tv Key Capitol Hill Hearings CSPAN October 24, 2013 10:00am-12:01pm EDT
laden, these are truly forces of darkness, and they cannot engender a vision for this world. so i will be fighting whether or not you are. and i found that to be true then and true today, and what i love about it is, is that this articulate afghan man who was the person for intelligence in 2001 put it so perfectly. the afghans were fighting al-qaeda long before the u.s. was in battle with al-qaeda. and now we look at the afghans and say you're on your own kind of thing. i mean, i spoke just this morning to someone on the ground in kabul, and the sense that i have from the john kerry/karzai negotiations is that neither of them are particularly committed to this agreement that they've come up with. and that's not good for afghanistan, and it's not good for the u.s. ashley, can you pick up on that, please? >> i think it's very important to recognize one simple fact, we cannot afford to let al-qaeda
and jihadist islam more generally enjoy another victory over a superpower. i think there are many jihadists in afghanistan and around the world who believe that they successfully confronted the soviet union and defeated it. that empowered the movement in ways that have become extremely dangerous for us not only in south asia, but worldwide. and we cannot end up leaving the region in a situation where they can draw the same conclusion that now they've defeated the united states as well. that is something that i think we ought to keep in mind as a strategic consequence of the way they manage the transition. there's another point that i want to make. getting afghanistan right does not require overinvestment on the part of the united states. it's very important to understand that what we need to do for success in afghanistan does not require us to bankrupt
the united states, it does not require an open-ended, uncontrolled commitment of resources. >> which is unpopular with the american people. >> which is unpopular and which is unnecessary given the gains that have been made in the last several years. what it does require is a responsibility, a consistency of leadership and a willingness to hold out support until afghanistan can make the transition to being independent. >> so how long is that? how long are you talking? >> it is extremely hard to make that judgment our priority. but we have to be committed to the principle that as long as the afghans are willing to put their foot to the pedal, the united states will stand with them in making this possible. i think this is the kind of discussion that we ought to have, because in the abstract discussions about the numbers of troops, discussions about top
lines with respect to assistance, tease things are unhelpful -- these things are unhelpful. what we need to do is, essentially, assure the afghans that if they make their contribution, the united states will not be found wanting. and when one actually does the math, you discover that the numbers are actually not as overwhelming as people think, and i hope in the discussion that follows we get a chance to explore this in some depth. >> so, seth, you're going to follow up on that. some people might think you guys are crazy, this is a done deal, we're out of there, right? this administration isn't going to consider anything other than how fast they can get out. >> well, let me just say two things. one is that the decision hasn't been reached. so we don't know -- december of 2014 is, in theory, the end of combat operations, but what does that mean? hasn't been decided. i would say i'm a little bleak on whether this administration is committed to keeping a necessary footprint in afghanistan. but this brings up an issue that
we might actually, we might disagree on somewhat which is what should we be doing. and what should the footprint look like? and i'll just briefly state these situations are very different, but when i look around the world at where the u.s. has been able to deploy forces whether it's been in the philippines or a range of other countries, philippines after 9/11 with a somewhat light footprint supporting local forces, i'm not convinced at this point in the struggle that those numbers have to be high. i think the u.s. could remain in afghanistan with a lethal counterterrorism footprint that is joint special operations command forces, u.s. special operational forces and other conventional forces to do basic training, advising and assisting and then keep what you call
enablers, that is air power to conduct strikes in case there are, there's pressure by the taliban or other groups on a city, predator/reaper capabilities that can collect intelligence, surveillance and reconnaissance. i've looked at numbers between with 8 and 12,000 u.s. forces that really let afghans do the bulk of the fighting. the u.s. is largely in a supporting role as probably being sufficient. >> which, i have to point out, the afghans are actually willing to do, the bulk of the fighting. >> well, they have been, and afghans have been taking multiple of the casualties that international forces have been taking for quite some time. they're bleeding in this war, and they're continuing to recruit and stay with their forces. i just want to make one point about the numbers we talk about because we can come to the conclusion of the feasibility of 8 or 10 or 12,000, but there is a question about is this something that we're prepared to
say that if the requirement in afghanistan to achieve the american vital national security interests is 15,000 troops but the white house only wants to put 12,000 troops in there, is the president actually prepared to say that he is willing to compromise vital american national interests over 3,000 troops? is that actually a rational calculation? are we prepared to say that we will put in 12,375 troops but not one more, and if we lose, therefore, so be it? because you either think that we have vital national security interests in afghanistan in which case we might be well advised to put in the resources required to achieve them, or you don't in which case we shouldn't be there. >> so what that reminds me of is general shinseki saying before the iraq war that you need 200,000 troops to hold it. that was unpopular politically, he was gone. it also reminds me of general mcchrystal having to make a recommendation on numbers and
being told what his upper limit was before he made his recommendation. so what concerns me about that is political leaders seeking political advice from their military leaders rather than pure military advice which, even if you go back to vietnam, has always been the case but is no less troubling today. now, we have a question from the audience that was top of the pile and is one of my favorite questions on afghanistan because it's something that i have been blown up on the afghan/pakistan border, i have been shot at from the pakistani side of the border. i pressed president musharraf on this question many times. i said, general, the cia says if you let them operate on pakistani soil, they can find osama bin laden, and he said, madam, can i say this is bullshit? i said, you're the president, you can say whatever you like. [laughter] true story. and where was osama bin laden found, and who find him -- found him, by the way? seth, i kno this is something
you spent a lot of time on, and it's a question that i think is extremely relevant. president karzai annoyed a lot of people by saying you should be across the border, why are you in my villages, and what made it difficult to understand about what he was saying is that you and i both know the problem lies in the safe havens in pakistan. and you're not doing anything about it. so this question comes from peter with the american enterprise institute who says american enemies have complete freedom of movement in pakistan. how can we defeat al-qaeda without addressing the question of pakistan? and, you know, as anyone on the hill will tell you, we can't afford another war, blah, blah, blah, but that suggests nothing can be done. what we have in pakistan today is a failed policy. it was a failed policy under president bush, and it is failed policy under president obama. so who wants to take that one? >> i can start. [laughter] look, let me just start with
what i consider to be the reality which is the war in afghanistan, partly what we're talking about here, there are plenty of afghan taliban. there are plenty of individuals in afghanistan fighting. that said, it is worth noting very specifically that the command and control structures for every single insurgent group, every single major insurgent group -- taliban, haqqani network -- are all on the pakistan side of the border. that is where the command and control nodes are. the taliban's leadership structure, its inner sure shura, sits in balochistan. one level down you have three regional shuras or committees. one is in -- [inaudible] a second is in pa shah what, so
it is worth noting that the borders here are significant. and when you look also at the command and control nodes for al-qaeda's global leadership, they also sit on the pakistan side. so, indeed, we spend a lot of time talking about afghanistan, and there is an afghan dimension to this that is important. but the command and control nodes for every major insurgent group sit on the other side. now, i will say with both this administration and the last one, there have been virtually no major efforts, successful efforts, to target the leadership on the pakistan border. there are no drone strikes that happen down in balochistan, no individuals captured down in balochistan. that is where the taliban's senior leadership is located. if one is to really get serious about this, then one has to take into consideration, a, why has little been done and, b or two,
what are the implications of continuing to do virtually nothing about this? so i can leave this to others to solve, but i wanted to get the threat and the reality on the table which is this is, there is a very serious pakistan issue here. >> [inaudible] >> i'm sorry. >> i add -- >> pakistan and india -- >> sure. can i add two thoughts to that. i think we should at least entertain the hope that pakistan will recognize that it's in its interests to do more than it has ever done before for a very simple reason. now that there is a realistic prospect that the united states might leave, it could end up leaving behind an afghanistan that becomes a sanctuary actually for terrorist groups that are as much anti-pakistan as they are anti-afghanistan and anti-united states. so for the first time, pakistan has to confront the reality that afghanistan could now begin to feed and funnel terrorist groups
that undermine its own interests. second, we cannot count, however, on pakistan reaching the right conclusions from this fact. and, therefore, i think we need to rethink the character of our relationship with pakistan. and to my mind, there is no alternative but to make the relationship with pakistan a lot more contingent on pakistani behaviors that we have historically done. now, we can debate the details about how this contingency is to be expressed, but if we have a relationship with afghanistan that, in effect, conveys to them that no matter what they do american largess will float above them uninterrupted, then what you've done is created a structural situation that they have no incentives to change. so at the very least, the u.s. needs to look at itself and its own policy to think about how, you know, how we might reengage with pakistan this question. let me end by saying a word
about india. india is deeply concerned that a premature american exit from afghanistan would end up leaving that country in exactly the way that the indians faced it in the '90s which is, essentially, a cauldron for all kinds of terrorist groups that would move with pakistani support or without it to attack indian interests. so the indians have essentially said that they will do whatever they can to prevent the current dispensation in pakistan from being overthrown by force. but we've also got to realize certain realities. the indians do not have the capacity to substitute for the united states. the indians, therefore, are going to look, like many other allies, at the united states for leadership before they begin to show their happened. their hand. and the surest way to lose all the regional allies who might be supportive of kabul is for the united states to run first to the exit.
and so it comes back at the end of the day to consistency of policy and consistency of leadership. and if we fail on that count, we not -- we should not be surprised to find that afghanistan will lose many of its regional partners as well. >> you wanted to follow up. >> yeah. i have to say that i'm less optimistic about pakistan than i am about afghanistan. i think that there are things that we can do in afghanistan to move it in the right direction, and there are forces working this in afghanistan moving it in the right direction although be we do the right things, i think they will be defeated. pakistan is an enormously difficult problem. it's a country of 190 billion some odd people -- 190 million some odd people approaching nuclear weapons and the largest concentration of terrorist groups anywhere in the world, and it is clearly a problem. my question to people who say why are we in afghanistan when pakistan is the problem is you have to explain to me how the situation is helped by taking a
weakened al-qaeda and terrorist -- and taliban infrastructure in afghanistan and making it stronger while trying to persuade the pakistanis to fight the ramifications of that on their side. it's quite true that you can't win this fight on either side of the durand line, but the corollary is that you can't win it in pakistan if you lose it in afghanistan. they are linked in that way. and this is just too often left out of our discussion entirely. one of the reasons to care about afghanistan is because of pakistan. >> and because of pakistan's nuclear weapons. >> yes. >> so i have another question from the audience. this is from edward joseph, johns hopkins, sais. it was for me. why blame our leaders for not giving a reason to stay in afghanistan when it's the media that constantly reports on corruption, green on blue attacks, failure of programs, etc. and i would say we both bear responsibility, absolutely without any question the media
is culpable. and there is some good reporting on afghanistan, not nearly enough, and there's some terrible reporting on afghanistan. but what i would point out here to you, edward joseph, is that the journalists that are writing a lot of this stuff are getting calls from government officials who, by the way, love to leak things when they're the ones doing the leaking but are very active in going after leakers when they don't like the leaks, because they counteract the message of the administration. and we apparently like going after journalists for leaks these days too and, apparently, the media doesn't seem to raise much of an objection about that either. so there's a lot lacking in the media, i take full responsibility for that. i would say to you, though, i did a piece, you know, not this season, last season about the return of al-qaeda in afghanistan, and the significance of what they were doing and how, you know, for example after bin laden was killed the announcement that came for his replacement came out of kunar which was then the
de facto headquarters of al-qaeda if in afghanistan. i mean, the evidence is there and not enough journalists are paying enough attention to it, and that is definitely factor. but the people giving the message who are deliberately misleading are the leadership. and that's what i hold them accountable for. because when we look at the reality on the ground, it's different to the picture that's painted by the leadership. and i think we all have a responsibility to be honest. not just the media and not just the politicians. and the failure of policy is something that we have not addressed well in the media. there's a failure of policy in afghanistan and failure of policy in pakistan. and when the afghans ask us what our policy is on pakistan, we don't even have one to tell them. certainly not one that makes any sense or gives them any confidence. and what -- we're very quick to hold the military accountable for their failures, as we should be. but no one seems to be as quick to hold the politicians
accountable for their failure wheres of policy. so the next question comes from leann weintraub and i think is a fair point that he makes here. with all the signs of progress cited by the panel, what percent of the afghan population is now part of a functioning modern state? we all know there's no percentage of the population that's part of a functioning modern state, but that's not necessarily the benchmark here of progress because i do remember an afghan that didn't have, you know, one pane of glass, and kabul today is pretty dramatically different from what it was when i went with the afghans who took it from the taliban. >> the objective is not to establish a modern, functional state in afghanistan, and that has not been the objective for quite a number of years. i have the privilege of serving on general mcchrystal initial assessment review when we had the long conversations about what exactly we wanted to have happen and concluded -- and this
is what, i believe, the white house also believed and believes -- that the objective is a state in afghanistan that is regarded as sufficiently legitimate by its people that the nature of the state is not fueling an active insurgency against it. the question is not whether kabul is going to look like washington or topeka. the question is whether the afghan people for the most part are going to accept the legitimacy of their government the way most people in most countries around the world and all countries that don't have insurgencies do. that's a different standard in different parts of afghanistan as you well know. when you go up into capillary valleys in konar, they don't want any government. and when you try to bring government to them, you have a big problem. in urban centers it's a very different situation. and i think we've seen some progress. the corruption is important. i don't think we should minimize the corruption. the corruption has been a driver of instability for a variety of reasons and will continue to be. but we're looking for something that will satisfy the afghan
people. and that's what we've been driving toward. and i think that's what the progress has been moving toward even though we don't recognize it as the kind of state that most americans would want to live in. >> one of the things that struck me about spending time as several of us have spent time over the years in afghanistan is how, occupy types of -- how many types of states there are within. there's a formal state apparatus that is based out of kabul that has ministries. but when you get out to rural areas, you get an informal apparatus. this is not, this is a very different kind of structure. this is not, this is not the balkans that we spent time, this is not germany after world war ii or japan after world war ii. the state system is very different here. there is a limited central government, and when you get into southern afghanistan, for example, you have push tune tribes, subtribes, clans, power brokers and, you know, the
interesting thing over the first couple of years of the struggle was how many resources the u.s. tried to push through the state system. including building a court apparatus and judges and changes that we think are near and dear to us. when you get out into the rural areas, justice is handed down through informal apparatus. leaders in a village will adjudicate disputes informally. this is not, this is not the united states, this is not western-style state apparatus, so part of this issue i think we need to be a little careful about what we're trying to construct and what we should construct. and i strongly second fred's point. if i can say one other issue about the media, one of the things that has struck me about the media and, lara, you've been a major exception to this, is how little people have actually looked at the other side of the struggle. this is not just about focusing on what's going on within the
u.s., within the afghan government. there are problems like there are in any war. but you look at the taliban side. they've had to establish an accountability commission because there's been corruption within the taliban. they're involved in the drug trade. they're involved in trafficking poppy, in targeted assassinations. roughly 75-80% of the civilians killed are done by the insurgent side. so, you know, one of the disservices, i think, to the coverage of this war from the media perspective is when issues of corruption come up, the focus is on one side. of the reality is this is a struggle within and among multiple different organizations that -- and there are just as if, -- just as many, if not more challenges within the insurgency as there are in the government. again, everything from corruption to the inability of taliban forces to read. so when people show me literacy
rates among afghan forces, i say, well, actually interesting to compare they're better than they are on the insurgent side, so you want to talk about comparisons. i think that's been a bit of a disservice in the way the media's covered the war. >> so, ashley? >> i would just make the point that afghanistan has always been a decentralized state. and any mental model that thinks of afghanistan as a unitary, central state is using the wrong benchmark. the benchmark we ought to be using is a very simple one. for the average afghan, has personal security increased in the everyday circumstances of their lives? two, has there been a mechanism for dispute resolution and the administration of justice? and, three, are ordinary afghans able to conduct hair economic act -- their economic activities without undue interference from the state? i mean, these are the metrics by
which you judge progress. and i think as both fred and seth said, the picture varies considerably depending on which part of afghanistan you go to. and our objective has to be to make certain that the portions of afghanistan that have not established progress on these counts actually begin to you and develop on the basis of the examples set by their most successful neighbors. >> okay. so we're starletting to run out of time -- starting to run out of time. this last question i would like everybody to answer if they can add their point to it. i'm going to take a question from the audience and add to it myself. we have here from anna, sorry, i'm going to mess up your last name, but i think it's morani from the christian science monitor who said if the al-qaeda leadership is still along the afghanistan/pakistan border, does this mean the u.s. has lost its decades-long war? and i think the part that is even more relevant is if we haven't won the war in 12 years,
what more can u.s. troops accomplish beyond 2013, '14, '15? so what i would like to add to that is there is a their ty that is -- narrative that is pushed by the pro-taliban sort of faction and by other people in washington that says the taliban doesn't have any beef with america beyond the fact that you're in their backyard. there's no ideology in this fight. go home, and we're done, it's over. and, you know, those are people who believe that the taliban and al-qaeda's relationship can be questioned and, you know, and pulled apart. and i would put to that that people from the taliban side who have come over or been persuaded to give up arms, not a single one of them has ever publicly renounced al-qaeda, not the haqqanis who have more than 30,000 fighters, not a single leader. and given that, if you could explore both what the military could achieve beyond 2013, '14,
'15 and, also, you know, why we should care, what is the consequence of coming home, why does it, why does it matter? >> do you want me to take a crack at that? >> sure. >> i think the most important thing that we can do post-2014 is to help the afghan state take greater responsibility for the security of its own country. in practical terms what that means are three things. first, stand by afghanistan so that it can negotiate with its regional neighbors from some position of strength as opposed to simply becoming a victim to its more powerful, to its more powerful neighbors. two, we have to help the afghan state overcome what will be a severe contraction in national gnp after the u.s. and its national forces cease to engage in security operations post-2014. nothing works if you do not have an economy that is at least
moderately successful. and so anticipating the contraction in afghan gdp and working to mitigate it at least until afghanistan can stand on its feet is the second important objective. the third important objective is helping the ansf, the afghan national security forces, essentially succeed in the fight which is increasingly their own. and so the role that we can play is not for the united states and the international community to take the lead in fighting the adversary, the afghans want to do that, they're capable of doing it, they are willing to do it. what we need to do is simply provide them the tools so that they can finish the job. >> let me just add to a couple of ashley's comments. i think one way to look at this is if you look at the last major ideological struggle that the u.s. was engaged in, against the soviet union during the cold war. now, i don't want to draw too many parallels here, but it was
a struggle in part against marxism, leninism. it was an ideological struggle. it was not just on the battlefields. and if you were to ask yourself in 1960, we'd been at this for 15 years after yalta, haven't we, haven't we, haven't we been doing this long enough, struggling in africa or struggling in latin america or struggling in eastern europe, imagine if we'd sold out the opposition groups in poland in the 1960s and 1970s. look -- the struggle didn't actually end until the late 1980s and early 1990s when groups within states like poland, solidarity rose up finally against an ideology that the population just could not live with. to shift gears here, and afghanistan is a good example of this, we are in a struggle with an oppressive ideology.
the taliban's vision of afghanistan, al-nusra's in syria, they're different in certain ways. but in afghanistan, the groups that are trying to win this one from the opposition side are trying to establish an extreme version of islam, an emirates where the most important ministry is virtue and vice. it's an ideological struggle. and so i would just say people who want to give up this early on, remember, this one is a generational struggle. it's not one that's going to be measured in months or years. so i would view afghanistan in a much broader sense. and when you look at what's aping in north africa -- happening in north africa and what's happening in the middle east, this is a struggle that is happening on multiple continents. the leadership, though, sits in this particular region which is why i'm just going to end my comment here by noting that this is what makes this particular
theater so critically important, is the leadership structure sits here. >> fred? >> i second all of those comments. it is quite true that mullah omar never swore allegiance to osama bin laden because, actually, it was the other way around. osama bin laden swore allegiance to mullah omar. as we talk about disaggregating al-qaeda and the taliban, it's important to understand that they have been aggregated for two decades. and as you say, there has been -- there actually have been arguments about whether to break with al-qaeda. there was a big argument in the '90s about whether to break with al-qaeda when omar was on one side. guess who won? there was a fight when after 9/11 we demanded they handed over osama bin laden. mullah omar said no way, and haqqani said no way.
so these are groups that have been fighting together and for each other for a long time, and i know there are people who think they can see into mullah omar's soul and believe that they, you know, if only they could talk to him, then we could work this puppy out. but that's, there's no basis in reality for that view. look, as we talk about -- i think seth's analogy is a very good one. the tide of war is receding. the tide of war is not receding. by any be measure, the amount of war in the world today is higher than it was when barack obama took office. it's higher than it was since george bush took office also. the tide of american desire to be involved in war is receding. but now i have to go back to my roots and say we may be tired of war, but war's not tired of us. we can decide that we are going to stop fighting al-qaeda, but al-qaeda has not decided that it's going to stop trying to attack us.
every day thousands of al-qaeda fighters and leaders wake up and ask themselves what they can do that day to improve their ability to kill americans. as long as that's true, we do have a dog in this fight. and we can argue about strategies and we can argue about whether we should do this or that or how many troops, but if we don't proceed from an understanding that that's the world as it actually is, then we are doomed from the standpoint of developing any decent strategy. and lastly, i want to say that we have been talking about two different things that are treated as different but shouldn't be. one is the humanitarian issue in afghanistan, our promises to the afghan people, the question of what will happen to afghan women and so forth, and the other is our security interests. those are actually, in my view, not easily separable. because the united states is not or should not be an amoral actor in the world. we should not be a country, in my view, that just doesn't care. if millions of people whom we've
promised safety and security in a certain kind of life are suddenly victimized, killed and treated horribly. we should care about that. and the reflection of the possibility of that kind of care, i think, is in the formation of a new group that was rolled out yesterday that i have the pleasure to be a part of, the alliance in support of the afghan people, which has members from the spectrum from me to gloria gloria steinem. and both sides are represented in this because it is a recognition that the united states has obligations to its people for their security and has obligations to them also for the ethical nature and morality of our international engagement, and we really can't lose sight of either of those. >> thank you very much. i would just close by saying that what you have here before you is a group of people whose interests in afghanistan and in the consequences of this transcend politics.
this isn't about who's in power at any time. this interest is born of a long-term involvement in the region and what each of us has seen and learned from the afghans, from the pakistanis, from being on the ground there at that time. and the worst part about all of this, i think, is that terrible sense of déjà vu, isn't this charlie wilson's war? so what i would, what i would leave you with today is that i ask the panelists behind the stage, you know, not to sugar coat it and not to give political answers, and i think that you have to respect the courage and integrity that you've seen today in that the answers you've been given here are truly what these individuals believe, and they have the experience and knowledge in the region for their voices to count. so what's left to us is to, is to hold our government to account. thank you very much. thank you for listening, thank you for coming. [applause]
[inaudible conversations] >> live now to the east room of the white house for remarks from president obama on immigration. he's expected to call on congress to take up comprehensive immigration reform, an item that had been placed on the back burper after the senate -- burner after the senate passed a bill in june, that went nowhere in the house of representatives. republicans in the house have said they'd prefer to take up a number of smaller bills rather than one large package a passed by the senate. live coverage here on c-span2. [inaudible conversations]
>> and you see the room filled with people waiting for the president. we expect that to begin in a few minutes. and while we wait for the president to begin speaking, a preview of tonight's final debate in the virginia governor race between democrat terry mcauliffe and republican ken cucinelli. >> begin with what do you expect from tonight's debate, who has the most to gain, who has the most to lose here? >> guest: well, the latest polls -- as with all of the most recent polls -- suggest that mr. mcauliffe, the democratic nominee, is way ahead. the republican nominee, ken cucinelli, clearly playing
catch-up. in the argo of contemporary politics, he is hoping that tonight he can use this debate to change the fairtive. the narrative. and one of the things that we've been seeing a lot of in recent hours from the cucinelli campaign is a new, fresh and more vigorous attack on health care reform. this seems to be more an effort to rally the republican base than really reach to vast firms of swing -- vast numbers of swing voters, independents who typically decide elections here in virginia. >> host: so what have you seen in, just in the past few hours from the cucinelli campaign? >> guest: well, this morning bright and early another statement from cucinelli operatives trying to link the must have-up in the obamacare -- the muff-up in the obamacareout
to mr. mcauliffe. mr. mcauliffe has said he would like virginia to expand its medicaid program to comply with obamacare, and there's a good deal of debate within state government over that. the republicans, who control the house of delegates, are dead set against that or so they say, and it promises to be a big flashpoint if mr. mcauliffe is elected. so what we're basically seeing here is guilt by association. >> host: so terry mcauliffe has had a lead here, and do you suspect that that continues, or does that narrow as we get closer to election day? >> guest: well, it's likely that it will narrow somewhat as voters come home. however, the biggest issue in this campaign seems to be mr. cucinelli himself. he is a tea party conservative republican, he makes no apologies for that. however, when he ran for attorney general in 2009 racking
up over a million votes, it's quite clear he was not subject to the closest scrutiny by the electorate. and that scrutiny has elevated in the years he has spent in the attorney general's office with a number of high-profile crusades, if you will. one of the first attorneys general in the country to challenge the aca, a big struggle in court unsuccessful against the university of virginia over the research of a scientist up there by climate change and, of course, continuing efforts to restrict abortion in virginia. and that shows up consistently in the polls this terms of -- in terms of an enormous gender gap. women are breaking to mr. mcauliffe by double digits, and this seems to be largely a consequence of the republican nominee's outspoken
opposition to abortion rights. >> host: and are these independents that are breaking for mcauliffe? who are the undecideds? >> guest: well, at this point there don't seem to be a lot of undecideds. the women who are breaking to mr. mcauliffe are not only democrats, there are a good number of republican and independent female voters. and for them a big issue, of course, is abortion rights. >> host: what about the libertarian candidate in this race? who is he, what role might he play? >> guest: robert sarvis who ran unsuccess friday several -- unis success friday several years ago for the legislature, seems to be a bit of a drag for mr. cucinelli. the polls, again can, they are really curiosities, suggest that he's running in the low double digits. he is clearly presenting some problems for mr. cucinelli in
terms of drawing away lib libertarian votes. he has not had a chance to participate many any of these debates because he hasn't really maintained a double-digit standing in the polls. but we're expecting to see him tonight in blacksburg. word is he may be live tweeting from virginia tech. [laughter] >> host: and what do you suspect the government shutdown, how are that play -- how will that play out in tonight's debate? >> guest: it has been an enormous factor. please keep in mind that virginia has a very substantial -- [inaudible] economy, about 26% of its economy that is drawn directly or derived directly from federal spending, military and civilian. so the beenough sense of uncle
sam touches the lives of many virginians. as a result, there are many virginians who were very upset over this shutdown. and it's not just those who work for the federal government or federal contractors, largely concentrated in northern virginia, but all along the i-95 interstate 64 corridor swinging down to the atlantic seacoast, that defense-rich southeastern region, also a big factor down there. it is clearly driving up the negatives for the republicans. mr. cucinelli has gone to great lengths to distance himself from what occurred in washington. however, he's doing this at the same time relying on such important national republican figures as ted cruz and also rand paul. >> host: with so, jeff schappe row, just finally -- shapiro, the richmond times dispatch did
not endorse a candidate in this race. i understand the divide between you as a columnist and the editorial board, but what -- why not? and what impact, what does that say about this race? >> guest: well, the editorial page of the richmond times dispatch certainly for the past 40 years has shown a great preference for republican gubernatorial nominees. it has not endorsed a democrat for governor in ten elections. so it is widely assumed to have been, to be a default republican newspaper certainly in gubernatorial election years. so the conventional wisdom at end of interstate 95 is the silence of the times-dispatch on this governor's race is an indication of continuing republican discontent with mr. cucinelli. >> host: all right. jeff schappe row, politics columnist with the rich monday times-dispatch. thanks for setting up tonight's
debate. >> guest: you bet. >> again, back live to the east room of the white house waiting for remarks from president obama on immigration. he's expected to call on congress to take up a comprehensive immigration reform. that's an item that has been placed on the back burner after the senate passed a bill in june that went no where in the house of representatives. republicans in the house have said they'd prefer to take up a number of smaller bills rather than one large package passed by the senate. at this hour a house committee is examining the web site problems associated with the rollout of the affordable care act. government contractors hired to help with the site designed functionality are testifying before the house energy and commerce committee. committee members are questioning officials about what they did or did not know issues wise prior to the october 1st rollout. you can see that live now on our companion network, c-span. it's also on c-span radio and online at c-span.org.
and coming up later on today here on c-span2, the center for the national interests hosts a panel discussion on the consequences of the government shutdown for domestic and international politics. and how the republican party should change or focus its strategy moving forward. we'll bring that discussion to you live, 12:20 eastern here on c-span2. again, we are live in the east room of the white house waiting for president obama's remarks on immigration, watching live coverage on c-span2. [inaudible conversations]
>> thank you! thank you so much. everybody, have a seat, have a seat. [applause] >> thank you very much. well, please, have a seat, even. good morning. >> good morning. >> and welcome to the white house. [laughter] today i'm here with leaders from business, from labor, from faith communities who are united around one goal, finishing the job of fixing a broken immigration system. in this is not -- this is not just an idea whose time has come, this is an idea whose time has been around for years now. leaders like all of you have worked together with republicans and democrats in this town in good faith for years to try to get this done. and this is the moment when we should be able to finally get
the job done. now, it's no secret that the american people haven't seen much out of washington that they like these days. the shutdown and the threat of the first default in more than 200 years inflicted real pain on our businesses and on families across the country, and it was a completely unnecessary, self-inflicted wound with real costs to real people. and it can never happen again. but even with the shutdown over and the threat of default eliminated, democrats and republicans still have some really big disagreements. there are some just fundamentally different views about how we should move forward on certain issues. on the other hand, as i said the day after the shutdown ended, that's no reason that we shouldn't be able to work together on the things that we do agree on. we should with be able to work
together on a responsible budget that invests in the things that we these to grow our economy and create jobs even while we maintain fiscal discipline. we should be able to pass a farm bill that helps rural communities grow and protects vulnerable americans if hard times -- in hard times, and we should pass um gration reform -- immigration reform. [applause] we should pass immigration reform. it's good for our economy, it's good for our national security, good for our people, and we should do it this year. everybody knows that our current immigration system is broken. across the political spectrum, people understand that. we've known it for years. it's not smart to invite some of the brightest minds from around the world to study here and then
not let 'em start businesses here. we send 'em back to their home countries to start businesses and create jobs and invent new products someplace else. it's not fair to businesses and middle class families who play by the rules when we allow companies that are trying to undercut the rules, work in the shadow economy, to hire folks at lower wages or no benefits, no overtime so that somehow they get a competitive edge for breaking the rules. that doesn't make sense. it doesn't make sense to have 11 million people who are in this country illegally without any incentive or any way for them to come out of the shadows, get right with the law, meet their responsibilities and permit their families then to move
ahead. it's not smart, it's not fair, it doesn't make sense. we have kicked this particular can down the road for too long. now, the good news is this year the senate has already passed an immigration reform bill by a wide bipartisan majority that addressed all of these issues. it's a bill that would continue to strengthen our borders, it would level the playing field by holding unscrupulous employers accountable if they knowingly hire undocumented workers, even as we train american workers for the jobs of the future, we're also attracting highly-skilled entrepreneurs from beyond our borders to join with us to create jobs here in the united states, it would make sure that everybody plays by the same rules by providing a pathway to earned citizenship for those who are here illegally, one that
includes passing a background check, learning english, paying taxes, paying a penalty, getting in line behind everyone who is trying to come here the right way. so it had all the component parts. it didn't have everything that i wanted, it didn't have everything that anybody wanted. but it addressed the core challenges of how we create a immigration system that is fair, that's just, that is true to our traditions as a nation of laws and a nation of immigrants. and that's passed the senate by a bipartisan majority. [applause] so here's what we also know, that the bill would grow the economy and shrink our deficits. independent economists have shown that if the senate bill became law over the next two decades, our economy would grow
by $1.4 trillion more than it would if we don't pass the law. it would reduce our deficits by nearly a trillion dollars. so this isn't just the right thing to do, it's the smart thing to do. securing our borders, modernizing our legal immigration system, providing a pathway to earned, legalized citizenship, growing our economy, strengthening our middle class, reducing our deficits, that's what common sense immigration reform will do. now, obviously, just because something is smart and fair and good for the economy and fiscally responsible and supported by business and labor and -- [laughter] evangelical community and many democrats and many republicans, that does not mean that it will actually get done. [laughter] this is washington, after all. [laughter] so everything tends to be viewed through a political prism.
and everybody's been looking at the politics of this, and i know that there's some folks in this town who are prone to think, well, if obama's for it, then i'm against it. but i'd remind everybody that my republican predecessor was also for it when he proposed reforms like this almost a decade ago, and i joined with 23 senate republicans back then to support that reform. i'd remind you that this reform won more than a dozen republican votes in the senate t in june. i'm not running for office again. i just believe this is the right thing to do. [applause] i just believe this is the right thing to do. [applause] and i also believe that good policy is good politics in this
instance. and if folks are really that consumed with the politics of fixing our broken immigration system, they should take a closer look at the polls, because the american people support this. it's not something they reject, they support it. everybody wins here if we work together to get this dope. to get this done. in fact, if there's a good reason motto pass this common sense -- not to pass this common sense reform, i haven't heard it. so anyone still standing in the way of this bipartisan reform should at least have to explain why. a clear majority of the american people think it's the right thing to do. now, how do we, how do we move forward? democratic leaders have introduced a bill in the house that is similar to the bipartisan senate bill. so now it's up to republicans in the house to decide whether reform becomes a reality or not. i do know, and it is good news, that many of them agree that we
need to fix our broken immigration system across these areas that we've just discussed. and what i've said to them and i'll repeat today, is if house republicans have new and different, additional ideas for how we should move forward, then we want to hear 'em. i'll be listening. i know that democrats and republicans of the senate, those who voted for immigration reform already, are eager to hear those additional ideas. but what we can't do is just sweep the problem under the rug one more time. leave it for somebody else to solve sometime in the future. you know, rather than create problems, let's prove to the american people that washington can actually solve some problems. this reform comes as close to anything we've got to a law that will benefit everybody now and far into the future.
so let's see if we can get this done. and let's see if we can get it done this year. now -- [applause] we've got the time to do it. republicans in the house, including the speaker, have said we should act. so let's not wait. it doesn't get easier. to just put it off. let's do it now. let's not delay. let's get this done. and let's do it in a bipartisan fashion. to those of you who are here today, i want to just say one last thing, and that is thank you. i want to thank you for your persistence, i want to thank you for your activism, i want to thank you for your passion and your heart when it comes to this issue. and i want to tell you, you've
got to keep it up. keep putting the pressure on all of us to get this done. there are going to be moments, and there are always moments like this in big efforts at reform, where you peat resistance -- you meet resistance, and the press will declare something dead. it's not going to happen. but that can be overcome. and i have to say, joe, as i look out at in this room, these don't look like people who are easily deterred. [laughter] >> i don't think so. >> they don't look like folks who are going to give up. [applause] you look fired up to make the next push. and whether you're a republican or a democrat or an independent, i want you to keep working, and i'm going to be right next to you to make sure we get immigration reform done. [applause] it is time, let's go get it done. thank you very much, everybody. [cheers and applause]
>> you can check our website for updates on c-span's coverage plans for the president's trip. at this hour a house committee is examining the website problems associated with the rollout of the affordable care act. government contractocontracto rs hired to help with the site design functionality are testifying before the house energy and commerce committee. committee members are questioning officials about what they did or didn't know issues wise prior to the october 1 rollout. you can see that live now on our companion network c-span, also on c-span radio or online c-span.org. some of your reactions coming in as you are watching the hearing. it's painful to watch our elected officials demonstrate their lack of understanding
>> that's from a couple of minutes ago. coming up later on your and c-span2, the center for national interest host a panel discussion on the consequences of the government shutdown for domestic and international politics. and how the republican party should change our focus its strategy moving forward. we will have that live at 12:20 p.m. eastern right here on c-span2. >> author an astrophysicist neil degrasse tyson on america's call for scientists and engineers. spent as nasa's future go, so, too, does that of america. if nasa is healthy, then you
don't need a program to convince people that science and engineering is good to do. because they will see it writ large on the paper. there will be calls for engineers to help us go ice fishing on europa where there's an ocean of water that's been liquid for billions of years. we're going to take to the oil -- bustle of mars. that will give you the best biology. look at the national portal today. it's got by on becoming this is, plantar jollity, aerospace engineers, mechanical engineers and electrical engineers, all the s.t.e.m. fields. science, technology, engineering and math represent any nasa portfolio. a healthy nasa is a flywheel that society casts for innovations. >> over the past 50 years booktv has aired over 40,000 programs about nonfiction books and authors. booktv every weekend on
c-span2. >> the heritage foundation held a discussion on the constitution and the rule of law with ninth circuit court of appeals judge diarmuid o'scannlain. the latest figure in the organizations honoring joseph story. judge o'scannlain was nominative night circuit court of appeal by the present ronald reagan and the serb since 1986. spirit good afternoon and welcome to the heritage foundation. we, of course, take this opportunity to welcome those were joining us on our heritage.org website, those are also joined us on c-span this afternoon. we would ask anyone in house to make sure your cell phones have been turned off for all of the recordings going on. we will post the program within
24 hours on the heritage home page for everyone's future reference, and our internet years and television viewers are always welcome to send questions. send e-mailing us at firstname.lastname@example.org. hosting our discussion and introducing our special guest today is the ronald reagan distinguished fellow americans here at the heritage foundation, also the 75th attorney general of the united states, edwin meese. [applause] >> thank you ladies and gentlemen. i join john in welcoming you here to this lecture this evening. which as you know, the joseph story lecture as those who are familiar with legal history no is named in honor of the distinguished judge who epitomizes faithfulness to the constitution. and this lecture is part of the series we've had here in our preserving the constitution
series, marks a very important part in that series obviously. in november 1811 at the age of 32, joseph story became the youngest justice appointed to the united states supreme court. he served in that capacity from 1811-1845. he is perhaps best remembered for his magisterial commentaries on the constitution of the united states which was first published in 1833. this work is met by many experts in the field, is marked as literally the cornerstone of a early american jurisprudence. it was the first comprehensive treatise on the provisions of the united states constitution him and remains a critical source of historical material about the forming of the american republic and particularly that novel idea
that the founders put together in our constitution. and that was an independent judiciary and particularly the supreme court. joseph story was known as the statesman of the old republic, in the sense that he was one who did much to shape the concepts, the ideas in accordance with the ideas of the founders as they looked for our constitution and how it should be utilized and interpreted, and how it should become the foremost basis upon which the courts should make their decisions. and, of course, that continue to be something very important to us here at heritage. story was active not only as a justice literally as a pillar of the legal profession. he was even while sitting on the supreme court he became a professor of law at harvard. he also was a prolific writer,
writing many law review or what passed us all reduce in those days, magazine articles and the like. he was also a frequent orator on patriotic occasions and other public events. and also published a variety of books on a whole series of subjects relating to the law. his books were recognize even those early days both in the united states and also internationally. like justice story, our speaker tonight has demonstrated throughout his career his fidelity to the constitution. i might say in a circuit that frequently has had need of such guidance. [laughter] >> judge o'scannlain has participated in over 10,000 federal cases and has written hundreds of published opinions on a broad range of subjects.
one of his particular subject on which he is expert is of course constitutional law, which makes him a logical speaker here at the story lecture. is also worked in a number of ways to further the cause of justice. the late chief justice rehnquist appointed him as chairman of the federal judicial center's advisory committee on appellate judge education to chief justice roberts were result has appointed him to the international judicial relations committee of the united states judicial conference, and subsequent appointment as chairman of that body, which is very critical in bridging the gap between the united states and other countries in the discussion of the judiciary and constitutional matters. his professional interests also include judicial administration and reforms, and particularly legal education. he has been chair of the judicial division of the american bar association, he is
chaired the aba's appellate judges conference and of their committee on appellate practices. is also an adjunct professor at the lewis and clark law school, and has been a moot court judge throughout the country in a number of distinguished law schools. he's retired from the united states army reserve where he served for a number of years, 23 years i believe, in the jag corps and worked in both the army reserve and national guard. judge o'scannlain and his wife, who is with us here tonight, they have eight children and 18 grandchildren so he is literally hoping carry-on -- [laughter] -- the spirit of constitutional fidelity. ladies and gentlemen, an outstanding speaker, truly worthy for his fine work as a judge and as a defender of the constitution, judge o'scannlain. [applause]
>> thank you for the very kind introduction, ed. it is a singular honor to be delivering the joseph story lecture here at the heritage foundation. and your presence here tonight makes this honor all the more meaningful to me. for those of us who believe that judges are required to enforce the original meaning of the constitution, general meese is a real hero. not only was ed instrumental in the appointment of judges who valley original meaning of the constitution, but he also made the case for this entry to approach in high profile speeches are in his time as attorney general of the united states. those speeches had a tremendous impact on the legal culture, and it is fair to say that without
ed meese, the effort to restore the original meaning of the constitution would not have been nearly as successful as it has been for that, all of us owe ed a debt of gratitude. [applause] >> the name of this lecture carries with it a great legacy. through opinions and essays, commentaries and treatises, just if joseph story's influence continues to resound through american legal thought. and rightly so. his breath of northwest extraordinary, spanning subject as good as promissory notes, constitutional law, and even natural law. james mccullough, legal scholar associated with russell kirk, once said that joseph
story's work on natural law stands out like array of light in the midnight hour of american legal theory. indeed, natural law philosophy that i wish to focus on these evening. a comprehensive analysis of story's jurisprudence is, of course, far beyond the scope of this lecture. rather, i offer a sketch of his views on the natural law with the modest goal of showing how some of his insights might bear on a few of today's most hotly contested legal disputes. my analysis of story's natural law philosophy must begin by acknowledging the limits of my inquiry. to speak of story's philosophy is to imply that story had a consistent, coherent understanding of natural law.
but the truth is that there was a good deal of confusion about natural law in the late 18th and early 19th centuries. the natural rights theory of john locke, and other enlightenment thinkers, was often unwittingly conflated with the natural law theory offered by philosophers like thomas aquinas, and story himself was guilty of this confusion on occasion. fortunately, however, we need not detain ourselves with the differences between natural law and natural rights, because the aspects of story's philosophy that i wish to examine and to parallel fairly well. albeit imperfectly. those of the classic natural law tradition. let us begin than by examining
story's understanding of the relationship between natural law, the law that exists without any human author, and positive law, the kind of man made law that congress passes and that i interpret in my everyday role as a judge. in addition to being a justice of the supreme court, story, as you've heard, was one of the great legal scholars of his day. he was a chaired professor at my alma mater, the harvard law school, and it was as a professor that story produced his famous commentaries on the constitution which serves as a textbook for scores on constitutional law. given story's extensive body of scholarship, it is unsurprising that he penned an encyclopedia entry on natural law. which appeared in france's leavers encyclopedia americana.
this encyclopedia essay remains story's most complete explanation on his views on natural law, and so it is appropriate that we focus our examination of story's philosophy there. story's essay opens by defining natural law as that system of principles which human reason has discovered to regulate the conduct of man in all his various relations. let me we read his definition. natural law is that system of principles which human reason has discovered to regulate the conduct of man and all his various relations. immediately we should notice that story sees natural law as something pertaining to reason, to use the words of aquinas.
it is something we can all access through story rather than something known only by revelation. but unlike the laws that are passed by congress, natural law does not change. story says that god has fixed the laws of mankind being, and has a supreme right to prescribe the rules to which financial regulate his conduct. again we see the agreement between story and aquinas, who wrote that the natural law is altogether unchangeable in its first principles. it is important for us to pause here and to understand that the natural law applies to man because of the nature of man. and that natural law thinkers, including story, believe that man's nature and is an important
respects inherent, and unchangeable. it is critical to grasping what has been sent natural is universally binding on mankind. indeed, our declaration of independence explicitly assumes a fixed human nature from which we can derive certain principles. the declaration says that we are endowed by our creator with certain unalienable rights, such as life, liberty, and the pursuit of happiness. but those rights derive on the premise that all men are created equal. in other words, it is only because of the nature of man our fundamental equal dignity that certain principles are binding upon all mankind.
these conclusions lead directly into story's account of man-made law, sometimes called positive law. in classic natural law theory, positive law is derived from and implements the natural law. as the reverend martin luther king, jr. explained in his letter from a birmingham jail, to the extent that a positive law conflicts with the natural law, there is no obligation to obey such a law because, in the words of augustin, it is no law at all. now, story was an agreement with dr. king's description of the relationship between natural and positive law, and uses the example of marriage to illustrate his views. he observes that marriage arises from the laws of nature because
it channels otherwise dangerous sexual appetites towards the mutual good of the spouses. and responsible procreation and rearing of children. from these premises, story concludes, if marriage be an institution derived from the law of nature, then whatever has a natural tendency to discourage it or to destroy its value is by the same law prohibitive. in other words, story believed that positive law must conform the natural law. remarkably, for justice joseph story, as for other classic natural law thinkers, hosted law that conflicts with the natural law is not law at all. having examined the story's
general philosophical framework, but to see how he applied this view in concrete cases. in the 1822 admiralty case, an american public armed vessel sees an allegedly friendship, is suspected in engaging in the trafficking of slaves. the american captain asserted that the trafficking of slaves from africa to a foreign court violated the law of nations. and, therefore, the confiscation of the ship was the appropriate penalty. story's opinion begins by claiming that the law of nations rests on the eternal law of nature. the law of nature, he said, is deduced by correct reasoning from the rights and duties of
nations, and the nature of moral obligation. natural law, for story, is the basis for the law of nations. however, story is careful to note that he, as a judge, only has the authority to enforce the law of nations if it has not been relaxed or waived by the consent of nations acting in their general practices and customs. indeed, story is willing to enforce the act of 1793 in his opinion, despite his strong view that slavery was inherently unjust. even story, an ardent proponent of the natural law, recognized that the judicial office placed limits on his ability to apply natural law.
in another setting i have expressed a similar view about the power of the american judiciary to enforce natural law. i believe the issue to one side for our purposes this evening. turning to the practice of slave trafficking, story writes that, and i quote, it cannot admit a serious question that such exploitation is founded in a violation of some of the first principles which ought to govern nations. it is repugnant to the great principles of christian duty, the dictates of natural religion, the obligations of good faith and morality, and the eternal maxims of social justice. and here is the key line. win any trade can be truly said
to have these ingredients, it is impossible it can be consistent with any system of law that purports to rest on the authority of reason or revelation, end quote. now remember that story believes that positive law is the only law insofar as it conforms to natural law. and natural law is derived from reason. having concluded that natural law prohibits slave trafficking, story explains that no system of law that purports to be based on reason can sanction such activity. therefore story writes, it is sufficient to stand any trade as a predicted by public law when it can be justly affirmed that it is repugnant to the general principles of justice and humanity.
and so the court held in that admiralty case that slave trafficking violated the law of nations, and it refused to order return of the vessel to its owners. nevertheless, for reasons of comity, the court did hand the vessel over to the french counsel, despite the court's skepticism about the true nationality of the ship. story's interpretation and application of the natural law was thus decisive to the outcome of that case. and several features of story's natural law philosophy stand out in the opinion. in the primacy of natural law over positive law, it is prominent as is the idea that the natural law is rooted in the common nature of man. such that the natural law is
universal to all mankind. we will revisit these things later, but first let me examine story's philosophy of positive law. as many of you know, story was a self-proclaimed disciple of edmund burke. blackbird, story emphasized the importance of tradition and experience in the formulations of positive law. it was burke who said we are afraid to put men to live and trade on his own private stock of reason because we suspect that the stock in each man is small, and that the individual would do better to avail themselves of the general bank and capital of nations and of ages. whinny surveyed the list of men in the national assembly at the start of the french revolution,
burke observed that the best were only men of fear, lacking in all practical experience. as brooke put it, from the moment i read the list i saw distinctly and was very calm and very nearly as it actually happened all that was to follow. in burke's view, they chaos and barbarism of the french revolution so chillingly depicted by charles dickens in a tale of two cities was a direct result of the revolutions attempt to divorce itself from france's history, customs and experience. brooks emphasis on experience and tradition derived from his understanding of human nature. he believed that the nature of man is intricate and that that no simple disposition or direction of our can be suitable
aided in man's nature or to the quality of his affairs. therefore, a deep knowledge of human nature, he said, is required a statesman, and history and traditions are the best way of knowing what institutions and laws are best suited for human nature. now, joseph story was of the same mind. in the introduction to his commentaries on the constitution, story wrote, the constitution of government is addressed to the common sense of the people, and never was designed for trials of logical skill or visionary speculation. he believed it was essential for any public official to distrust the theory and clinging to practical goods, to rely more on experience than reasoning, more
up on institutions and laws, more upon checks device than upon motives to virtue. it is quite clear then that story embraced bourque's approach to government and lawmaking, one that prizes experience and tradition over theory and novelty. this burkean theory of lawmaking accord with story's views of natural law. as professors robert george and russell have reminded us, natural law theory distinguishes between two kinds of positive law. those that follow logical conclusion from national such as the laws from homicide, those that are not required by natural law. but are consistent with it.
these latter type of laws are called -- and they include laws like the one requiring drivers to drive on the right side of the road. there's an estimation a vast majority of positive laws are determined not see on his. they require lawmakers to make practical judgments about the best way to achieve some and rather than producing these laws directly from natural law principles. thus they derive their binding nature from the fact they were promulgated by a recognized competent legal authority rather than being compelled by the natural law. aquinas says that in the creation of it, lawmakers should follow aristotle's advice and pay as much attention to the and
demonstrated settings and opinions of persons who surpasses and experience, age and prudence as to their demonstrations. aristotle argued that law has no power to command obedience except that of habit. and so laws should not be lightly change. this view of positive law when discussing the enactment of emperors cautioning that new laws must have some clear advantage and view, such as to justify departing from a rule of law which has seen fair since time immemorial. so then, story's natural law philosophy fits comfortably with this burkean approach to positive law. the crucial point of similarity between these two theories is
this, both assume that mankind has a fixed nature. the modern idea of inalienable and socially constructed human nature is alien to burke and a telling us -- and aquinas, and, therefore, is alien to story. and as we will now see, story's view of man's nature was cast aside by our own supreme court as it exited the 20th century and entered the 21st. how different our constitutional jurisprudence would be today had this not been so. in the 1992 abortion case, planned parenthood versus casey, the plurality opinion famously, or perhaps for some infamously,
asserted the following. at the heart of liberty is the right to define one's own concept of existence of meaning of the universe and of the mystery of human life. beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state. this statement, which justice scalia has called casey's sweet misty of life passage -- [laughter] has been much criticized. indeed, professor ettinger has said this right so called good mean virtually anything. but regardless of whether one believes that the passage -- its fundamental philosophical premise is clear.
the law cannot assume that human nature has an objective reality. the passage does not necessarily deny that there is an object human nature, but it insists that the law cannot reflect a particular conception of human nature. as the casey passage says, each of us is to decide for ourselves what defines our existence and the mystery of life. story, by contrast, believe that man's nature gave rise to specific institutions, duties and principles of morality that can be embodied in law. whereas story's natural law philosophy that deals the truths that transcend individual, casey's dictum presumes an autonomy of self, that makes the
individual the sole arbiter of what is true. moreover, it is important to understand that this passage makes a claim about the nature of liberty and rights. it purports to be construing supreme court precedent, but its language is far broader and its theoretical implications are far more ambitious than the courts descriptions of liberty had been prior to casey. its implications are profound. because if the law cannot protect an odd get the view of human nature, it necessarily protects a subjective one. casey, the us, places enable conception of human nature at the heart of the liberty
protected by our constitution. this view of liberty is also found in the courts 2003 decision in lawrence v. texas, which struck down a texas criminal prohibition on homosexual sodomy. lawrence said that liberty as a general rule should counsel against attempts by the state or a court to define the meaning of relationship, or set its boundaries absent injury to a person or abuse of an institution the law protects. in doing so they discounted the significance of history predating the sexual revolution as when the court said, we think that our laws and traditions in the past half-century are of the most relevance here. all this is quite consistent
with casey's relativism. after all, human nature serves as the basis for human relationships and sexuality, and a subjective view of the former will lead inexorably to a subjective view of the latter. it was no -- it was no accident that the examples story chose to illustrate the connection between natural and positive law was marriage. story's belief in a fixed human nature logically entailed a fixed conception of marriage. having adopted this subjectivist assumption, casey, lawrence extends then to protect a relativistic conception of human sexuality. and now comes the united states -- the united states v. windsor this past term.
winsor inbounded the second of the defense of marriage act that defined marriage as a union between a man and a woman for purposes of federal law. a definition that accords with what i would call the conjugal view of marriage. commentators have noted that it is difficult to determine the precise rationale of windsor, a confusion reflected in the contrast between chief justice roberts' characterization of windsor as a federalism decision, and justice scalia's view that winsor inevitably will lead to the invalidation of states conjugal marriage law. notable scholars such as professor -- interpret winsor as danny for the proposition that the conjugal definition of marriage is per se irrational. and as justice alito's dissent in that case pointed out,
supporters of doma who sounded very much like joseph story, argued that are unchangeable truths about human nature that have implications for sexuality, and mandate the conjugal definition of marriage. this argument has been most prominent advanced by professors george and brian anderson in the recent book, what is marriage? now, if windsor rejects the conjugal definition, and i'm not saying so, that it does as a legal matter, that's a separate issue, then it does so on the basis that there is no objective reality to what marriages. the opinion repeatedly implied that marriage is not a pretty political institution arising from the law of nature.
to use story's words, but is instead subject to change by the state. for instance, windsor says that the conjugal view has been discarded by some states in favor of a new perspective, a new insight, and that these states have enlarged the definition of marriage. but if marriage has a fixed meaning arrived from man's nature, then it cannot be enlarged. if my friend is right about wenches holding, then our constitutional jurisprudence not only protects the rental ballistic conception of marriage, -- wrote to ballistic conception of marriage, it declares there is no objective reality to marriage and that any
contrary view is irrational. this goes along way towards openly declaring that the object of view of human nature is itself devoid of reason. by now it should be quite apparent to all of us that there is a great chasm between justice story's philosophy and that the recent supreme court cases. before elaborate on this point i want to note that my discussion focus on their philosophical assumptions. not on their holdings. i take no position you about the scope of those cases or the application for future ones. i only wish to describe the deep tension that exists between the philosophy under girding decisions like lawrence and windsor, on the one hand, and
justice story's on the other. that tension is manifested in numerous ways, most fundamentally, story would've disagreed with the relativistic assumption of casey. lawrence and windsor. because it is precisely man's fixed nature that makes the natural law universally applicable, as our own declaration of independence makes it clear. go back to story's opinion. in which he declares slave trafficking to be repugnant, to the paternal maxims of social justice based on a natural law philosophy. is that are universal principles of justice, ma as story believed there were, then those universal principles must exist by virtue
of what it means to be a human being. and if there is no such thing as a stable human nature, then there can be no such universal principles. and without universal principles, it makes no sense to speak, as windsor does it, of the need to protect personhood and dignity since these words appeal to concepts inherent in all humans. from story's perspective the court reasoned jurisprudence is at war with itself. it purports to protect universal principles of justice, yet its assumptions undercut the very idea of universal principles. story would also object to the willingness of these decisions to depart from history and
tradition, which he regarded as essential guides for positive law. you will remember that lawrence was content to minimize the importance of pre-sexual revolution history. windsor, after acknowledging that the conjugal definition of marriage has existed literally throughout the history of civilization, minimizes this highly significant fact in order to discuss the new perspective of same-sex marriage. when one reads these passages, one is confident that story would reiterate his warning, and i quote, the rage of theorists to make constitutions of vehicle for the conveyance of their own crude and visionary aphorisms of government requires he guarded against with the most unceasing vigilance, unquote.
story might say that the vigilance he urged has been replaced by the philosophical blindness of abstract theory, detached from experience, tradition, and the very nature of man. as a burkean, story probably would not have been surprised by the court's tendency, like all human institutions, to fall into what he perceived to be grave error. but from story's perspective, the damage these cases have done to the law, however predictable, is compounded by their source. story's faith in the law stem ss from his belief that the common law tradition was the just application of principles to the actual concerns of life. it is one thing for a legislator
who is buffeted by the tumultuous winds of politics and self-interest to work the positive law, it is quite another for a judge who is deliberately insulated from such concerns to break the union of natural and positive law. the former is an example of reason obscured. the latter, an example of reason ignored. allow me to conclude with this thought. in one of the most powerful passages of burke's reflections, the essay is the french revolutionaries for their disregard of their own history. he sketches for the an image of the future they might have had, harvesting the wisdom of their ancestors to produce a future worthy of their ideas, ideals.
as burke said, respecting your forefathers, he would have been taught to respect yourselves. but they had not chosen that path. instead, their extravagant and presumptuous speculations, in burke's words, lead them to despise all their predecessors and all their contemporaries, and even to despise themselves until the moment in which they became truly despicable. burke believed that we are constituted by our past, and by destroying their past, the french have destroyed themselves. justice joseph story poses a similar challenge to us. we must ask whether the denial
of our past is the denial of ourselves. we must ask whether the abolition of nature is the abolition of man. i leave the answers to these questions to your own own reflections. thank you very much. [applause] >> judge, i think that expression by the audience here reflects the quality of that excellent talk today, what i would consider a critical part of the kinds of things that the freedom-based legal scholars
that are here for the conference at the present time have been fighting for, and which gives us a firm basis to look at the constitutional history of the future and the hope that this will perhaps be persuasive to more of your colleagues in the judiciary of the united states. it's now time to turn to the audience. we will open it up to question. if you were resumed the platform here, we will ask the first questions. yes. >> would you wait for the mic about and then just give your name. >> nanny from los angeles d.c. foundation. my question for the judge is, looking forward or looking backwards on your own career as a judge, is there any particular opinions that you take the greatest pride in or anything to like to call to our attention tonight?
>> i suppose the first opinion that would come to mind would be coalition of equality versus wilson. that was the prop 209 case in which the voters of the state of california voted by a very substantial margin, i think 61-39, something like that, to eliminate preferences in state employment and state contracting based on race and other considerations. that case came up through my court, the ninth circuit court of appeals, and we determined that the proposition was constitutional, almost an inculcation of the equal protection clause.
there's some interesting language in that case. manny, you can probably recite parts of it, i don't know, but i certainly remember that case very, very well. i am always reluctant to be too specific about cases because there are a lot of collateral issues and aspects that surround them, but that's certainly one i remember very well. >> judge, thanks so much for a brilliant talk. you mentioned that story himself that he couldn't enforce the natural at times but other times he used it to avoid jurisprudence. how did he negotiate that line, and how do you? >> well, i think as you recall that passage, he identifies that
the law of nations is built upon the natural law, and then he has that exclusion. he says except to the extent that is in effect and modified by consent, or when we are in a situation where it has been modified by the consent of nations, then you follow the law identified by that investment. and that's obviously the same way i approach things. there are laws which i come across quite frequently with which i disagree. i'm not entirely sure that they are based on what i would believe to be supportable premises. but they are binding on me as a federal judge, and it's my job to enforce that law as it is been duly written by the
congress, assuming it's a federal law, and to carry it out. that's the brilliant solution that i think we have in terms of our own system of checks and balances, and as burke pointed out, legislators can make mistakes. and it is not up come in my personal view it's not up to me to correct the mistakes of legislators. i have to follow the positive law and comply with it. >> judge o'scannlain, i'm with the cato institute. let me pose a critical but not a philosophical -- hostile question. >> okay. >> first of all i want to commend you for taking on this subject seriously of the natural law. too few judges do, and it's to your credit that you have done
so. i also didn't want to go back to the distinction you drew at the outset between the natural rights tradition and the natural law tradition, and say that i am with you on casey, but not on lawrence. and here's why. you have spoken of an objective conception of man, and i fully agree with that as the starting point, but i wonder if you have not packed into it more than you can without facing circularity? it has to do with the fundamental and ancient distinction between the right and the good. the declaration of independence speaks of the right to pursue happiness. well, what makes you happy may not necessarily what makes me happy. we have subjected values and just give rights, and that's how it is that one can distinguish
between cases like casey and lawrence. lawrence, let's remember, was justified in the name of dignity, the liberty to pursue your own conception of what is right or good for you, even as you respect the equal rights of others to do the same. so i wonder if you would care to respond to that line of argument? >> i will accept that as fair comment. i think that there will be times when these principles start to collide. i was comfortable with what i said about lawrence, because i felt very troubled by the fact that lawrence was decided pretty
much on the basis of a case decided in the european court of human rights. i didn't think that's what we should go to interpret our own constitution. but i think that reasonable persons will differ when it comes to applying some of these principles, and it could very well be that lawrence is right on the cusp. if you can accept that as the response, i think that's as much as i can say. >> walter weber with the american center for law and justice. again thank you, judge, for your talk. one of the dangers that i see in the ministry of life approach is not unique to that, is that when you have a standard that is
sufficiently broad and subjective like that, while it purports to about the liberties on individuals, i suspect what it really does is a grand tax is the power of judges. in almost any other context outside of abortion and the sexual revolution of related cases, those arguments would not go anywhere. i think that same criticism might apply to things like endorsement tests which ultimately part of judges to decide what is and is not a reasonable opinion on religious question. is your sense, kind of a psychological question. that judges who adopt these positions i assume are not doing this as an attempt to institutional grand i spent but rather to adopt liberty for people. i wonder if it crosses their mind the fact that they are the institutions that will decide which liberties count and which ones are important and which ones are not. so it ends up being only those that respect the judges decide worth putting on his pixar level
as opposed to being yes, we really are going to let everyone decide for themselves that many of the mystery of human life. >> i'm not quite sure what the question to me is. in the doma cases, of course, congress elected a determination of what it perceived to be consistent with the constitution. and, obviously, there was a split of opinion on the supreme court with strong opinions going different directions. again, i apologize for not quite locking onto the essence of your question, but can you help me a little more, or have i said enough? [inaudible]
>> oh, oh, i'm sorry, of course. i think that -- and, frankly, i blame the legislative branch in many respects. so often we get cases that inquire as to interpret statutes that are purposely vague. because the members of legislature, whether it's congress or state legislature couldn't get their act together and couldn't agree on something so they said all right, let's pass this bill and let the courts figured out. i think that's irresponsible conduct on the part of the legislature. of course, once we get it in its our job and i think it's very incumbent upon us to act at least in my philosophical view in a minimalist way. i don't take the position that we have this unbridled authority. i think our authority is limited by article iii and by the
judiciary act, and other constraints that are on us. so anything that does give courts is very wide latitude, i think, i find uncomfortable. >> hi. andrew with the heritage foundation. judge, i think many folks are certainly troubled by a breakdown of education on what the content of the natural law is, so i was just when if you have some recommendations for folks as far as what sources they could go to, maybe educate themselves or others about the natural law? >> the first thing i would recommend is you read the joseph story entry in the encyclopedia. [laughter] is four pages long. it's a good start here. ..