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Is The Constitution A Living Or Dead Document?

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Is The Constitution A Living Or Dead Document?

Law

Is The Constitution A Living Or Dead Document?

Is The Constitution A Living Or Dead Document?

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Guests

David Savage, Supreme Court reporter for the Los Angeles Times and Chicago Tribune
John McGinnis, law professor, Northwestern University
Dahlia Lithwick, senior editor, Slate

One of the issues Supreme Court nominee Elena Kagan can expect to be quizzed about is the question of how she interprets the Constitution. In advance of the hearing, guests explain the various views, from originalist to living constitutionalist, and debate their merits.

NEAL CONAN, host:

This is TALK OF THE NATION. Im Neal Conan in Washington.

Next week, Supreme Court nominee Elena Kagan faces the Senate Judiciary Committee in a confirmation hearing that combines political theater, philosophical discourse and lengthy discussion about the meaning and interpretation of the United States Constitution.

We all went through this last summer, when now-Justice Sonia Sotomayor was in the hot seat. As you'll remember, this is a conversation with a language all its own.

We suspect that Elena Kagan will decline to say how she might rule on abortion, gay rights, eminent domain, gun rights, or any other hot-button issue, but we may get some insight about her philosophy, about how she reads the Constitution.

There are different schools of thought about that with specialized terms, including activist, originalist, textualist and the living Constitution.

Later in the hour, we'll talk about statistics, illegal immigration and crime on the Arizona border. But first, lawyers, law professors, students - how do you interpret the Constitution? 800-989-8255. Email us, talk@npr.org. And you can read the conversation on our website. Thats at npr.org. Click on TALK OF THE NATION.

We begin here in Studio 3A with David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. David, always nice to have you on the program. You have a busy week next week.

Mr. DAVID SAVAGE (Los Angeles Times, Chicago Tribune): Yes.

CONAN: As you look forward to - of course, one more big day of rulings, of course, tomorrow as well. But nevertheless, as you look forward to these, these terms about how you read the Constitution, what philosophies do they represent? For example, well, is activist a philosophy?

Mr. SAVAGE: Well, activist tends to be usually means it's a decision you don't like. I suppose in its purist meaning, an activist decision would be one that strikes down a law of Congress or state legislature. The court can say do nothing and just sort of uphold the law. If you strike down the law, critics can accuse you of being an activist.

CONAN: But you could be a liberal activist or a conservative activist.

Mr. SAVAGE: Correct. The President Obama says the court's in conservative activism because they struck down the laws on finance earlier this year.

CONAN: Now, one of the terms we hear a lot is originalists, and as we mentioned in the top of the program, the justice most usually associated with that is Antonin Scalia. What is an originalist?

Mr. SAVAGE: Well, an originalist is, according to Justice Scalia, somebody who follows the original words of the Constitution and what those words meant when the Constitution was adopted. This is really a debate that grew out of Roe vs. Wade and the death penalty decisions of the early 1970s.

And if you remember, in 1972, the Supreme Court struck down all the death penalty laws as unconstitutional. The next year, they struck down all the abortion laws as unconstitutional. And there was a conservative reaction to this, and a lot of conservatives said: Where did that come from? Where in the Constitution do you find a right to abortion?

Scalia was of that generation, Robert Bork, and they basically said the Supreme Court is making up the law. They're changing the Constitution. We've got to decide cases based on what the Constitution said and what it meant. And that's been a very powerful liberals have had a very difficult time of refuting that because it sounds like if you disagree with it, that you do want to just, like, make it up as you go along.

CONAN: But people point out the Constitution originally described slaves as three-fifths of a person. That's not what Justice Scalia means.

Mr. SAVAGE: No, and Justice Scalia's simple answer to that was the Constitution was amended. There were a lot of bad things in the Constitution. Women didn't have the right to vote.

CONAN: Sure.

Mr. SAVAGE: The Constitution was amended, and it was changed, and now it means something different today, and he accepts that, of course.

CONAN: And when they talk about the living document or the living Constitution, these are people who say wait a minute, we didn't have cars in 1789.

Mr. SAVAGE: I think the best way to describe the living Constitution is our understandings change. Let me give you an example that's a current example and one that's going to come to the court: gay marriage, same-sex marriage.

The 14th Amendment in 1868 said no state shall deprive any person of the equal protection of the laws. We knew what that meant in 1868. It said don't have separate laws for blacks and whites.

What does it mean now? In California there's this debate about the California Proposition 8. The voters affirmed part of the state constitution that says marriage is for a man and a woman only.

The challengers say, look, I'm part of a gays or lesbians, we're part of a couple. There's a fundamental right to marry. How can the state discriminate against us? They say this state discrimination violates their right to the equal protection of the laws.

If you take the Scalia originalism view, clearly they don't have a case. The equal protection clause didn't mean that in 1868. If you believe that there's a living Constitution or that meaning can evolve over time, that we see things differently, we see discriminations now that are just wrong, irrational and wrong, and a court can strike them down as violations of equal protection.

CONAN: That final arguments in that case in San Francisco were just heard, and we're expecting the judge's, the federal judge's, ruling. We also expect no matter which way he rules that it will be appealed first to the Ninth Circuit in California and presumably ultimately to the Supreme Court.

And David, textualist is another term we hear. What is that?

Mr. SAVAGE: Well, that's part of Scalia's theory. Follow the actual words. It seems so simple that you'd think how in the world could you argue with that? You know, follow the actual words.

This actually comes up in a lot of statutes too. Scalia's view says we ought to follow what the law actually says, not what is intended or what Congress meant. It's another it's not a constitutional debate, but it's a legal debate.

I think that there's a lot of good criticism to the Scalia view. One is that it's very hard to know what the original meaning of the Constitution was, even when the words are clear.

I'll give you an example from two years ago. The Second Amendment says a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Well, what do you do when a state has a law that says you can't have a gun, we feel more secure if people don't have a lot of guns? Someone sues and says you're denying my right under the Second Amendment.

Four justices read that phrase and said a well-regulated militia being necessary to the this is about states rights and militias, the phrase bear arms. Scalia and the four other...

CONAN: Four other justices.

Mr. SAVAGE: Read it to say no, wait a minute, this is really about the right of the people to have, individuals to have guns. So even when the words are clear, it's not always easy to say what they mean.

And then there are phrases like cruel and unusual punishment. It seems to me that phrase almost asks judges or justices to think what's cruel and unusual punishment today? The fact that someone could have been put to death in the 1700s, the 1800s, for a theft, even if the person was 12 years old or 15 years old, how many people would think that that is not cruel and unusual punishment today, to execute a 12-year-old?

So the critics of the Scalia view say you've got to, in effect, take terms like unreasonable search and cruel and unusual punishment and to some degree reflect how we understand those words today.

CONAN: David Savage, thanks very much, and indeed tomorrow we expect to hear from the court on that gun question, as they rule...

Mr. SAVAGE: Tomorrow or Monday, two more days, yes.

CONAN: Or Monday. In this case of the city of Chicago and whether it applies there. David Savage covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. He joined us here in Studio 3A.

Joining us now from our bureau in New York is John McGinnis, professor of law at Northwestern University. Nice to have you with us today.

Professor JOHN McGINNIS (Northwestern University): Delighted to be here.

CONAN: And also joining us from the studios at the University of Virginia in Charlottesville is Dahlia Lithwick, senior editor at Slate, and thank you very much for coming in.

Ms. DAHLIA LITHWICK (Senior Editor, Slate): Thank you for having me.

CONAN: And we wanted to get you both engaged in a conversation about how you read the Constitution. John McGinnis, how do you read the Constitution?

Prof. McGINNIS: Well, I am of the originalist view, and I believe that because I think the Constitution is produced through super-majority rules, rules that require a consensus of the nation, and a Constitution needs to have a consensus behind it, and it's in virtue of the meaning that got that consensus that makes it likely to be a good meaning.

And I contrast that with the living constitutionalist. I mean, after all, judges are a very rarified group of people from an elite strata of society. They live in one place, don't have a variety of attachments, and they rule by majority vote. They can make extremely controversial rulings that destroy the consensus in society.

And then finally, another problem with living constitutionalism is that it undermines the amendment process. People may and should amend the Constitution, but if the judges anticipate amendments, we get fewer amendments, and I think that's happened in this century.

The Equal Rights Amendment, I think, died because both the Supreme Court anticipated a bit of it and because the Warren Court was so non-originalist, no one trusted them to give them another text, which they thought they would read as a kind of blank check. And so I think it really strikes at the heart of our constitutional democracy, our own constitutional conversation as citizens, to come together and amend our founding document.

CONAN: Dahlia Lithwick, where do you come down?

LITHWICK: I think I would probably characterize myself, Neal, as an originalist plus, and what that means is that I don't dispute that reading the text of the Constitution is critically important, trying to ferret out the plain meaning is critically important. I just think it gets you about halfway to your solution about a quarter of the time.

And so it's a very, very useful interpretative device, as far as it goes, but and I think David Savage put it better than I could in an evolving time with new technologies, with new mores, with new ideas of what is right and wrong, and looking at a document that is incredibly ambiguous in places and even within itself, I think, espouses contradictory values so that you can't say the Constitution is for free speech, it's for free speech except for where it isn't.

And I think that originalism is part of the story. It's very, very useful, I think, as a constraint upon the judiciary for all the reasons Professor McGinnis says. We need to constrain the judiciary. It's very, very critically important, but I don't think it gets you where you need to go in most of the hard, hard, close cases that actually get to the Supreme Court.

CONAN: And what about his argument about anticipating constitutional amendments? That has been a process very rarely applied for.

LITHWICK: Certainly that's right. I mean, this is what Justice Scalia always says. He says, look, if you have a problem with the Constitution as written, amend it. But that suggests that that's easily done, and again, it also suggests that the Constitution is perfectly clear. And I think the Constitution is, as David said, deliberately unclear about things like what due process of law means, what cruel and unusual punishment means.

And so to suggest that you can amend it I think sort of obscures the harder problem, which is: How do you amend something that was deliberately left open-ended?

CONAN: Well, lawyers, law professors, students, we want to get you involved in this conversation. How do you read the Constitution? 800-989-8255. Email us, talk@npr.org.

More in a moment. How about how the justices interpret the Constitution and how that may play out in next week's confirmation hearings for Supreme Court nominee Elena Kagan. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. Im Neal Conan in Washington.

To get ready for her Senate confirmation hearings next week, Elena Kagan has been practicing. The president's pick to be the next Supreme Court justice spends hours at a time answering questions about the law, her qualifications, about how she interprets the Constitution.

When the real thing begins next week, you can count on hearing long, in-depth discussions about the living Constitution, about originalism and other terms that may mean little to many Americans but have great resonance to students of the United States Constitution.

We're talking today about what these views really mean and how they will show up in court decisions and whether or not justices all fall into neat categories, anyway.

So lawyers, law professors, students, how do you interpret the Constitution? 800-989-8255. Email us, talk@npr.org. You can also join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Our guests are John McGinnis, a professor of law at Northwestern University, and Dahlia Lithwick, senior editor at Slate.com. And let's see if we can get a caller in. This is Jeff(ph), Jeff with us from Louisville.

JEFF (Caller): Hi. Basically, your guests have supported what I've said. I think that the Constitution was written, and we should follow it. And I think it hurts our country that a decision that the Supreme Court makes one year could be overturned by a different court the next year. It divides our country.

Once a decision has been made, that should be it. And it should be up to the people to work to change that, not to hope that someone dies and that somebody gets into the court that agrees with them. And then I want to say something...

CONAN: Jeff, could you give us an example of an issue that you feel has been turned out badly because of what you're complaining about?

JEFF: Roe versus Wade. People are not people do not accept the decision. They think that if we can just get some conservatives in there, we can change the interpretation of the Constitution. And what they should be doing is they should be trying to get two-thirds vote to change the Constitution.

They should be working on an amendment. And when they realize that they cannot - or they can or cannot get that, then we can come together as a country. But right now, what the Supreme Court has created for us is bickering. Okay, well, you can't trust that decision because next year they might decide something else. And that hurts us. Instead of making us work to fix problems, it makes us bicker amongst ourselves.

CONAN: And Dahlia Lithwick, I think what Jeff is talking about, we'll hear that expression stare decisis, and that means respect for precedent set by earlier Supreme Court decisions.

LITHWICK: That's right. I think Jeff makes a good point. Chief Justice John Roberts, when he talked about stare decisis at his confirmation hearing, said it was important because whenever the court overturns a precedent, there is a, quote, jolt to the system. And that's exactly I think what Jeff is saying. It's very jolting when the court changes course. People form their expectations based on past precedent.

But at the same time, I think it's really important to note, and I just want to flag that Justice David former Justice David Souter just gave a really important speech about constitutional interpretation, and he talked about how important it was that the court was there in 1954 to decide Brown v. Board and to overturn precedent that was Plessy versus Ferguson, right? That was the 1896 separate-but-equal decision.

So it cannot be the case that every decision the court makes is good and should be set in stone forever. I think Brown is a really good example, and Justice Souter used it as an example of nothing had changed. The language of the Constitution hadn't change. The facts hadn't really changed.

What changed was that the court looked at the same language of the Constitution and said, you know what, separate but equal is wrong. It simply violates the Constitution.

And so I think we can't be so willing to reify past precedent that we can't look at it and say, oh my God, in some of these cases, we have made horrific mistakes, or thank goodness our mores have evolved to the point that we just don't want separate but equal to be the law of the land anymore.

CONAN: John McGinnis, would an originalist have said we needed an amendment instead of a Brown versus Board decision?

Mr. McGINNIS: I don't think so. I also read Justice Souter's speech, and I thought it was quite, in some ways, shocking because what he said was really Brown v. Board of Education, we needed new social realities to understand that separate but equal was unconstitutional.

Plessy v. Ferguson was wrong as an original matter when it was decided. That is absolutely plain. The idea of the 14th Amendment was to establish a right to contract, and you weren't letting Plessy, Homer, have the same right to contract for the car that he wanted to sit in. He didn't want to sit in the other car. He wanted to sit in this particular car that other people were.

And so that was actually a violation of the original understanding of the Constitution. And the reason that it was violated was the social understandings had changed by 1896. A lot of people didn't accept the views that were prevalent after the Civil War. There had been a reaction and a sense that really there needed to be separation among the races and to bring the South back into the Union.

So I think Plessy v. Ferguson is an excellent example of non-originalism, and non-originalism is actually at the root of the reason for - that Jim Crow dominated the society for 80 years.

CONAN: Jeff, thanks very much for the call, appreciate it. Email from Chris(ph): The Founding Fathers thought we should revisit the Constitution on a regular basis to make it relevant with any changes. We do a disservice to the founders by believing that what they wrote is immutable. We treat them like gods, which they themselves did not wish us to do. John McGinnis, revisit the Constitution on a regular basis?

Mr. McGINNIS: Well, we can certainly do that through the amendment process, but more than that, the Constitution was written in a way to allow for the democratic process to react to evolving changes in society.

And I would talk about sexual mores as an excellent example of that. The real thing that's changed sexual mores in this country is a structure the framers gave us. That's federalism. It means that people in San Francisco and New York City have had, for most of the century, very different morals than people in other - a sense that you could have much more tolerance and still have a very well-functioning society.

And they got around, wrote about that and actually have won, not I think because some new cases from the Supreme Court but because they persuaded people by a process of competitive federalism. They've demonstrated in states what works, and that catches like wildfire to other states. And that's a mechanism of change that's built into the Constitution.

So it's a mistake to think that the amendment process is the only way the Constitution has to address social change.

CONAN: Well, Dahlia Lithwick, I wanted to bring you in on that point. Obviously, the Supreme Court did eventually weigh in on issues like interracial marriage and then on what states could regulate in terms of what happens in the bedroom.

LITHWICK: That's right, but when they weighed in on interracial marriage in Loving versus Virginia, most of the country was still opposed to it. And I think it's really, really important to understand that the court sometimes acts as a counter-majoritarian check in this country, that by design, the court has to be there to say just because everybody wants separate but equal or just because everybody wants anti-misogynation laws or just because everybody wants gay marriage to be illegal doesn't make it so, that it's complicated. And that there has to be one institution and this is why we give them tenure for life that is protected from the ebbs and flows from what the majoritarian will is. And that is, I think by design, why the court is supposed to be different.

Now, I think Professor McGinnis makes a very, very good point, and it's probably the point that undercuts what Jeff was saying when he called in, and that is sometimes, the court gets way far ahead of public opinion. Sometimes the court makes a decision that either appears to be poorly reasoned or not rooted in the Constitution or appears to get ahead of what the public want, and then you do get a backlash.

So it's not clear that the court is always doing us a service when it tries to say, hey, it doesn't matter what the majority says, here's what the law says. But I think that that's a very, very delicate dance. It's a dance best left to the court.

But the idea that the court can never make a pronouncement about the law unless the American people are ready to hear it I think really undervalues why we have a court in the first place.

CONAN: Let's get another caller in on the conversation. Freddie's(ph) with us from Chattanooga.

FREDDIE (Caller): Hello.

CONAN: Hi, Freddie, you're on the air. Go ahead, please.

FREDDIE: Yes, I want to just make a comment. We forget sometimes the context of the Second Amendment of bearing arms. See, this is a nation that it was fighting for its independence against an oppressive power. So the idea of bearing arms, forbidding citizens to bear arms, of course, it was not warranted.

But now that we've formed a government for the people, by the people, what need is there for us to arm ourselves to fight against our own government, ourselves? It makes no sense. Taking the context, the historical context of the amendment, should be a very important part of interpreting the Constitution.

CONAN: Well, 1789, when the Constitution was drafted, and then, of course, the Second Amendment was part of the first 10 amendments to the Constitution. The war had been over for some time. But nevertheless, John McGinnis, this amendment, he suggests it applied to a very different time and place.

Mr. McGINNIS: Well, that kind of reasoning, of course, could be used to get rid of the First Amendment. The First Amendment was not in a world of mass destruction and danger of terrorism, so we should greatly restrict the First Amendment because we have these new social realities. That's not an argument I agree with at all, but it's an argument that I see as a matter of interpretation. Arguments that we should simply get rid of the meaning of the Second Amendment or eviscerate the Second Amendment because of changing realities is an argument essentially against a written constitutionalism as an anchor.

And, of course, we have a way of getting rid of it. If the social realities have so plainly changed, we can amend the Constitution. After all, it was a very high threshold to get something in the Constitution, and that's why it should be hard to amend the Constitution. That's a part of our constitutional system. If it's important that a constitution work to make only those values which represent a consensus as part of our Constitution, of course it's going to be hard to change it.

CONAN: Freddie, thanks very much for the call. Email from Vince in Salem, Oregon: Where in the Constitution does it talk about the Internet, airplanes, automobiles, machine guns or rogue oil companies? Well, it doesn't. So do these so-called originalists then believe there's no constitutional authority to regulate any of those things because they are not mentioned in the Constitution? That seems like a hardly rational way to govern.

I think that would come under the interstate commerce clause. Is this really about those kinds of things, Dahlia Lithwick, or more about principles like the right to privacy?

Ms. LITHWICK: No, I think he's right. I think that there are these very, very tough questions about the Constitution's prohibitions, for instance, on government searches that becomes very, very complicated when you're dealing, as we were last week, with a pager, with a cop in California who had a government-issued pager that he was apparently abusing.

And so I think it's not simply the big ideas, like privacy or the death penalty. I think that Vince is quite right that as technology changes, we really have to be very, very smart about applying these basic principles. And I think that that's one of the things that the court has tried to do so well. And, actually, the pager case was an interesting example where Justice Anthony Kennedy, writing for the majority said, look, I'm kind of scared to make a hard-and-fast rule. I'm not going to make a big, huge proclamation about pagers in the workplace for all time because we don't really know much about pagers yet. And so he crafted a very, very narrow rule. Justice Scalia, by the way, was not pleased with him for that.

But I think the court is well aware that new technologies pose huge new questions about existing doctrine, and they try to be very, very sort of slow and careful and meticulous about applying those doctrines. But, you know, I remember there was a case where Justice Scalia wrote about thermal imaging technology to determine whether or not you had a pot plant growing in your house. And he did it, and he did it because this is what the courts are entrusted to do.

But I think that Vince's core point, which is it's not self-evident from the language of the Constitution whether or not thermal imaging technology used by the police comes under one or another vision of what privacy is. It doesn't. And so that's what judges are for. What judges do is very hard. And as I said, these are always hard and close cases because it's not evident in the plain language of the text.

CONAN: Dahlia Lithwick of Slate, senior editor there. Also with us, John McGinnis, a professor of law at Northwestern University.

You're listening to TALK OF THE NATION, from NPR News.

And let's go next to Mike, and Mike's with us from Charlotte.

MIKE (Caller): Yeah. Hi, there. I just have a quick point. And this is -this follows up on the speech that Dahlia mentioned that Souter gave. He highlighted the ultra complex nature of interpreting the Constitution, and it's only right. We wouldn't need these highly educated judges to interpret a document if it was only black-and-white pronouncements.

And that's why, you know, I respect these judges, and that's why I actually am kind of maddened every time I see these confirmation hearings where they're coached to sit down and say, I read the law, I read the facts, and I apply the law to the facts, because it's just not that easy. And I really regret that we have to watch them prostrate themselves before Congress saying things like that. And that's my only comment.

CONAN: All right, Mike. Thanks very much for the call. And, John McGinnis, he's right, in a way, about what we can expect to hear next week from the - this has now become a sort of well-rehearsed performance by Supreme Court nominees.

Prof. McGINNIS: Yes, I fear that's so, although I think there's some good questions to ask, to ask questions about originalism, to and ask Judge - Solicitor General Kagan about the question about if there are other - no precedent on the matter, would she consider other materials other than the original understanding of the Constitution? I think that would give us some insight into her judging.

And I hope some general questions like that will be asked, and then some good follow-up questions will be asked. That's often the problem in these hearings. There are some pretty good answer - questions, some good answers, but little follow up from the senators.

CONAN: Dahlia Lithwick, these often come up in the guise of questions about the right to privacy.

Ms. LITHWICK: They do. I mean, what happens is it becomes this elaborate kind of cha-cha, where each justice on the - I'm sorry, each senator on the committee picks their pet issue, whether it's privacy or whether it's guns or whether it's the death penalty. And then they ask these sort of very, very complicated questions, often mentioning their own pet legislation somehow as a footnote. And then they get to the nominee, who - and, you know, the single greatest critic, by the way, of this system was Elena Kagan herself, who, 15 years ago, wrote a really, really stinging analysis of how shallow - and she called them vacuous - these hearings were, and all the tricks that the nominees use to evade answering the questions.

But I think it's really true that they have a litany of ways that they can sort of recite. Here it is - here's why I can't answer this question. It's too broad. Here's why I can't answer this question. It's too narrow. Here's why I can't answer this question. It's already come before me. Here's why I can't answer it. It may come before me. There's such an enormous repertoire. And I think with each hearing, it really cements itself as part of this growing body of reasons that you don't have to answer anything, that it really becomes, I think, a rather pointless exercise in watching how many different ways the nominee can say, I can't answer that, senator.

CONAN: And the schools of thought, one we haven't included, that, of course, of the John Roberts school when he mentioned: He's like a baseball umpire - fair foul, ball, strike, safe, out. Go ahead.

Ms. LITHWICK: Well, I was just going to stay I think that in some sense, even though it was the single-most clever metaphor that's ever been deployed in a confirmation history, because it really, I think, did exactly what Mike said. It made judges look like they were robots who really didn't matter what their preexisting views were because all they do is, quote, "apply the facts to the law." But while it was clever, I think it's really disserved the judiciary, because it makes it look as though judging is easy, and it's just not.

Prof. McGINNIS: But...

CONAN: Very quickly, John McGinnis.

Prof. McGINNIS: Yes. I think it gets at, though, an essential truth, which is that insofar as we focus on the objective meaning, we are going to be - have a more objective judiciary that will put their preferences aside. So I do think it captures an essential ideal of the judiciary.

CONAN: John McGinnis, professor of law at Northwestern - also, Dahlia Lithwick, senior editor at Slate. We thank them for their time.

Coming up next: immigration crime and the border. This is NPR News.

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