Okay, so you don’t know? Okay. What’s a penumbra? Thank you, Senator. My understanding of a penumbra are those rights recognized in the Constitution that are not specifically enumerated. Okay, we know that that privacy is a penumbra. Do we not? That’s my understanding, Senator. Are there any other Supreme Court holdings defining other penumbras? Senator, I’m sure that there are. Could you help me there? I understand there’s a right to travel that is not specifically enumerated in the Constitution. Yes, ma’am. Anything else? Again, I am sure there are and I’m happy. That’s okay.

Let me ask you one last question. When we look for a fundamental right in the Constitution, and we know from Supreme Court precedent that you and I have fundamental rights according to Supreme Court, President, we have fundamental rights that are not expressly delineated in the Constitution. One example is the right to privacy that we just talked about. What is the Supreme Court standard for looking at the Constitution and saying even though it’s not expressly delineated, we think that Americans under our Constitution have this fundamental right. Thank you, Senator Kennedy, for that question.

It’s hard for me to answer that in the abstract. What I do in every case when I’m presented with a question like that is I research the law and I find Supreme Court precedent on it. So in order to answer that question, I would need to do research to tell you what the standard is. I’m not asking the direct answer. I probably didn’t ask that very artfully. I’m trying to understand your appreciation of the state of law. Let’s suppose I litigate a case and I say I have a fundamental right to education. My case reaches the United States Supreme Court.

Now, I think we can both agree that the Constitution does not say expressly that I have a fundamental right to education. Let’s say for my children. Let’s suppose I’m arguing that it is implied in the Constitution. What test is the Supreme Court going to use to try to determine whether I or my children have a fundamental right to education? If I argued that it’s an implied right, a penumbra, if you will. Thank you, Senator. Certainly, it’s very difficult for me as a sitting magistrate judge to speculate what the Supreme Court would do.

But based on my reading of Supreme Court opinions, certainly the Supreme Court looks to the Constitution, the Bill of Rights, the 14th Amendment, the Due Process Clause of the 14th Amendment. Okay, on an issue like that, a right that’s not expressly stated in the Constitution, but it’s very important, obviously. We know that absence of education is the root of a lot of our social problems in America. Which branch of government do you think is better suited to make that decision? The decision being whether I have a fundamental right to education.

The legislative branch or the judicial branch branch? Thank you, Senator, for that question. Certainly, the role of the judiciary is to interpret the laws that Congress passes and the Constitution. To the extent that interpretation leads a Supreme Court to find a right to education, then that is within their province. Certainly, the legislature passes laws to fund schools and to govern education. So each body has its own role. But what I’m asking is, between the two branches, which branch in your judgment is better equipped to decide whether Americans have a fundamental right to education? Thank you, Senator, for that question.

I’m just asking for your judgment. I think when it comes to interpreting the Constitution, that is when the province of the Supreme Court and to the extent that there is a fundamental right to education that’s recognized by the Supreme Court, that would be the law of the land. What do you think about this point of view? Judges are constrained by the case before them, the law and the facts. You’re constrained by the record. You can’t stop a trial and say, I want to hold hearings from experts throughout the world to determine the importance of education.

You’ve got to make a case on the record. A legislature can. So a legislature has access to a greater breadth of expertise and knowledge to decide an issue like that. Why wouldn’t the legislative branch be better suited to decide a fundamental question like that? Then the case, then the court in a narrow case. As the witness prepares to answer, Senator Kennedy is probably one of the only senators I would give this kind of grace. He’s going on for about 11 minutes. I’m sorry. And sir, no, you can continue to go on. You’re my friend.

I just think there might be other senators waiting. Yeah, I’m sorry. I thought I was the last one, Mr. Chairman. You may be. I was just told that we might have others. No, I am so sorry. I apologize profusely to the chairman and to you. Thank you all for being here. [tr:trw].

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