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tv   Abraham Lincoln and the Constitution  CSPAN  July 28, 2016 10:10pm-11:08pm EDT

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university laboratory high school. he worked for the now defunct urbana courier newspaper where i understand he had a friendly rivalry with roger ebert who worked summers at the news gazette in champagne. from champagne mr. will went on to trinity college and oxford university and then on to princeton where he earned his ph.d. and the rest is history. he's undeniably one of america's most prolific and important thinkers and writers. his 12 books include "one man's america" "state craft as soul craft" and "men at work, the craft of baseball." hiss regular column has been indicated by the "washington post" since 1974 and today appears in about 500 newspapers. for 32 years he was a panelist on abc television's "this week." he has been awarded the pulitzer prize for commentary, and the
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champion of liberty award from the goldwater institute among many, many others. ? 1986, the "wall street 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 intellectual contributions and accolades. first is his television fame. i refer here not to fox news or his incredible run on the abc sunday talk show "this week," although i must say i learned a lot about how to think like a lawyer from watching him on that show on sundays in the 1980s and '90s even though he, like abraham lincoln, never attended law school. but more important than that. mr. will is such a household name that like mickey mantle and joe dimaggio he was the subject of a fixation by the crikramer character in an episode of my
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favorite tv show "seinfeld." [ laughter ] second is mr. will's loyalty and dedication as evidenced by the fact that he is a die hard cubs fan. i have tremendous respect and affection for cups fans and i wish him and the cubbies well but i think it only fair to tell him he will have to wait until 2017 since my beloved san francisco giants win the world series in congressional election years going back to 2010. [ laughter ] finally, moving from diamonds to gridiron, he's 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 that if mr. will's observation is true, i very much hope that the converse is also true. for if so, during the past few years, we have been an even greater university than i ever imagined. [ laughter ] it is my great pleasure to welcome mr. will to the podium. before he begins his remarks, let me say that although today
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is super tuesday, a big day in the presidential election campaign, kindly mr. will has framed his remarks around president lincoln and the personal meaning president lincoln has for him so he's not going to do a political roundup in his remarks but after the formal program there will be a q&a and he will take a wide-ranging broad question at that time so let's welcome him on to the stage. [ applause ] >> 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. [ laughter ] with regard to the cubs, it is the case that i only write about politics to support my baseball
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hab habit. but you talk about waiting. i've been waiting 107 years since 1908, the last time the cubs won the world series which was two years before mark twain died. so the 107-year rebuilding effort is over. [ laughter ] now, to the 16th rather than the 45th president. here in central illinois where men are men and i am from people develop or at least in the 1940s and 1950s they did develop what i consider an admirable midwestern reticence about themselves. although i left champagne urban from to go to college in 1958, four months after my 17th birthday, i have never not for a moment ever stopped thinking of myself as a midwesterner. i am with in the words that are
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the title of hamlin gardlin's book published 99 years ago, a so of the middle border. as such, i still adhere to what i consider a midwestern reserve in talking about myself. i retain a midwestern inclination not to share my feelings with others and to thank others for not sharing their feelings with me. [ laughter ] which is why there hangs on any 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's couch with the psychiatrist sitting behind him, pen and notebook in hand and the cartoon's caption, the man on the couch says, "look, call it denial if you like, but i think
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what goes non in my personal lie is none of my own damn business." [ laughter ] however, the dean's agreeable summons to speak at this occasion involved an invitation to be somewhat autobiographical, to lift, as it were, a current and say something about 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 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. during another summer i worked for local building supply company that supplied the concrete for the roof of the assembly hall. however, the largest influence
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on my life's work was and still is abraham lincoln. so 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 steven a. douglas. the event was 1854's enactment of the kansas/nebraska act. it's 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 reverberates in the nation's life not just because the civil war is the hinge of american hirstry and the kansas/nebraska act which repealed the missouri compromise of 1820 was
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unquestionably the spark that lit the fuse that led to war. if the civil war was not in william seward's famous phrase an irrepressible conflict before 1854, it certainly was after that. the missouri compromise had been the work of henry clay. the compromise somewhat diffused the slavery issue and animosities for three decades. it did so by forbidding slavery in the louisiana territory north of a line that included the kansas and nebraska territories. the kansas f/nebraska act empowered the residents of those two territories to decide whether or not to have the institution of slavery.
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the act's premise was that the distilled essence of the american project is democracy and this 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. hi responded to the act with a controlled, canny, patient but implacable vehemence. so the most morally luminous career in the history of american democracy took its bearings from the principle that there is more to america's purpose, more to justice than majorities having their way. considering my or gins sorigin land of lincoln, there's a
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personally satisfying symmetry, which i do not recognize at the time, in the fact 50 years ago i submitted to the politics department of princeton university a doctoral dissertation titled "beyond the reach of majorities, closed questions in the open society." . the title came from the supreme court's 1943 opinion in "west virginia v. barnett," the seconds of the flag salute cases involving public school children who were jehovah's witnesses. as told by professor noah feldeman of new york university law school in his splendid history "scorpions, the battles and triumphs of fdr's great supreme court justices" the two case which is 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
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dobidus a-10-year-old fifth grader, refused to salute the flag during the pledge of allegiance. the teacher, feldman writes, 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 can't have any gods other than jehovah god." at that time, feldman explains, the federal salute closely have semi-abled the straight arm nazi salute except that the palm was to be turned upward not down. a national leader of the jehovah's witnesses had recently given a speech denouncing the nazi salute and several witnesses' children around the country had come to the
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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, the school district changed saluting the flag from a custom to a legal duty and the children were exspe expelled from school. well, their case wednesdayed its way to the supreme court as war clouds lowered over the world, a context, feldman notes, that 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, just days after nazi troops marched into paris, the court ruled 8-1 that the
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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 and had been born in austria which the nazis had occupied in 1938. as a jew he was anxious to avoid practices that allowed school children to be treated differently because of their religion. the case, "millersville v. gobidus" dealt, he said, with an interest inferior 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
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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 -- choice expressing the will of a 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 toward congress's enactment of the new deal legislation led to his ill-fated attempt to pack, by and large, in the supreme court. the one dissenter in the case was harlan stone who had been appointed by president calvin coolidge who i shall say pa
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parenthetically was the last president with whom i fully agreed. [ laughter ] minersville's flag salute law, wrote stone, was unique in the history of anglo american legislation because it forced the children to express a sentiment which, as they interpret it, they do not entertain and which violates their deepest religious convictions. so deference to the school board's legislative judgment amounted to, said stone, 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 in the 1937, burying in the a footnote. indeed, this became one of the
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most famous and consequential footnotes in the court's history. taking their cue from the court, many communities across america made 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 hear another flag salute case concerning jehovah's witnesses for the purpose of overturning the decision it had reached just 36 months earlier with gobidus. writing for a majority in a 6-3 decision, justice robert jackson, who had not been on the court when gobidus was decided said the following. "very purpose of a bill of
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rights was to withdraw certain subjects from the vicissitudes of political controversy, the place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. fundamental rights may not be submitted to a vote, they depend on the outcome of no elections. first as a graduate student 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 and the role of the court in construing it and what fidelity to democracy
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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 a question that constantly takes new form 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
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does involve what has been called a countermajoritarian 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'll pardon the expression -- [ laughter ] 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 to be dictated by the plebacitory with the modern presidency.
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this began with the presidency of andrew jackson but did not fully flower until 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 believe 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 untrammelled latitude to translate that will into policies. the two-fold 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. so we must ask, how aberrant,
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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 governance, is this. as government becomes bigger and more hyperactive, as the regulatory administrative state becomes more per miswhite housely sbr-- promiscuously intrusive in the lives of individuals, only a steadily shrinking portion of what the government does is even remotely responsive to the will of a majority rather, the more government decides that there are no legal or practical limits to its practical scope and
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actual competence the more time and emergency it devotes to serving the interest of minority, often very small minority factions. so paradoxically, as government becomes bigger its actions become smaller, as it becomes more grandiose in its pretensions, its preoccupations become more minute. let me offer a few examples from government's below the federal lev level. ali bocari emigrated from pakistan in 2007, settled in nashville and became a taxi driver. then got a very american idea, 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
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nashville taxis. after one year, he had 12 cars, soon he had 20 and 15 independent contractors with their own cars. and a web site and lots 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 bow carry came to town. those companies in collaboration with older limo companies that resented bocari's competition got the city government's regulators to require him to raise his prices and impose many crippling regulations is. 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
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arrangements which a local grocery store hired her to do. then louisiana's horticulture commission -- yes, there really is one -- pounced. it threatened to close the store in order to punish it for hiring an 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 license floristed who were acting as gatekeepers to their own profession, restricting the entry into their 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
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their government from the menace of unlicensed flower arrangers. elsewhere in louisiana, the monks of st. joseph abbey also attracted government's disapproving quint. in 2005, hurricane katrina damaged the trees that for many years the monks had harvest to finance their religious life. seeking a new source of revenue, they decided to make and market the kind of simple wooden caskets in which the abbey has long buried its dead. the monks were unwittingly about to embark on a career in crime. louisiana has a state board of embalmers and funeral directors. its supposed purpose, when created in 1914, was to combat infectious diseases. it has, however, long since
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succumbed to what is called regulatory capture. that is, it has been taken over by the funeral industry it ostensibly regulates. at the time the monks began making and selling caskets, nine of the boards ten members were funeral directors, one of whose principle sources of income is selling caskets. in the 1960s, louisiana had made it a crime to sell funeral merchandise without a funeral director's license. to get a funeral director's license the monks would have to have had to stop being monks they would have had to earn 30 hours of college credits and to apprentice one year at a licensed funeral home to acquire skills they had no intention of using and their abbey would have had to have been required to become a funeral establishment with a parlor able to accommodate 30 mourners and they
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would have had to install an emba embalming facility even though they only wanted to make rectangular wooden boxes and not handle cadavers. now, the law requiring this rigamarole served no health or sanitary purpose. louisiana does not stipulate casket standards or acquire that burials be done inn caskets. further more, they can buy caskets from out of state from, for example, amazon, which sells everything. [ laughter ] obviously the law that was brought to bear against the monks was an instrument of unadulterated rent seeking by the funeral directors to protect their casket-selling tar kel. rent-seeking occurs when private interests bend government power to their advantage. in order to confer favors on themselves, often by imposing impediments on actual or
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potential competitors. now you may well be thinking that i have wandered far from the kansas/nebraska act and you may be wondering what all this has to do with abraham lincoln and with 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 consigned her to die in poverty and the government action that blocked the monks from supporting themselves by making and selling wooden boxes, all these actions and thousands like them from coast to coast should be but usually are not considered unconstitutional.
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they should be struck down even though they have issued in majoritarian processes, from elected officials and from regulatory agencies created by elected officials. they should be struck down as violations of a natural right, the right that lincoln understood as the 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 to economic liberty. but laws proliferate today because courts have long since -- since the new deal -- stopped doing their duty to defend this economic liberty against the rent-seeking enemies. the problem began in louisiana 16 years before the monetary was founded in 1889. it began across lake
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pontchartrain from the monastery in new orleans. that city rewarded rent-seeking butchers a lucrative benefit. the city 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 citizenship says "no state shall make or enforce any law which shall abridge the
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privileges or immunities of citizens of the united states. the court construe it had 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 short hand for the full panoply of rights of national citizenship, particularly for the benefit of the newly freed slaves. interit the tently 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
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that if a government stipulates a reason, any reason, for a law or regulation that burdens economic activity or if the court itself can even imagine on the legislatures behalf a reason for the law even if the law or regulation reeks of rent-seeking then the court should defer to the elected legislature, elected city council or other majoritarian ins thugs is the ultimate source of the law or regulation. indeed, in 2004 the 10th circuit court upheld a notably lewds you oklahoma law requiring online casket retailers to have funeral licenses. to obtain such licenses, applicants are required to take several years of course work, to serve a one-year apprenticeship, to embalm 25 bodies and take two
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exams. for online sellers. upholding this travesty of an oklahoma law, the court wrote with breezy complacency that, and i quote, "while baseball may be the national past time of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored past time of state and local governments." the court did not say but 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 simple-minded to think that there is a majority support for
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or majority interest in or even majority awareness of even a tiny fraction of what modern governments do in dishing out advantages to economic factions. does anyone really think that 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 people from louisiana give a tinker's damn about who sells caskets or arranges flowers in the second and more fundamental fallacy behind a passive judiciary deferring to majoritarian institutions 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 -- by an
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admittedly circuitous route -- back again to 1854 to the kansas/nebraska act and to lincoln's noble recoil from the idea of popular sovereignty in the territories regarding slavery. that recoil propelled lincoln from semiretirement from politics and into a debate that still reserb rates. lincoln's recoil against the idea of untrammelled majorities produced the most luminous public life in our nation's history and i believe in world history. for many years and for several reasons many of my fellow conservatives have unreflectively and imprudently celebrated judicial restraint. for many years i, too, was guilty of this. the reasons for this include an understandable disapproval of some of the more free-wheeling constitutional improvisations of the warren court and the
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reasonable belief that law school reviews. they do short shrift to conservatism. it is, however, high time 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 the conservative populist temptation. conservatives are hardly immune to the temptation to pander, to preach that majorities are virtuous and that the things legislatures do are necessarily right because they reflect will of the virtuous majority. however, the essential drama of democracy derived from the inherent tension between the
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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. timothy sander if of the goldwater institute in phoenix in his book "declengss of the constitution" rightly emphasizes that the declaration is not just chronologically prior to the constitution, it is logically prior. because it sets the framework for reading the constitution, it is the constitution's conscience. by the terms with which the declaration articulates the constitution's purpose, the purpose is to secure an alienable and natural rights.
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the declaration intimates the standards by which to distinguish the proper from the improper exercises of majority rule. freedom rightings sandifer, is the 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 been to reverse this by giving majority rule priority over liberty when the two conflict as they inevitably and frequently do. this reflects the progressive belief that rights are the result of government, that they are spaces of privacy that government has chosen to carve out and protect. if the sole or overriding goal
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of the constitution can be reduced to establishing democracy and if the distilled essence of democracy is that majorities shall rule in whatever sphere of life where majorities wish to rule then the court is indeed a dooef yent institution. but such a reductionist understanding of american constitutionalism is passing strange. it is excessive to say as often has been said that the constitution is undemocratic or anti-democratic or anti-majoritarian. it is not, however, too much to say that the constitution regards majority rule as but one component in a system of liberty. the principle of judicial restraint distilled to its essence frequently is the principle that an act of the government should be presumed constitutional and that the party disputing the acts's
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constitution bears the heavy burden of demonstrating the act's unconstitutionality beyond a reasonable doubt. the contrary principle that i will call will call judicial engagement is that the judiciary's principle duty is the defense of 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 for the exercise of an enumerated power. a state or local government can dispatch the burden by demonstrating that its act is within the constitutionally prescribed limits of its police power. judge don willett of the texas
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supreme court has addressed and largely dissolved the supposed counter majoritarian difficulty. there are, he says, two different but not equal majorities involved. he begins as judicial review began in 1803 with marbury v. madison in which justice marshall wrote, "the powers of the legislature are defined and limited and that those limits may not be mistaken or forgotten the constitution is written." in distinguishing between proper judicial deference to legislative majorities and dereliction of the judicial duty to police majoritarian excesses, willett says, "in our democracy the legislature's policy making power though unrivaled is not unlimited. the constitution is supreme and
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desirable is not a synonym for constitutional." although the political branches decide if laws pass, it is for courts to decide if laws pass 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 supermajority against with other majorities must be measured. the supermajority of those who wrote and ratified the constitution. there must, justice willett writes in a texas case, "remain judicially enforceable constraints on legislative actions that are irreconcilable
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with constitutional commands." why must? because, says willett, the texas constitution like the u.s. constitution is irrefutably framed in prescription. it declares an emphatic no to myriad government undertakings even if majorities desire them. judicial review means preventing any contemporary majority from overturning yesterday's supermajority that wrote and ratified the constitution. federal judges are accountable to no current constituency but when construing the constitution, today's judges are duty bound to be faithful to the constituency of those that framed and ratified it. this, says willett, is the profound difference between an
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improperly activist judge and a properly engaged judge. the former creates rights that are neither specified in nor 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 dr. stockman declares in henry gibson's play, "the enemy of the people" the majority is always wrong. it is true, that the majority often is wrong and that the majority even 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 to have those borders policed by a
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non-majoritarian institution, the judiciary. so to the question about how lincoln has influenced my life, my answer is this. by his noble rejection of the kansas/nebraska act and the idea of popular sovereignty as 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 construed both affirm that many things should be beyond the reach of majorities. thank you very much. [ applause ]
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>> terrific. very deep and thoughtful. [ applause ] >> that was terrific. it was provocative. thoughtful. and i have a lot of questions myself. i'm not going to ask them. i'm going to open the floor to you all to do that. before i do, i want to give mr. will just a token of our appreciation. a reminder that he's always welcome to come back home and see us any time. >> thank you. >> one more hand for him. >> thank you very much. [ applause ] >> that concludes mr. will's formal presentation. in a moment we'll open the mike to a few questions.
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we don't have a ton of time. we have ten minutes or so for people to ask him appropriate questions and he's been gracious enough to answer a few. if you want to ask one, please come up to the mike here on my right side. >> could they bring up the house lights so we can see? >> is there a way that we can bring up the house lights? >> let there be light. i answered every question. >> let me throw one out then for him. >> here comes a lady. >> better still. >> i collect famous legal footnotes, and you made reference to one and i lost track of where it came from. >> footnote 4. where the supreme court -- i should be here. where the supreme court without justification and text history or logic of the constitution decided that it would now have a
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hierarchy of rights. there would be some that were declared fundamental and others declared inferior. that the court would make that distinction and then invariably has it turns out economic liberty, the liberty for which we fought the civil war, would be an inferior and not a fundamental right. >> good evening, mr. will. my name is paul. i'm a second-year student at college of law and long admired your work. my question to you is about the passing of justice scalia, and particularly i found provocative about your talk of the movement especially in american conservative legal minds for judicial restraint and deference to popular majority legislature.
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as conservatives move away from this being that it is a progressive thought, who especially in the light of passing of justice scalia embodies a jurist thought? >> that's a good question. i'm wearing my federalist society necktie tonight founded in 1982. i assume there's a chapter at the university of illinois. scalia was a very important mentor of this. justice scalia and i -- i knew him before he was on the supreme court. i've known him a long time. we had a robust disagreement that when presidents overstepped their bounds, it's not the judiciary's duty to jerk the leash of the executive branch. his answer was impeach the president.
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i told him i thought that was awkward. and unrealistic. anyway, closest on the supreme court in my view to these things is clarence thomas who has a healthy disregard or at least refusal to genuflect. if it's wrong, get rid of it. he would relitigate the slaughterhouse cases. my son is second-year lawsuit at the university of virginia and i told him his life's work is to get rid of rationale basis test and relitigate the slaughterhouse cases. justice willett of the texas supreme court, clint bolick appointed a few weeks ago from the goldwater institute to the arizona supreme court, they all understand this. we're gaining on the rascals. >> do you want to make your way
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to the mike? >> i can just speak loudly. [ inaudible question ] [ applause ] >> i can tell you the latter in about two hours. i can understand why numerous people in our society are sad, angry, uncertain. for white males without college educations, they haven't had a raise for 40 years. economic stagnation, a sense that life is passing them by, a sense that the system is indeed rigged as in my judgment big government is always rigged in favor of the strong, the articulate and the well lawyered. i understand this.
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what i do not understand is this man as a vessel for those anxieties. he's an anti-constitutional authoritarian. he's in every instinct prepared to double down on what i consider the most disagreeable feature of the obama years which is his executive overreach. and as i said in a recent column, the breadth and depth of his ignorance is the eighth wonder of the world. 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, trump said why she's 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
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government believes that judges and justices sign bills. he is the first presidential candidate in history who would flunk an eighth grade civics exam. it's astonishing. it's going to be a long time putting him back in his cage. >> time for one more? >> one more. >> yes, sir. >> mr. will, i'm a first-year law student. my question since this is about lincoln, do you have a favorite quote of lincoln's that you could share with us tonight? >> favorite quote of lincoln's? well, so many lincoln stories, i'm not quite sure of their providence. but lincoln said, "if i call a
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tail a leg, how many legs does a dog have? five? no, four, because calling a tail a leg doesn't make it a leg." words to live by. thank you. [ applause ] >> one of my favorites, too. thank you all so much for being here. i wish you all a good night. this sunday night discusses his book first dads parenting and
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politics from george washington to barack obama. >> looking at fathering is trying to capture the complexity of human beings and fathering is kind of a way into character and we the end to think that this is the bad guy or this is a good guy, but to see that a lot of these men who had been president had different parts, they were compartmentalized. and some of them could be very laudable and do amazing things and some could be very disappointing and who fooi us. sunday night on c span's q and a. up next jason silver man talks about lincoln and the immigrant describing his even counters with immigrants. mr. silver man concludes these shaped president lincoln's view that immigration boosted economy.
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>> and now for our speaker this evening. jason h. silverman is the professor of history at winthrop university. he has taught for 31 years there. prior to that he taught at yale university for four years. author or editor of 11 books, several of which nominated for national book awards, his recent work "lincoln and the immigrant" is a volume in the series published by southern illinois university press and was released in september. of the 16,500 and counting volumes published on abraham lincoln, this is the first full length study of its kind. dr. silverman received his undergraduate degree at the university of virginia and his graduate degree at colorado state and the university of kentucky. he has received many distinguished teaching awards.
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currently working on a companion volume detailing president lincoln's reputation in 19th century europe. he also served two elected terms on his local school board. so let's welcome professor jason silverman. [ applause ] >> thank you so much. that last part about the eight years on the rockhill school board, forget about all my education. that's when i learned the real meaning of civil war. i have been interested in abraham lincoln since the fourth grade. we had a parents' night which we were going to do silent vignettes.

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