tv Abraham Lincoln and the Constitution CSPAN April 2, 2016 12:00pm-1:01pm EDT
>> coming up next, the second part of a series of lectures on abraham lincoln's legacy. posted by the university of illinois college of law. last week, we heard from washington post journalist bob woodward who reflected on abraham lincoln and the 16th president's influence on his successors. up next, columnist george will looks at judicial review and the constitution. he argues as he put it that , majority rule is inevitable but not inevitably reasonable. a concept he believed lincoln supported. this is an hour. host: a splendid institution where i am honored to serve as dean. i'm pleased to welcome you here to the auditorium where the second lecture in a series,
hosted by the college of law entitled "the new lincoln lectures: what lincoln means to the 21st century." we are privileged to be hearing from a remarkably accomplished and ideologically diverse set of national thought leaders on lincoln's legacy and his continuing relevance 150 years after his passing. as i said when i introduced our inaugural lecturer bob woodward in january, the law school has chosen to focus these lectures on abraham lincoln in part because lincoln undeniably is among the greatest lawyers in america's history. the fact that he assumed many other important roles -- president, legislator, military strategist, newspaper owner, etc. merely adds to his legacy , and his legend. as we know, many of the themes of lincoln's life and his life's work, the treatment of race and
non-citizenship, the relationship between the federal government and the states, the scope of executive power, the interplay between the president and the supreme court, the conduct of a presidential election campaign in a time of bitter partisanship among others dominate discourse today, nearly as much as in lincoln's era. so this remains the right time for all americans to reflect on lincoln's meaning to each of us and all of us. this is especially true for those of us here at illinois. in a real sense, the university of illinois, located between springfield and chicago is mr. lincoln's university. as we and champaign urbana prepare to celebrate our own centennial next year, we must never forget that we were among the first of the land-grant universities created in 1867 by the act signed into law by mr. lincoln five years earlier and
the only one in the original group founded in lincoln's home state. and who better to help us at this time and in this place, think about what we can learn from lincoln as a country and as man -- thanman -- george will, one of the finest minds this region has ever produced. he was born and raised in champaign where his father was on the faculty here. he attended the child development laboratory program in town and went on to graduate from the university laboratory high school. he worked for the now defunct or ,- urbana courier newspaper where i understand he had a friendly rivalry with roger ebert who worked summers in champaign. from champaign, mr. will went on to trinity college and oxford university and then on to princeton where he earned his phd. and the rest as they say is history. he is undeniably one of
america's most prolific and influential thinkers and writers. his 12 books include "one man's america," "statecraft." his regular column has been syndicated by the washington 1974 and today- appears in about 500 newspapers. he was a panelist on "this week." he has been awarded the pulitzer prize for commentary, other awards were editorial writing, among many others. in 1986, the washington journal called him "perhaps the most powerful journalist in america." and the chicago tribune has dubbed him " america's leading poet of baseball. " for me, three things stand out above and beyond his innumerable contributions and accolades.
first is his telephone fame. i refer here not to fox news or on the sunday talk show this week although i must say i learned a lot about how to think as a lawyer by watching him on that show on sundays in the 1980's and 1990's even though he, like abraham lincoln, never attended law school. he is such a household name that like mickey mantle and joe made into a was character in seinfeld. second, is his loyalty and dedication as evidenced by the fact that he is a diehard cubs fan. i have tremendous respect and affection for cubs fans and i , wish he and the cubbies well but i think it only fair to tell him he will have to wait until 2017 since my san francisco giants win in election years.
finally, moving from the diamond to the gridiron, he has reported to have said "it speaks badly for a university to have a good football team." on this point, i must disagree but i should add s'observation is true, i very much hope that the converse is also true. if so, over the past few years, greaterbeen an even university than i could have imagined. it is my pleasure to welcome mr. wills to the podium. before he begins his remarks, although today is super tuesday, kindly, he has framed his remarks around president lincoln and the meaning he has to him so he will not do a political roundup in his remarks. after the formal program, there will be a q and a and he will take wide-ranging broad questions at that time. let us welcome him out onto the stage. [applause]
george will: thank you. thank you very much. thank you very much, dean for that generous introduction that proves that not all forms of inflation are painful. with regard to the cubs, it is the case that i only write about politics to support my baseball habit. you talked about waiting. i have been waiting 107 years since 1908, the last time they won the world series which was two years before mark twain died. that 107 year rebuilding effort is over. now, to the 16th rather than the 45th president.
here in sumter, illinois where men are men and i am from people , develop or at least in the 1940's and 1950's, they did develop what i consider an admirable midwestern reticence about themselves. although i left champaign urbana to go to college in 1958, four months after my 17th birthday, i have never, not for moment, not ever stopped thinking about myself as a midwesterner. i am in the words that are the title of hamlin garland's once famous book published 99 years ago, a son of the middle border. as such, i still it here to what i consider a midwestern reserve in talking about myself. i maintain a midwestern inclination not tohare my feelings with others and to thank others for not sharing their feelings with me. [laughter]
which is why there hangs up on my office door in my washington office in the georgetown section, a framed new yorker cartoon that is my personal proclamation against today's confessional culture. the cartoon depicts a man dressed in a suit and tie and reclining rather stiffly on a psychiatrist couch with the psychiatrist sitting behind him, pen and notebook in hand. the cartoon is captioned and the man on the couch says look, call , it denial if you like but i think what goes on in my personal life is none of my own damn business. [laughter] however, the dean's agreeable summons to speak on this occasion was an invitation that was somewhat biographical. do list as it were a curtain and say something about a formative influence on my thinking and my life's work. one influence on my life's work
i should say was work, some of it related to this university. one of my summer jobs was as a human scarecrow, to chase birds away from an experimental garden plot run here on the campus. back in the day, i was a pin setter -- this was before automation -- in a bowling alley in the atlanta union. another summer, i worked for a local building supply company that supplied the concrete for the roof of the assembly hall. however, the largest influence on my life's work was and still is abraham lincoln. who i have come here to explain why, one of the most important events in my life, one that continues to shape my thinking about the most fundamental problems of the nation's public life is an event that happened , 87 years ago. 87 years actually before i was born. the event was the work of another man from illinois,
senator stephen a douglas. the event was 1854's enactment of the kansas-nebraska act. it is not too much to say that a great question posed by that act continues to reverberate in the nation's life and certainly in my professional life. it reverberate in the nation's life, not just because the civil war is the hinge of american history, and the kansas-nebraska act which repealed the missouri compromise of 1820 was unquestionably the spark that lit the fuse that led to war. if the civil war was not an irrepressible conflict before 1854, it certainly was after that. the missouri compromise had been the work of henry clay. lincoln, in the first of his seven 1858 debates with stephen
douglas called my idea of a statesman. the compromise somewhat diffused the slavery issue and sectional animosities for three decades. it did so by forgetting slavery -- forbidding slavery in the louisiana territory north of the line that included the kansas and nebraska territories. the kansas-nebraska act introduced by senator douglas empowered the residents of those two territory to decide whether or not to have the institution of slavery. the act's premise was that the distilled essence of the american project is democracy and that the distilled essence of democracy is majority rule. and that therefore, it was right that there should be popular sovereignty in the territories regarding the great matter of slavery. people should have the right to vote it up or vote it down.
lincoln disagreed. he responded to the act with patient,led, kenny, but implacable be hermits. -- implacable vehemence. the most morally luminous career in the history of american democracy took its bearing from the principle that there is more to america's purpose, more to justice than majorities having their way. considering my origins in the land of lincoln, there is a personally satisfying imagery which i did not recognize at the time. and the fact that 50 years ago, i submitted to the politics department of princeton university a doctoral theertation titled beyond reach of majorities." the title came from the supreme court's 1943 opinion in west virginia. the second of the flag salute
cases involving public school children who were jehovah's witnesses. as told by professor noah feldman of new york history -- university law school, in his splendid history, the two cases which culminated in one of the most striking reversals by the court in its history began on an october morning in 1935 in minersville, pennsylvania when william -- a 10-year-old fifth-grader refused to salute the flag during the pledge of allegiance. the teacher tried to force his arm up but william held on to his pocket and successfully resisted. the next day his sister lillian, , 11, a fifth-grader, also refused to salute the flag. explaining to her teacher -- the
bible says in exodus chapter 20, that we cannot have any gods other than jehovah god. at that time, feldman explains, the flag salute closely resembled the straight arm nazi waste except that the palm to be turned upward and not down. the national leader of the jehovah's witnesses had recently given a speech announcing the not see salute and several witnesses children around the country had come to the conclusion that lillian explained to her teacher. saluting the flag was idolatry. lillian and william were shunned at school. the family grocery store was threatened with violence and boycotted. school district changed saluting the flag from a custom to a legal duty and the children were expelled from school. their case went to the supreme
court. as war clouds lowered over the world, the context was not favorable to the witnesses. they were pacifists. they had opposed u.s. participation in the first world war and were opposing any u.s. involvement in any war in europe. in june 1940, days after the nazi troops marched into paris, the court ruled 8-1 that the school district had the power to make saluting the flag mandatory. the opinion for the court was written by justice felix frankfurter, a former member of the national committee of the american civil liberties union. he was jewish. he had been born in austria. , which the nazis had occupied in 1938. as a jew, he was anxious to
avoid practices that allowed schoolchildren to be treated differently because of their religion. the case of millersville versus the family said quote -- an an interest in fairy or to none in the hierarchy of legal values national unity is the basis of , national security. frankfurter said his personal opinion was that the school board should allow the witnesses ' children their dissent. he was however as most political progressives had been for many decades, an advocate of judicial restraint regarding the actions of democratically elected bodies. and he thought the court should acknowledge that the elected school board had made a defensible, meaning reasonable, joyce expressing the will of the
majority of its constituents. the eight members of the majority had all been appointed to the court by president franklin roosevelt whose anger , with the court's refusal to be deferential towards congress's enactment of the new deal legislation led to his ill-fated attempt to attack the supreme court. casene dissenter in the have been appointed by president calvin coolidge who i should say , parenthetically was the last president with which i fully agreed. [laughter] minersville's flag salute law was unique in the history of anglo-american legislation because it forced the children to express a sentiment which as they interpreted, they do not entertain and which violates their deepest religious convictions.
so, deference to the school board's legislative judgment amounted to the surrender of the constitutional protection of the liberty of small minorities to the popular will. as feldman says in 1940, the idea that the court should protect minorities from the majority was not the commonplace that it would later become. stone had first introduced it in 1937, burying it in a footnote. indeed, this became one of the most famous and consequential footnotes in court history. taking their cue from the court, many communities across america made the flag saluting mandatory. there was an upsurge of violence against witnesses including that by a mob of 2500 people who burned down the witnesses'
kingdom hall in kennebunkport, maine. 1943, with the world war raging, the court agreed to another flag salute case concerning jehovah's witnesses for the purpose of overturning the decision that it had reached 36 months earlier. writing for the majority and a 6-3 decision, justice robert jackson who had not been on the court when it was decided said the following -- the very purpose of the bill of rights was to withdraw certain subjects from the vicissitudes of political controversy to place them beyond the reach of the majorities and officials and to establish them as legal principles to be applied by the court. fundamental rights may not be submitted to a vote. they depend on the outcome of no elections. first as a graduate student, and
then briefly as a professor of political philosophy, and now for more than four decades as a washington observer of american politics and governance, i have been thinking about the many vexing issues implicated in these two flag salute cases. the issues include the source of american rights, the nature of the constitution, the role of the supreme court in construing it. and what fidelity to democracy requires regarding the rights of majorities. this is why i say that the kansas-nebraska act reverberates in my professional life, it forced the nation and decades later, me to confront to , confront a question that constantly takes new forms but never goes away. it is the question of the limits of our commitment to majority rule. it is the question of how
majoritarian we should be in our public life. this is a question of particular moment here at this distinguished law school because it concerns two questions that are, i hope and assume at the , center of legal education and scholarship here. the first is the nature and purpose of a written constitution. the second is the legitimacy of judicial review and particularly whether judicial review really does involve what has been called a counter majoritarian dilemma. there are those, and they might be an american majority, who believe that majority rule is the sovereign american value that trumps, if you will pardon the expression, all others. they believe that the degree of america's goodness is defined by the extent to which majorities are able to have their way.
such people are bound to believe that it is the job of the judicial branch of government to facilitate this by adopting a modest deferential stance regarding what legislatures do. and regarding what executive branch officials and agencies do. here, judicial deference is said --be dictatorial -- dictated this began with the presidency of andrew jackson but did not fully flower into modern communications technologies especially radio and then , television changed the nature of the american regime by changing the nature of political campaigns and of governance. the current belief is that because presidents alone are elected by a national constituency, they are unique embodiments of the national will and hence should enjoy the
maximum feasible untrammeled latitude to translate that will into policy. the twofold problem is that majorities can be abusive. and some questions are not properly submitted to disposition by majority rule because there are some, actually there are many, closed questions even in an open society. but we must ask, how aberrant, how frequent are abusive majorities? a related, but different question is, when legislatures which are majoritarian bodies act, how often are they actually acting on behalf of majorities? my belief, based on almost a half-century observing washington, the beating heart of american government is this --
as government becomes bigger and more hyperactive, as the regulatory administrative states become more promiscuously intrusive in the dynamics of society and the lives of individuals, only a steadily shrinking portion of what the government does is even remotely responsive to the will of the majority. rather, the more government decides that there are no legal or practical limits to its practical scope and actual competence, the more time and energy it devotes to serving the interests of the minorities, often very small minority factions. so, paradoxically, as government s actionsigger, it become smaller. as it becomes more grandiose in
its pretensions, its preoccupations become more minute. let me offer a few examples from governments below the federal level. this person emigrated to america from pakistan in the year settled in nashville and became 2000, a taxi driver and then got a very american idea. he started a business to serve an unmet need. he bought a black lincoln town car, and began offering cut-rate rides to and from the airport, around downtown and in neighborhoods not well served by national taxis. after one year, he had 12 cars. soon, he had 20 and 15 , independent contractors with their own cars and a website. and a lot of customers. unfortunately, he also had thereby earned some powerful enemies. the cartel of taxi companies had not been able to raise their
rates since he came to town. those companies in collaboration with older limousine companies that presented him competition, called upon the city government regulators to have him raise his prices and impose crippling regulations. another example, sandy meadows was an african-american widow in baton rouge. she had little education and no resources. other than her talent for making lovely flower arrangements which a local grocery store hired her to do. then, louisiana's horticulture commission, if there really is one, pounced. it threatened to close the store in order to punish it for hiring and unlicensed flower arranger. meadows tried but failed to get a license.
which required her to take a written test, to make four arrangements in four hours, the adequacy of the arrangements was judged by licensed florists who were acting as gatekeepers to their own profession. restricting the entry into the profession of competitors. meadows, denied reentry into the profession from which the government had expelled her, died in poverty. but the people of louisiana were protected by their government from the menace of unlicensed flower arranger's. elsewhere in louisiana, the abbey alsoint joseph attracted government's disapproving glance. in 2005, hurricane katrina damaged the trees that for many years the monks had harvested to
finance their religious life. seeking a new source of revenue, they decided to make and market a simple wooden casket in which the abbey has long since buried it dead. the monks were unwittingly about to embark on a career in crime. louisiana has a state board of enbalmers and funeral directors. its supposed purpose when created in 1914 was to combat infectious diseases. it has however long since become to what has called regulatory capture. it has been taken over by the funeral industry it ostensibly regulates. at the time the monks began making and selling caskets, 9-10 -- nine of the 10 board members were funeral directors, one of whose principal income sources was selling caskets. in the 1960's, louisiana had made it a crime to sell funeral
merchandise without a funeral director's license. to get a funeral directors license, the monks would have to they would've had to earn 30 hours of college credits and to a apprentice one year at a licensed funeral home to acquire skills they had no intention of ever using. and their abbey would have to become a funeral establishment with a parlor able to accommodate 30 mourners and they would've had to install and embalming facility even though , they only wanted to make rectangular wooden boxes and -- and not handle cadavers. the law requiring all of this served no purpose. louisiana does not stipulate casket standards or even require that the burial be done in caskets.
furthermore, louisiana citizens can buy caskets from out of state from amazon, which sells everything, for example. [laughter] obviously, the law that was brought to bear against the monks was an instrument of unadulterated -- by the funeral directors to protect their casket-selling cartel. when private interest bend to government howard to their advantage in order to confer favors on themselves, often by orosing impediment on actual potential competitors. now, you may well be thinking that i have wandered far from the kansas-nebraska act and you may be wondering what this all has to do with abraham lincoln and the work of a political commentator. here is my answer. the government action that was used to prevent a pakistani immigrant from entering into his chosen profession of operating a transportation company, and the
government action that blocked an aspiring flower arranger from exercising her skill and can find her to die in poverty, and the government action that blocked the monks from supporting themselves from making and selling wooden boxes, all of these actions and thousands like them from coast to coast should be, but usually are not, considered unconstitutional. they should be struck down even though they have issued from majority principles. they should be struck down as violations of a natural right, the right that lincoln understood is a right to free labor, the right that was of course at the core of the slavery crisis. it is the unenumerated, but
surely implied constitutional right for economic liberty. the laws of bridging that right survive and proliferate because courts have long since, since the new deal, stopped doing their duty to defend economic liberty against risk-taking enemies. in a sense, the problem began in louisiana 16 years before the monks monastery was founded in 1889. it began across the lake from the monastery in new orleans. that city had rewarded some rent-seeking butchers a lucrative benefit. the city had created a cartel for them by requiring that all slaughtering be done in their slaughterhouses. some excluded butchers went to court. all the way to the u.s. supreme court. challenging this law.
they lost when, in the 1873 slaughterhouse cases, the court in a 5-4 decision upheld the law , that created the cartel. in doing so, the court effectively expunged a clause from the 14th amendment. the clause, written to nationalize the rights of american sedition says, " no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the united states. " the court construed the phrase -- privileges or immunities very narrowly. so narrowly that it disappeared from constitutional law. a melancholy fate for a phrase that, was as i say intended as a , shorthand for the full panoply of rights of national citizenship, particularly for the benefit of the newly freed slaves.
intermittently since then, and steadily since the new deal, courts have abandoned the protection of economic rights including the fundamental right , to earn a living without arbitrary and irrational government hindrances. instead, courts have adopted the extremely permissive rational basis test for judging whether government actions are permissible. courts almost invariably hold that if a government stipulates our reason, any reason, for a law or regulation that burns burdens economic activity, or if the court itself can't even imagine on the legislature's behalf, a reason for the law, even if the law or regulation reeks of -- then the court should defer to the elected legislature, elected city
council or other to two shins that is the ultimate source of the law or regulation. indeed, in 2004, the 10th circuit court upheld a notably ludicrous oklahoma law requiring online casket retailers to have funeral licenses. to obtain such a license, applicants are required to take several years of coursework to serve a one-year apprenticeship to embalm 25 bodies and take two exams. online. upholding this travesty of an oklahoma law, the court wrote with complacency, that, and i quote, "while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remain the
favorite pastime of state and local government>" ." the court did not say what it might as well have said -- majority rule requires that courts only reluctantly and rarely engage in the judicial supervision of democracy because majority rule is the essence of the american project. there are, however two things wrong with this formulation. first, it is utterly unrealistic and simpleminded to think that there is a majority support for , or a majority interest in, or of, a majority of awareness what modernion of governments do in dishing out advantages to economic factions. does anyone really think that this anyone really think when the nashville city government dispenses favors for the taxi and limo cartels, it is acting
on the will of the majority of the city's residents? can anyone actually believe that a majority of louisiana citizens give a tinker's damn about who sells caskets or arranges flowers? the second and more fundamental fallacy behind a passive judiciary is this -- we know, because he said so, clearly and often, that lincoln took his political bearings from the declaration of independence. which brings me, and -- by an admittedly circuitous route back to 1854, and the nebraska-kansas act and to lincoln's noble , recoil from the ideal of popular -- in the territories regarding slavery. that recoil propelled lincoln from semiretired from politics to a conversation that is still
going. lincoln's recoil against the idea of untrammeled majority produced the most luminous public life in our nation's history and i believe in our , world history. , and for several reasons, many of my fellow conservatives, have on reflectively and imprudently celebrated judicial restraint. for many years, i also was guilty of this. the reasons for this include include an understandable disapproval of some of the more freewheeling constitutional improvisations of the war in court and the reasonable belief that the law schools that train future judges and the long , reviews that influence current judges are on balance not balanced. they give short shrift to conservatism. it is high time, however for , conservatives to rethink what they should believe about the role of courts in the american regime. another reason many conservatives favor judicial
deference and restraint is what can be called "a conservative populist temptation." conservatives are hardly immune to the temptation of pandering, to preach the majorities are presumptively virtuous and the things that legislatures you are -- that legislatures do our necessarily right because they reflect the will of the virtuous majority. however, the essential drama of democracy to rise from the inherent tension between the natural rights of the individual and the constructed right of the , community to make such laws as the majority deems necessary and proper. natural rights are affirmed by the declaration of independence. majority rule, circumscribed and modulated, is constructed by the constitution. some of these -- the goldwater
institute in phoenix in his book "the conscious of the constitution" -- it is logically prior. because it sets the framework for reading the constitution, it is the constitutions' conscious. by the terms in which the constitution articulates the constitution's purpose, the purpose is to secure unalienable and natural right, the declaration intimate the standards by which to distinguish the proper from the improper majority rule. freedom is a starting point of politics. government's powers are secondary and derivative and therefore limited. liberty is the goal at which democracy aims, not the other way around.
the progressive project, now entering its second century, has tried to reverse this by giving majority rule priority over liberty. when the two conflict, as they inevitably do, this reflects the progressive belief that rights are the result of government -- that they are spaces of privacy that the government has chosen to carve out and protect. if the sole, or overriding goal of the constitution can be reduced to establishing democracy and if the distilled , essence of democracy is that the majority should rule in whatever sphere of life that majorities wish to rule, then the court indeed is a deviant institution. such a reduction understanding of american constitutionalism is passing strange. it is excessive to say as often as has been said that the
constitution is undemocratic or anti-democratic, or anti-majoritarian. but one component in a system of liberty. the principle of judicial restraint distilled to its -- restraint is still to its essence, is frequently the principle that an act of the government should be presumed constitutional. and that the party disputing the act of the constitution bears a heavy burden of demonstrating the acts of unconstitutionality beyond a reasonable doubt. the contrary principle that i will call judicial engagement is that the judiciary's principal duty is to defend liberty and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the constitution's architecture, the
purpose of which is to protect liberty. the federal government can dispatch this burden by demonstrating that its action is both necessary and proper with the exercise of an enumerated power. a state or local government can dispatch the burden by demonstrating that it's act is within the constitutionally prescribed limit of its police power. judge on the texas supreme court has cogently addressed and , largely resolved the supposed counter majority difficulty. he says there are two different but not equal majorities , involved. he begins as judicial review began in 1803 with marbury versus madison. in which justice marshall wrote
, "the powers of the legislature are defined, and limited, and that those limited limits may not be mistaken or forgotten. in distinguishing between proper judicial deference to legislative majorities, and the dereliction of the judicial duty to police majority excesses, he says, in our democracy, the legislature's policymaking powers are unrivaled and not unlimited. the constitution is supreme. and desirable is not a synonym for constitutional." although the political branches decide if laws passed, it is for courts to decide if laws passed muster. so, if judicial review means anything, it is that judicial restraint does not allow everything. to avoid a constitutional tipping point where adjudication
more resembles abdication, courts must not extinguish constitutional liberties with nonchalance. this requires fidelity to the super majority against what other majorities must be measured. the super majority that road and -- majority that wrote and ratified the constitution. they must remain judicially enforceable constraints irreconcilable with constitutional commands. why must? because the texas constitution like the u.s. constitution is irrefutably framed in prescription. it declares an emphatic no to myriad government undertakings ies desiremajorit
them. judicial review means preventing any contemporary majority from overturning yesterday's super majority, the one that wrote and ratified the constitution. federal judges are accountable to know current constituency, but when construing the constitution, today's judges are duty bound to be faithful to the constituency of those who framed and ratified it. et, is the will profound difference between an improperly activist judge and a properly engaged judge. the former creates rights that are neither specified in your implied by the constitution. the latter defends rights the framers actually placed there , and prevents the elected branches from usurping the judiciary's duty to declare what the constitution means and implies.
it is not true that, as stockton declares in the play -- the enemies of the people, the majority is always wrong. it is true that the majority often is wrong. and that the majority even when when wrong often has a , right to work its will anyway. often, but not always. the challenge is to determine the borders of the majority's right to have its way, and have those borders policed by a by a majority institution, the judiciary. so, to the dean's question about how lincoln has influenced my life, my answer is this. by his noble rejection of the kansas-nebraska act and the idea that popular sovereignty is the way to decide the question of slavery in the territories. lincoln concentrated my mind on two timeless truths.
one, is that majority rule is inevitable, but not inevitably reasonable. the other is, that moral reasoning, properly done and the , constitution properly affirm that many things should be beyond the reach of majority. thank you very much. [applause] host: that was terrific, it was provocative, thoughtful. i have a lot of questions myself but i will not ask them.
i will open the floor to all of you to do that. i do want to give mr. will, a token of our appreciation and a reminder that he is always welcome to come back home. so, one more hand for him. [applause] host: that concludes the formal presentation. in a moment, we will open the microphone to a few questions. we don't have a ton of time but maybe about 10 minutes for people to ask appropriate questions. he has been gracious enough to answer a few. so, if you want to ask one, pleas come up to the microphone on my right side. george will: can we bring up the house lights, so we can see? let there be light.
host: here we go. >> you made reference to a legal footnote. i lost track of where it came from. footnote 4. where the supreme court without justification decided it had a hierarchy of rights. there would be some declared fundamental, and others declared inferior. court would make that distinction, and that empirically, as it turns out, economic liberty. basically, the liberty for which we thought the civil war would be an inferior, not a fundamental right.
>> good evening. my name is paul. i'm a second year law student. i have long admired your work. my question tonight's the passing of justice scalia. the movement on american conservatives. and judicial restraint in reference to popular majority. it is a product of progressive thought. who embodies a jurist thought? george will: i am wearing my federalist necktie. [laughter] a society found in 1982.
i soon it is a chapter of the university of illinois. scalia was a very important mentor and progenitor of this. but justice scalia and i, and i knew him before he was on the supreme court. he and i had a robust disagreement that when presidents overstepped their bounds, it is not the judiciary's duty to jerk the leash of the executive branch. his answer was to impeach the president. i told him i thought that was awkward. [laughter] and unrealistic. but anyway, the closest on the supreme court to my view on these things is clarence thomas. he has, i think, a healthy genuflect in front of stereotypes.
if it is wrong, get rid of it. he would relitigate the slaughterhouse case. my son is a second year lost in at the university of virginia and i have told him that his , life's work is to get rid of the rational base test and -- rational basis test and relitigate the slaughterhouse case. clint bolick, just appointed a few weeks ago to the arizona supreme court. they all understand this. we are gaining on the rascal. >> you want to make your way to the mic? [indiscernible] [laughter] [applause] george will: i can tell you the latter in about two hours.
i can understand why numerous people in our society are sad, angry, and uncertain. for white males without college educations they have not had a , raise for 40 years. economics and nation, a sense of like the passing them by and , that the system is indeed rigged. in my judgment, big government is always rigged in favor of the strong, and the articulate. i understand this but what i do , not understand is this man as a vessel for that anxiety. he is an anti-constitutional authoritarian. he in every instinct prepared to double down on what i consider the most disagreeable feature of the obama years which is his , executive overreach. said, in aas i
recent column, the breath and depth of his ignorance is the eighth wonder of the world. [laughter] to take one example, his sister is a federal judge. in defending her, not that anyone attacked her, but in defending her in the houston debate last thursday, donald trump he said why, she is so , conservative, she signed a bill that justice alito of the supreme court also signed. this man who proposes to head the executive branch of our government believes that judges and justices signed bills. he is surely the first presidential aspirant in american history that would flock and eighth grade civics exam. it is astonishing. it will be a long time putting him back in his cage.
post: time for one more? [indiscernible] george will: well, many lincoln stories -- i am not sure of their providence, but one of my favorites is lincoln supposedly said "if i call a tail a leg, how many legs does a dog have? five? no, because calling a tail a leg does not make it a leg. words to live by. [laughter] [applause]
host: thank you all so much for being here. i wish you all a good night. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> visit our website at www.c-span.org/history. road to the white house rebound -- though to the white house rewind. tonight on c-span, the supreme court cases that shaped our history come to life with the c-span series "landmark cases, the store supreme court decisions." constitutional
dramas behind when of the most significant decisions in american history. >> john marshall said this is different. is a politicaln document. it sets up the political structures. it is also a law. if it is a law, we have the courts to tell us what it means. thatat sets them apart is it is the ultimate anti-presidential case. >> who should make the decision about the debates? the supreme court said they should make the decisions of those debates. >> we will get the case that wall tell the courts forcible mobile of people of japanese dissent. tonight at 10:00 eastern on c-span and www.c-span.org. next on american history tv, from a recent abraham lincoln mcdermid is the
author of "mary lincoln, southern girl, nor the woman." this took place at a theater in washington d.c. and is about 50 minutes. >> mr. president. [laughter] willard.e is bob i have been president of the abraham lincoln institute in the past. i am delighted to be at the symposium. i have attended almost all of them. it is more challenging these days after a half a century living in and around washington. my wife and i are happily in southern california. i mention that because in the past couple of weeks, the eyes of the nation were focused on the reagan presidential library just a few minutes away from our new home. as america said goodbye to first lady nancy r