soning to arrive at the conclusion that there was a constitutionally protected right of a married couple to determine whether or not to procreate, to use birth control or not, is a constitutionally sound decision.

Now, shortly thereafter there was a similar case in Massachusetts, although in this case it did not apply to married couples, there was a Massachusetts statute, in the Eisenstadt case, that said unmarried couples, and the rationale was that there is reason to not be out there allowing unmarried couples to buy birth control, because it would encourage sexual promiscuity, and the Supreme Court struck that down, as well, saying that it violated a right to privacy, having found once again, most Justices ruled that way, in the 14th amendment.

Now, do you agree that that decision was rightly decided?

Judge SOUTER. Well, my recollection-and I did not reread Eisenstadt before coming in here, so I hope my recollection is not faulty, but my recollection is that Eisenstadt represented a different approach, because the reliance on the Court there was on equal protection. I know that my recollection is-

The CHAIRMAN. Yes, the-

Judge SOUTER. I am sorry.

The CHAIRMAN. Go ahead. I am sorry.

Judge SOUTER. My recollection is that the criticism of Eisenstadt at the time was whether the Supreme Court was, in fact, reaching rather far to make the equal protection argument. But I think there is one point that is undeniable, without specifically affirming or denying the wisdom of Eisenstadt, and that is there is going to be an equal protection implication from whatever bedrock start privacy is derived under the concept of due process, and I think that then leads us back to the essentially difficult point of interpretation, and that is how do you go through the interpretive process to find that content which is legitimate as a concept of due process. The CHAIRMAN. Also, to what extent you find it legitimate. Is it a fundamental right, or is it an ordinary right? In the case of Griswold, in the Griswold case, it was discerned and decided that there was a fundamental right to privacy relating to the right of married couples to use contraceptive devices. Do you believe they were correct in that judgment, that there is a fundamental right?

Judge SOUTER. 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 on reliable interpretive principles there is certainly, to begin with, a core of privacy which is identified as marital privacy, and I believe it can and should be regarded as fundamental.

I think what we also have to recognize is that the notion of protected privacy, which may be enforceable under the 14th amendment, has a great potential breadth and not every aspect of it may rise to a fundamental level.

The CHAIRMAN. I agree. That is why I am asking you the question, because as you know as well as I do, if the Court concludes that there is a fundamental right, then for a State to take action that would extinguish that right, they must have, as we lawyers call, it is required they look at it through the prism of strict scrutiny. Another way of saying it, for laymen, is that they must have a

pretty darn good reason. If it is not a fundamental right and it is an ordinary right, they can use a much lower standard to determine whether the State had a good enough reason to preempt that right.

So, as we talk about this line of cases, in Griswold and in Eisenstadt-let me skip, in Moore v. East Cleveland, where the Court ruled, extending this principle of privacy from the question of procreation, contraception and procreation, to the definition of a family. As you know, East Cleveland had an ordinance defining a family that did not include a grandmother and grandson, and so East Cleveland, under that ordinance, said that a grandmother and her two grandchildren could be evicted from a particular area in which they lived, because they were not a family, as defined by the local municipality in zoning ordinance.

Now, the Court came along there and it made a very basic judgment. It said-if I can find my note, which I cannot find right now, and I think it is important to get the exact language, if I can find it-I just found it. [Laughter.]

Justice Powell said, "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th amendment."

Now, my question, Judge, is do you believe that that assertion by Justice Powell is accurate?

Judge SOUTER. I think that assertion by Justice Powell represents a legitimate judgment in these kinds of problems with respect to Moore just as in the discussion with Griswold. I am going to ask you to excuse me from specifically endorsing the particular result, because I recognize the implications from any challenge that may come from the other privacy case that is on everyone's mind.

But the one thing that I want to make very clear is that my concept of an enforceable marital right of privacy would give it fundamental importance. What the courts are doing in all of these cases is saying-although we speak of tiers of scrutiny-what the courts are saying, it seems to me in a basically straightforward way-is that there is no way to escape a valuation of the significance of the particular manifestation to privacy that we are concerned with, and having given it a value we, indeed, have to hold the State to an equally appropriate or commensurate reason before it interferes with that value.

The CHAIRMAN. That is exactly what I am trying to find out in your answering. So the valuation applied to a definition of family, is fundamental. The valuation applied to whether a married couple can use contraception is fundamental. The valuation applied to whether or not an unmarried couple can use contraception is fundamental.

Now, I would like to ask you, as I move along here, as you look at this line of cases we have mentioned-and I will not bother to go through a couple of others that I have anticipated-is my time up? I saw the light go off and I thought my time was about up and the one thing these fellows are not likely to forgive me for-they will forgive me for a lot of things but not for going over my time.

That when it comes to personal freedom of choice, as Justice Powell put it, in family and in marriage, one basic aspect of that freedom is the right to procreate. Now, early in the 1940's, in the

Skinner case, the Supreme Court said that criminals could not be sterilized. The Court made it very clear and it said, "Marriage and procreation are fundamental" and that sterilization affected "one of the basic civil rights of man.'

I assume that some of the civil rights that you are referring to that those who wrote the New Hampshire Constitution referred to. Do you agree that procreation is a fundamental right?

Judge SOUTER. 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.

The CHAIRMAN. Now, the reason I am pursuing this is not merely for the reason you think, I suspect. It is because you have been categorized as-I believe you have described yourself as an interpretivist.

Judge SOUTER. I did and I have, yes.

The CHAIRMAN. You have begun-and I thank you for it-you have begun to flesh out for me on which part of the spectrum of the interpretivists you find yourself.

Let me, in the interest of time, move on here. I am trying to skip by here.

Let me ask you this, Judge. The value that the Court places on certain alleged, by many, privacy rights will dictate, as we said earlier, the burden placed upon a State in the circumstance when they wish to extinguish that right, or impact on that right.

Judge SOUTER. Yes, sir.

The CHAIRMAN. Now, you have just told us that the right to use birth control, to decide whether or not to become pregnant is one of those fundamental rights-the value placed on it is fundamental.

Now, let us say that a woman and/or her mate uses such a birth control device and it fails. Does she still have a constitutional right to choose not to become pregnant?

Judge SOUTER. 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 start answering that question, in effect, is for me to start discussing the concept of Roe v. Wade. I would be glad-I do not think I have to do so for you-but I would be glad to explain in some detail my reasons for believing that I cannot do so, but of course, they focus on the fact that ultimately the question which you are posing is a question which is implicated by any possibility of the examination of Roe v. Wade. That, as we all know, is not only a possibility, but a likelihood that the Court may be asked to do it.

The CHAIRMAN. Judge, let me respectfully suggest the following to you: That to ask you what principles you would employ does not, in any way, tell me how you would rule on a specific fact situation. For example, all eight Justices, whom you will be joining, all eight of them have found there to be a liberty interest that a woman retains after being pregnant. That goes all the way from Justice Brennan-who is no longer on the Court-who reached one conclusion from having found that liberty interest, to Justice Scalia who finds a liberty interest and yet, nonetheless says, explicitly he would like to see Roe v. Wade, he thinks Roe v. Wade should be overruled.

So the mere fact that you answer the question whether or not a woman's liberty interest, a woman's right to terminate pregnancy exists or does not exist, in no way tells me or anyone else within our earshot how you would possibly rule on Roe v. Wade.

Judge SOUTER. 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 when they say there is a liberty interest to do thus and so, whatever it may be. They may mean simply that in the whole range of human interests and activities the particular action that you are referring to is one which falls within a broad concept of liberty. If liberty means what it is, we can do if we want to do it. Then obviously in that sense of your question, the answer is, yes.

The CHAIRMAN. It is more precise, Judge, than that. I mean liberty interest has a constitutional connotation that most lawyers and all justices have ascribed to it in varying degrees. For example, Justices Blackmun, Brennan, Marshall, and Stevens, they have said a woman has a strong liberty interest, although Justice Stevens has phrased it slightly differently. Justice O'Connor has made it clear that she believes a woman has some liberty interest. Even Justices Rehnquist, White, Kennedy, and Scalia, all of whom criticized the Court's rulings in this area have said that a woman has at least some liberty interest in choosing not to remain pregnant. Now, each of these Court members has acknowledged what we lawyers call a liberty interest after conception. So my question to you is, is there a liberty interest retained by a woman after conception?

Judge SOUTER. 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 I referred to before and then there is the sense of an enforceable liberty interest. That is to say, one which is enforceable against the State, based upon a valuation that it is fundamental. It seems to me that that is the question which is part of the analysis, of course, upon which Roe v. Wade rests.

The CHAIRMAN. Well, all liberty interests have following all liberty interest is a right. The question is, how deeply held and rooted that right is; and what action the State must take and how serious that action must be the rationale for that action-to overcome that interest?

But once we acknowledge there is a liberty interest, there is a right.

Judge SOUTER. But what-I am sorry.

The CHAIRMAN. So I am not asking you to tell me I am just told my time is up-I am not asking you to tell me what burden of proof the State must show in order to overcome that. I am asking you is there a liberty interest and your answer is what, yes, or no? Judge SOUTER. 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 be asserted under liberty, but how that interest should be evaluated, and the weight that should be given to it in determining whether there is in any or all circumstances a sufficiently countervailing governmental interest is a question with respect, I cannot answer.

The CHAIRMAN. With all due respect, I have not asked it.

But I will come back to that. My time is up. I yield to my colleague from South Carolina.

I thank you, Judge.

Judge SOUTER. Thank you, sir.

Senator THURMOND. Thank you, Mr. Chairman.

Judge Souter, the Constitution of the United States is now over 200 years old. Many Americans have expressed their views about the amazing endurance of this great document. Would you please share with the committee your opinion as to the success of our Constitution and its distinction as the oldest existing constitution in the world today.

Judge SOUTER. Well, Senator, it is difficult to make a pronouncement which is commensurate with the magnificence of the document. If I have to explain it in a few words I would do it by reference to a very limited number of concepts.

The first reason for the Constitution's success is its insistence and its recognition on the source of power. The source of governmental power is the people.

The second concept which has guaranteed its endurance is that that power is no more granted to government than the people grant to government. The very concept of the National Government is one of limited power, was one of its motivating, one of its very forces of life from the moment that it was presented to the people.

Third, I would look to the concept implicit in that document and as a basis of the bedrock of the structural sense of American constitutionalism that power is divided and that that division of power even granted, is a division of power which must be protected if the entire Government is to remain in the place that it was intended to have.

That structural sense of the division of power encompasses not only what we speak of as the separation of powers doctrine within the National Government, itself, but the concept of the distribution of power in a federal system.

I think the reasons then for the remarkable and blessed endurance of the American Constitution are extraordinarily pragmatic reasons. It rests upon a recognition of where its power comes from and it is structured with a recognition that power will be abused unless it is limited and divided and restrained.

Senator THURMOND. Judge Souter, the 10th amendment to the Constitution provides that powers not delegated to the Federal Government are reserved to the States or the people.

Would you describe your general view about the proper relationship between Federal and State Governments, as well as how would you characterize the States' power to legislate in areas not specifically enumerated to the Congress.

Judge SOUTER. 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 matter in which we know the Congress under article I has authority, and which is equally covered by the States. We are familiar with the doctrines of preemption which have developed over the years and we are familiar, of course, with the provision of the Constitution that in cases of conflict in legislation within both the constitutional competence of the States and