judge SOUTER. 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 sterile, I think, to go into this particular chapter of constitutional history now, but you will recall that Justice Black was a champion at one point of the view that the real point of the fourth amendment, which was intended to apply unenumerated substantive rights, was the privileges of immunities clause, and not due process. Well, as a practical matter, that was read out of the possibility of American constitutionalism, at least for its time, and it has remained so by the slaughterhouse cases.

What is left, for those who were concerned to enforce the unenumerated concepts of liberty was the liberty clause and due process, and by a parity of reasoning by the search for coherence in constitutional doctrine, we would look to the same place and the same analysis in the fifth amendment when we are talking about the National Government.

The CHAIRMAN. Now, let us follow on. We recognize, you recognize, you have stated that Griswold and the various means of rea