matter. should student-athletes be paid? wants to take that one. at it is an easy question. >> great to be with you, agreed to be with everyone else here. absolutely not. they are in many ways, receiving a lot of benefits now. when usa today survey a few years ago valued at $100,000 a year in terms of coaching exposure, training, all the things in addition to receiving first-class education at the finest universities on earth. the idea that athletes, student athletes need to be paid, i am sure we're going into that over the next hour-and-a-half or so. for me, i throw a couple spots out there to get rolling on

this, no-holds-barred discussion we are planning to have. are we seeing the field hockey player? if not why not? there's a law known as title 9 signed by richard nixon june 23rd, 1970, to changing the playing field of america. the most important honor of our country, we have just begun to see it works its magic. it is still in its infancy. if you have a daughter or girl next door or granddaughter you know how important that lot is and wait until these women are running for president in universities and businesses in 2013, 24 become a 2015 and onward. we ignore that law unless we go to an economic model for college athletics the lead the university and academic settings. if we go there, i think my overall feeling is the notion of be careful what you wish for. i am not sure we would like what we create if in fact we start

paying athletes and have a whole separate proles. end loose what has been such the popular pieces of all our lives which is the college sports experience playing or watching or being on campus, cheering for student-athletes many of whom are doing and the right way are going to graduate and going to give back to university the next 50 or 60 years in those communities. are there problems in college sports, you bet the paying athletes is not the way to solve them. >> let's go down the line. >> i agree conceptually with christine. when she speaks of pay nestle to depends what you mean by paying. i look at the relationship, just came to my mind, no more than a beneficiary. nevertheless when you look at the amount of dollars coming in based on the exploits of the student athlete should there be some balance in the equities? absolutely.

but are they in the form of salary? should the whole relationship be in the form of terms, wages, conditions and benefits which seem to be more the idea of employee as opposed to beneficiary, then i would say no, we need to take a look at how to balance those equities without making it that your employer/employee relationship. i don't know if people are aware of what happened yesterday, the n.c.a.a. relying on the fair labor affairs standards labor act, why student athletes under scholarship by not paid minimum wage which is another issue since other work study situations, a this students are paid the minimum wage and are able to gain some kind of paycheck. horticulture in college sports and what we loved about college

sports is under assault by those who always talk about getting paid and it focused on young people. i can't tell you how many times i spoke to people who where athletes and want to become college and professional athletes and always talk about this idea of getting paid without understanding the true value of the scholarships and grant. we can talk about any number of things with regard to the benefits of student athletes besides the education, board books and tuition reform will also balance the equities payment based on the right to publicity. also medical benefits. what number do we put on the medical benefits to -- hopefully reform will continue those benefits beyond eligibility. we talk about such things as getting an education. if you haven't received a degree

through your eligibility, so many schools moving in the direction of providing those opportunities way beyond eligibility. finally i would like people to understand true value, scholarship athletes versus non scholarship students. we are talking $29,400 in debt, what most students who have come out of school, seven out of ten who come out of school, that is the average debt they are carrying. to meet the real value of the education and scholarship the student athletes are receiving hasn't been articulated well enough and has allowed those who assault that particular culture to grab a foothold in the argument and that needs to be changed. in this end as i said before i totally do not agree on the

employer/employee relationship and benefactor beneficiary even though there's a quid pro quo, symbiotic relationship, certainly is one that we need to look at strongly and put in context so we can make a definition as far as what student athletes mean to an institution. >> i know where this is going. >> i will take this one step further because i couldn't agree with those speakers who made a point and i would always stand in line with what you heard in the panel before this one and that is whatever has to be done to maintain sustainable environment of the uniquely american culture of attacking amateur sports and all that positive that has been yielding over a century and a half century once he became multi gender by adding title 9 and

multi-ethnic, serious work in the civil rights movement and the 60s. the benefit to our society is boundless because of the concept of paying for someone's education because they have unique talent end making it an inclusive environment. having been an athlete, having been a coach and a senior official at the university of southern california that worked specifically with the olympics board and then becoming the athletics director at arizona state where i was overseeing the entire enterprise, getting close to the football and basketball program coaches, what has been cultivated over time is a beautiful marriage if you will with in an athletic program that yields incredible citizenry for the united states. in addition to everything that has been said i don't want to be redundant, but we have not done a good job of expounding on the benefits that already exist in this rather remarkable and

unique american system that i believe at all costs should be sustained and by paying athletes you are creating an unsustainable environment. i don't think there's any doubt about that. you won't pay time and not be able to pay mary. of you think you are you are naive. you won't be able to do it. there is no mary out there that is going to tolerate that. anything that would render this delicate situation we are already in financially and make it even a middle bit wobbly her by universities, trying to make sure as they invest in these athletic programs continue to flourish i would raise my hand and vote against paying athletes ten times over. >> it is not only agenda related issue but it is a question of paying the football player and basketball player and not playing the tennis player or rowers so there's that issue as well. you come at this from a number of perspectives, what is your

thought on this? >> it should be paid. let me explain. if you were going to start over and rebuild college sports in america first of all you don't want to put it on your universities. we are the only nation that has done this. we have the tail wagging the dog but more importantly if you have a system generating billions of dollars you would certainly address the equities for the players. we were teammates in maryland and got $15 a month in laundry money, so did every other athlete. when i introduced legislation in 1991 i created a reform bill providing a $300 stipend for every athlete. i do think you could create equities across the board for every athlete where database excitement that allows them to have a life. i think there's plenty of money

in college sports if you did redistribute them. the fact is just a matter of time before the system blows up because there is so much going on the system will blow up and be back here sitting here saying should the players receive more? everybody says they get an education but i have yet to see one study, one strong study that shows meet across division i kids leaving ten years actors they have left what has happened to them. on would like to see that because they get an education, i would like to see what type of life kids who didn't go into the nba are living and that would be the ultimate proof. i think they deserve equities no matter what you call it. don't need to be employees. there's a way to bring them a piece of the pot. >> i don't disagree with the overall goal of allowing

financial aid to expand to the point where the true costs of participating in a college sports -- we have been on record for a long time especially those in the well resources conferences that is where we need to be. there were votes on 6 years ago but because of the unwillingness of our overall governing body we couldn't get to the consensus and today we are faced with this in court. the whole idea of remuneration for someone who is the age group we were talking about 17 to 23-year-olds who often make a decision to go to an institution for various reasons and once we talk about the college experience sports is only part of it. the college experience begins in the admissions office. they have to meet some criteria and agree to some benchmarks and frankly it is a volunteer tight

of situation. no one is twisting your arm to embark upon division i athletics requires. it is not easy and not for everybody. if it was, everybody would be doing it freely but they come with a gift, they do have to add academic goals and standards and progress for a degree in order to maintain eligibility. it is not remuneration and it is not a for play. the amount of dollars we generate, everybody mixes revenue with free cash flow. what we do with revenue goes back against the experience for these young people. there are some who leave college, on a caution -- partial scholarships they could leave with some debt which is why we are wanting cost of attendance, that delta to be able to be covered by will resources institutions if they can and will be permissive legislation

but the notion that this is a pay for play activity flies in the face of what it is really about. back to the 50s, when bill will got his job in texas in 57 went to the athletics council in texas and said i got my coaching staff and i want one more coach and they said what do you need another coach for? i don't want this coach to know anything about football. i want this to be my academic -- called him the brain coach. this was in 1957. and he went to the athletics kelso comprised of faculty and donors and alumni. he said it does mean absolutely no good to bring these young men in to this college setting and not have them advance to a degree. they will be playing football. what matters to me is that they finish with a degree and again go forward how many years later we talking the same equation.

you get to represent your institution in sports. >> i have the benefit of going last and agreeing with everyone at least in part with each if not all, with some. i would position myself somewhere between the two ends. one is saying reflecting on the last panel who at least was entertaining. don't know if we can live up to that, they concluded with making comments about how we seem to be focused on the 1% of student-athletes who bring an awful lot of talent to the table and matriculate to the nba and the nfl etc. and we sort of are ignoring the 99% of the others. not having said that, i will defer to my elders, have always fought the we should have something like that. not sure why it ended back then but we have young men and women

who could use more to function around our campuses and college towns. having said that, it isn't just personal. there are thousands of thousands of young boys and girls who don't get to play at the b.c. s level or even the f c s, would give their left arm to have the privilege of doing what other people do on college campuses so i am somewhere between everyone. i do believe in the word equities which was used previously. that is a good term. at the same time i believe some of the individuals on the previous panel were talking about what numbers you put on the current rides. i heard 60, 70, $80,000 by the time you factor in -- chris is the expert on this. everything from here to travel to medical to all the things we do compensate our young people

with. we will flesh these points out as we go along. >> that leads to the next question which is what is the cost of attendance. how do we quantify what a student athlete should get? we know what they do get now depending on what university, you could tell me what that figure is but what should the figure be? what should it include and what should it not include? anybody have any thoughts on that? >> since tom brought up the $15 plunge. >> did he borrow some from you? >> we had a lot of dirty laundry, $15 a month. anything from buying a record or having an opportunity to go on a date once a month for those who didn't have any other resources but to me again one of the things we need to focus on when

we talk about subsidizing, the difference is we talk about need. so many times we think across-the-board there are student athletes who don't have that need for those dollars be it because they come from a family of means or they have other means. in the end, i think it is being a part of the university community, being on a level that makes you feel like you are part of this community whether it is being able to go to a new the or being able to do something that the average student is capable of doing and i think we lose sight of the fact that it is not just about when people make the argument paying for services rendered. this is about making new feel you are part of the university instead of isolated and something different. can i itemize and categorize

each of those things? not necessarily, but the supreme court said you know it when you see it and understand it but going back to the situation where you have administration and other institutions speaking of their inability to be able to put those resources forward, i still believe if it is need based across the board and in all of athletics it is something that is affordable and certainly necessary. but overall i want to get to something tom said quickly. when you follow the athletes and what they do ten years from now that is something else we haven't focused on. that is learning to develop some type of advocacy, and advocates for themselves or others, being able to get the education they truly want. the impetus is on the student athlete and the student athlete

has to be an advocate for their education so if you are practicing beyond the time you need to study if you are going to miss an exam or be placed at a disadvantage you should be able to say that and be able to attend the class with out fear of retribution or retaliation which unfortunately i believe exists. >> that is a bigger issue because -- >> that is something that has to be talked about it becomes the responsibility of the student athlete. if you take away that fear to be advocates for themselves. some say they are not capable of doing it and i disagree because athletes are not getting enough playing time. they will be the best advocates they could possibly be. it is all a question of desire. >> if you were going to start over again which i am going to suggest, in an ideal world, you

would want in your national interest to have a lot of minor sports because that is good for your olympic movement. that is how young people around the world in countries like third world nations by having a strong olympic movement, very important and it is very important we have strong tidal ix so if you are starting with that six i say we need broad programs on our college campuses. you look at equities and say look at this situation, look at what the n.c.a.a. takes down in administrative costs. you are talking hundreds of millions of dollars and a few had to rationalize the system over again and create equities certainly players across the board would get their full cost and a little money to live on. that is looking at the situation, the average football coach needs a fix when the

president is making 300. the highest state employer across the country, i am for paying coaches lot of money, big-time college sports, i am for big-time college sports but the money needs to be handled differently. players have equities, minor sports are important, olympic efforts or gender equity efforts. that is an ideal way to look at it. >> how realistic is that when there is such competition, when winning is so important? >> when i played in maryland the coach made $20,000, winning was just as important. the idea that there is a cognizant connection between winning and money is ludicrous but i tell you, at how realistic that happens, i will tell you today in there will be legislation introduced in the lame duck session to establish a

presidential commission to study intercollegiate athletics and it is going to model what happened with gerald ford in the olympics effort in the 70s and there are going to be some serious efforts to try to take a look at this and ask the big question, what is in our national interest as a country and those are the things we need to think about. >> you are advocating for olympic sports as a component of the culture to make our society better. >> yes. >> this is still a big business whether we like it or not. when you have a committee like that and politicians on board making decisions lobbyists from network and other people won't have impact. you have to factor all of them. >> the most important aspect in america today is our system of higher education. if you want and innovation economy or jobs of the future don't screw up the anniversary.

athletes are important, a balanced, reasonable way and that is the challenge over the next 20 years, and face the day of reckoning, and what is important to us as a country. >> that is really the message. >> that discussion is fair because the model of higher education is challenged as well. having athletics is part of the fabric of an institution, what we are trying to hang on to. we want to be an asset. there are very few things in life where you can teach young people to be competitive. is not about winning. it is about preparing and learning what it takes of your own personal talent and fortitude to learn to compete in this world. i wish i could find another analogy or another activity as

beautiful as sports to do that and it is hard to find that on our campuses today. i look at 508 young women, student athletes and tell them every year at orientation we have a staff of 350 people here who are ultimately talented. we have ph.d.s in academic centers and the sports medicine staff. we have career counselors, event experts, people that can run facilities, sustain our budgets. pages to work in this environment because they really care about the 500 plus in our care. they are other people's children. they are turned over to us some on full scholarship and some on partial, they all get to represent their university and on a regimen that is unbelievable. we have to find it. whenever you ask why the university of texas gets a linear channel and what we do with there's always we put some

on the experiences, and young people. and the football coach on the planet. and sports medicine chief, get through concussion protocol and facing complications with student-athletes and competition. in the eco system that the universities, and self sustained, and ticket sales and revenue generation we not only sustain operation, give money back to the institution for academic endeavors which we do to help the president and other things on the academic side because they are getting cutbacks from state funding and all the things that from all our state institutions we should be there to help.

if we begin to remunerate the operation, the participants that breaks that model. granny now what we are trying to sustain the financial aid model participation model and the parts and asset to our institution. >> this is something at both universities i was associated with at the university of southern california we looked at. wouldn't describe a lot of it, additional money on words, adding compasses the estimation, things like laundry and food and the ability to travel home to get to and from their home. there is built-in life list and a full scholarship that we estimate that u.s. c to the full

cost -- attempt the. the cost of living in los angeles, to funnel what is needed to hire need student falling into the university environment. or great discussions. i can say this because i am retired and. in a way, it would welcome the congressional review because they are positive it is under wraps because of the focus on a couple things. one of the primary being coaching salary. i understand that, i understand it forcing questions. if you did the deeper dive in researching exactly what goes on

on the college campus and commitment to the economic well-being and the fact the we are now graduating football and basketball players in particular well over 70%, up i don't think the rate was 70%. and absolutely marvelous. i need to be careful, can't fight the source of the salary and memory is not good enough but the average income to an american was at college degree of last time, $1 million more than the average outcome of an american with out. you heard the 1% is able to be talented enough to play professional sports and make their living that is fantastic. for the most part professionals would welcome a deeper dive to look at what is going on to facilitate the growth and the

undergraduate degree, many get master's degrees, we have a focus on an issue that is larger than life. the guts of the deal is overlooked and the guts of the deal is pretty special. >> it is a very important point that comes to the heart of my industry, the mainstream sports media, the male-dominated mainstream sports media, dear friends of mine i went to college with an iron door but you hear them all as you know it, football and basketball, they don't worry about that is the adjective men. it has already been set up here. we should in 2014 be able to see men's basketball and women's basketball and lacrosse. i think most of us probably do. but it is as if there are two sports to your point about deep or die, two sports, football and men's basketball and nothing

else matters, nothing else exists, it is clouded, our vision and just totally -- >> as a way of doing that. ..

i wonder when we're going to start hearing the voice of the mom and dad who are paying full freight for the kid who, by the way, the student is go to help out athletics in many cases as i understand. when mr. terry there's more for athletics i'm not expecting moms and had to run the country to go march on d.c. and have some kind of a riot or whatever i don't think we will see that. but we know for a fact when you talk to fans, they don't want to see athletes being paid. i know in one of the cases that has been litigated, a source of mine told me they did want to go to a grand jury because the jury could easily say no to paying athletes. and no to like this issue and whatever. there's a lot better. we could be your for weeks discussing these issues. i think it's important to step back, and i don't think we've done a good job in the media, of stepping back and saying okay, what about all of the people who finally say enough is enough and

am sick of this and i'm not going to buy season tickets anymore, or i'll go buy season tickets to softball because i don't want this. i said earlier, be careful what you wish for. one of the main things we're to do is focus on these issues because there is another side to the story that is not being heard because of wonderful friends in the mainstream sports media who just beat the drum on the two revenue sports to the extent of avoiding everything else. >> let me say one thing you for id you an opportunity to speak. i think, to play devil's advocate, you can be fully in line with what you're thinking and recognize the fact there are certain aspects of what the situation is, the status quo that is untenable. wasn't oscar robertson a codefendant because his likeness completed a graduate? 1956? coplaintiff, excuse me.

that can't be right. something like that needs to be recognize that almost 60 years later the likeness of an athlete is still controlled by the university. i think you can be on board with the larger font, but kind of understand that some things in the engine room, some nuts and bolts need to be changed. >> something they can't get overlooked is what thomas poker. he set up a warning flare that sports in america is due to all of our hearts. this is as important as any other country it is probably gotten addicted what we wanted to be. one of our great authors over the last centric wrote a book called sports in america and but to dig it out. it speaks to so much of what we're talking about. i do believe it's going to end up in your shop. i think anything this important is going to end up in our nations capital. the reason why we're here today.

having said that i don't want to lose sight of something len said earlier, talking about need-based. and could reflect back to when i was a young of both coached in 1997, making a salary much less than what people did today in this business. i remember distinctly at that time, fulbright scholarship still existed for football players as they did not. let's be clear wha wonderful rie encompasses is taking johnny or susie from an inner-city or a rural farm and put them in your college town and giving them -- they now go to school just like they didn't high school and they get the books and they get the food and they are remunerated for things that you basically have before college. in light of that i had this distinct memory of pulling up to football practice in a used car, 10 year old used car which was

just like and having a young man who came from a family of means pull up in a new suv. later in the week, i get a call from a tutor telling me another state athletes has not eaten for three days. that was during a break period but that never happened when school was in session but based on rules at the time you couldn't give them food or money for food during breaks at that time. i just want to underscore that and give a real-world examples that we try to paint this with a broad brush stroke. we're talking about real young men and women who are caught in this mix that each have different stories. i believe it's going to end up in your shop. >> let me ask the administrators of something but isn't it difficult to administer something like that when the rules are not exactly the same for everybody? >> better -- a rowboat is nearly impossible but as the previous panel said, we are the ncaa. it's up to us to fix it and we can fix it. i'm not sure we can fix enforcement though.

the model scott dr. lee about when they're talking about the drug issues, drug use and 11 exports, use the term we were the fox guarding the henhouse and they created u.s.a. da. i think anything outside organization with qatar comply 20 and in force but with some teeth in it. and so if that happens with a different type agency, that's what we need to start on that. because some of these rules about how we feed them come when we feed them, et cetera, those are so easy to fix. but what you can't just fix is integrity, lack of ethics and people that just want to play by different rulebook. that's hurting college athletics and the nation my perception of why college sports is good, why it matters, why there are benefits to it that our generational. if we can't fix our reputation,

then it will be difficult to continue under the circumstances. the ultimate insult to the full vote paying parent at your alma mater, all of our alma mater's is there something going on were an admission slot is great for inactivity that is consistent with this universities mission and values. there should be benchmarks to be able to stay at northwestern a fortune and texas and kansas. >> is that realistic? will that happen as long as there's this need to win and the best basketball player, best football player doesn't qualify? >> if, in fact, as tom mentioned, there is a collective international interest of politicians, those who have the power to grant things like an exemption on a limited basis to allow a body like the ncaa, and i'm not saying this particular makeup but at some point a central body or authority that

will be able to impose a lot of the things without having to worry about having some kind of antitrust litigation against them. that's what it is. back in the old west and you had a bunch of gangsters out there, you had to hire a strong martial the could you just let anything to be able to clean it up. i think that's where we're heading. i think what my position misunderstood, i agree with tom. the point i was making though, let's get rid of the tail wagging the dog mentality, which is what we have in college sports right now where the university mission is secondary to the mission of athletics. we've got to be able to go back to that. the only way you can go back to it once again is if, as i mentioned before, some central body strong enough to be able to enforce the rules and to be able to apply sanctions, to be able to make decisions that

ordinarily would be considered maybe anti-competitive or some type of antitrust violation. but nevertheless, because of the unique position, as tom mentioned, that college sports holes in our national interest, but someone has to be able to do it. based on the rule of reason which is part of an antitrust examination, that would be the reason why you provide a limited exception. the extension can't let the whole range of things that the ncaa or whatever it is passed to accomplish and has to continue, and it can be reviewed on an annual all or every two years for the success. if there's no success and a willingness to step up to the line, you remove it and where back in the same position, or you change the leadership. but something strong like that has to be done and to think that congressional oversight reviews is the first step towards that. >> real quickly, i agree with

everybody on this podium that says the college sports is very good and very positive, so start there. we just need to figure out how to make it positive for all the participants, including our universities. if you look back in the '70s, i was on the 1972 olympic team. we had a really tough olympics. a number of members of congress putting builds saying we need a presidential commission to look at this, the ncaa, everybody is fighting, nobody in control. we formed a presidential commission made up of members of congress but they passed a bill. it became the amateur sports act. here's the point. it gave the olympic committee the authority to be in charge. what is happening college sports is that nobody is in charge. a lot of people in charge but nobody is really in charge. so i think that that failure has caused all these problems. what's happening is we're seeing this unwinding of this because it's going to the courts and everything else.

we are heading towards this chaos which i think ultimately will ask is how do we fix it. i think that's sooner rather than later spent why is in the ncaa enjoyed? >> because they don't, first of all they don't control football. he of all the conferences that have all their strength. as mark emmert said in front of the senate commerce committee, he said, i'm really not fold in charge. he even admitted he has limited power. i fully recognize that. quite frankly am looking for benevolent dictator in college sports to take all the good and make it work, for all the things of the like about college sports. that's just my position. i just don't know -- i think we will head down the road where we will all be forced into this position. >> i was going to ask and you mentioned it before, we may be headed toward the day of reckoning. all of you folks, do you think

we're getting close to that day where the situation is going to become so impossible that it's going to need to be addressed by congress? how close are we? >> i don't necessarily think congress. i said to be the president, the president commission. ultimately, there has to be congressional involvement. i imagine this stuff could go all the way to the supreme court. but i would also say that's not a good thing. having all this litigation in the public eye is not good for college sports. and i think it really conscious all the good work that everybody in this room is doing. i see more and more of this coming like a len pointed out. that bothers me. we need to get bakehouse back in the barn and run this thing. >> oversight. >> you have to give the central authority a shield from the chinks in the armor, the death by 1000 cuts if you will, and allow the right leadership to do

exactly what was said, the but of late dictator, to make the rules and to be able to enforce the rules. >> to draw the perfect situation to just spit all of i.t. what is it exactly? >> once again, in making it impervious to the litigation that's going on right now. give it the opportunity to have subpoena power, the power to apply the sanctions, and the outside authority i think makes perfect good sensibly because again there's a conflict of interest, if you will, as you might have nowhere the organization ncaa is made up of member institutions, some of them under investigation themselves. that can be untenable. but more than anything else the list of the forms are required. you know, to have that shield conditioned upon achieving those lists of reforms. those reforms have to go to the

benefit of student athletes. it goes to the benefit of the student athlete, then you put the dynamic back in wac again where there's not a tail wagging the dog, that universities can now continue to be in the business of developing leaders as opposed to in the business of, you know, the arms race where you got to to build facilities into things to be better than your competitor. that levels the playing field. once you have that central authority, as i said, cleaning out the wild west, and everybody falls in line, you create a new culture. since the board of education, oklahoma regions, whatever versus the ncaa, that is when you start to unravel. when the ncaa lost its special authority. people also recognize there's a weakness there that we can go attack for our own interests. i think that's where the problem was. if you read justice white's dissent, it's is essentially

from erasable standpoint, the uk of college sports -- uniqueness of college sports makes it deserving of protection. in some way, shape, or form. i'm not saying unfettered power but nevertheless it's conditioned upon achieving these goals for the benefits of the student athlete, which in turn obviously knocks it back to the dynamic of leading universities develop leadership. whether you're controlling coaches salaries, whether you are eliminating competition that's affecting adversely the ability of student athletes to study, to do things. football, tuesday, wednesday, thursday games. that's kind of silly. i run the risk of biting the hand that feeds me with espn and others who are contracting these games but that's their business. that's how they make money. we've got to be able to balance that because it is a big business. we can't ignore that point, but

still, the student athlete benefit that has been central focus. once you do that everything else falls in place. >> i just think again the student athlete benefit which is all of our focus, it's hard to make the public believe that but it truly is why we work your it's why we show up every day. and i believe it's why alumni continue to have social gatherings around events and give to their alumni association and keep coming back to sustain. it's why they're proud of the schools, proud of their teams, and proud of the multi-generation of fact of this thing we call college sports. but if you don't view the services provided in addition to the opportunity and just the sheer access to higher education as a benefit, if that's going to be shrouded in, are they big enough, are they serviced enough, are they remunerated

enough? at some point a college president has to look at our enterprise and say, what value is a continue to bring to the institution? and to think right now we continue to have value because we can sustain leadership qualities in young people. if they do get their degrees while they are experiencing a competitive sports experience, they will be a better and more marketable citizen. they will be employable. they will bring something to the table for a greater good some way. but if a 70 build expects to work the way through the system, that model of educational leadership, maturity development, it really skews it from the start. i think we would lose it. >> i wonder, when does the public to say enough is enough? the arms race is, everything sounds so great and i agree with

you, and yet we know salaries are going up and more people are going up and up sure if anyone is watching us on c-span like a big fan, enough of that. i want to know how we're going to play this weekend are we going to fire a coach or we have the big recruit coming. we saw something very interesting that i have been covering quite a bit since september 8. of course, that was the day the ray rice second elevator video hit and i think sports as we know it may be changed forever. it sounds very dramatic and might be over the top, but i will just post this thought. that a leak -- the league worth billions, the nfl, the big thing in our country terms of one sport league, literally buffeted and taken from its moorings by twitter, by social media, by mainstream media to the point where the apologies roger

goodell, the changes, the immediate suspension of a man who had already been suspended, wait until he gets reinstated, that's a hold of the issue, ray rice. we really saw something remarkable happened that week, september 8 on word in this country in terms of the way a leak had to respond to the people. and so going forward i do have the answer. it's more of a question and maybe for some of you who are normally be interviewing as opposed to be joined on the panel -- >> you keep on taking my job. >> sorry about that. but i'm curious if something like that, what happened at seminal moments, september 8 with the ray rice video, if fans get disgusted. that janus winston same as other two, florida state, six, seven, eight things he's done? it's appalling. >> let's switch hats for a second and let me just say this. not only someone who's a member of the media but as a fan of college sports i will be shocked

if we ever get to the point where people abandon their fanaticism for sports because of something as real and dead serious as what you talk about. it's just not going to happen. >> no, but will they say i'm disgusted and said, you know, i don't want to pay athletes? will it become fans just saying enough is enough? will those fans if we listen to because of that buying season tickets or buying the packages are watching espn or whatever they're doing. i guess we should ever minds may be open to anything because it never would've envisioned what happened with the nfl september 8, 9th, 10th, 11. that's all i'm saying. >> the nfl situation was such that everything moves so quickly, they didn't have a chance to make up stories. they did have a chance to live because of the transparency due to the speed. >> florida state has plenty of opportunity to lie. >> well, they have. we've seen that.

it didn't come out as quickly enough. but in the end, i agree with you best be some kind of groundswell of discussed, to put it in terms that you did, -- discussed. everything they love, during the week in basketball, in either gender is basketball, all those things that of are getting perverted by other factors out there that aren't really the purity of the sport. the problem is i don't think that they know enough. i think there's been so much misinformation, so much for version and disfiguring of the culture that people, many people think this is the way it's supposed to be. this is the way it's supposed, it's supposed to operate instead of recognizing once again going back to the basics that this is for the student athletes who go out and they will go out there and demonstrate their skills, but in return, you know, they're getting opportunities to develop

into leaders that ultimate love impact on us as a nation. and not just what we watch on tv. i don't think people see it enough. >> i wish self reform would work. having been at this a long time, because i think it would be better, but to give one example, the university of maryland board of regents. i'm on the board. to pass something in committee last week where we will give the coach and athletic post a list he gets the minimum apr for that season. wow. there's not a school in a in the country that does that, not a program across the country. it means that coach can't flunk his team out and stick it hundreds of dollars if not millions of dollars of bonuses. that was hard. that's hard. why hasn't that been adopted across the country? years ago in the '90s there were no coach is making a million. today, there are hundreds of

coaches making a million dollars. are we going to be back at 20 years? this is what i'm concerned about. i just wish this thing could clean itself up but it's had plenty of opportunities and it hasn't happened. to your point all these external forces are only going to make it more likely that we will have a day of reckoning. >> i do think the coaches have to care ace on the standards and academic standards that are matching up, and the fact that because of apr and because of gsr, if you are discerning and recruiting, you did not get the young lady or young man who comes to pitcher campus and truly want to be a student in addition to participating, you're not in a situation where you can just run them off and survive. you go below the apr, we saw a national championship basketball team from last year missed the tournament for a year spent without enforcement, cure and

swift and reasonable enforcement, all that does is promote renegades out there and you have academic fraud. we only see the tip of the iceberg i'm sure. i do a lot of games and i've been doing this thing over 25 years in college basketball. you can talk to athletes. you can recognize who's on the ball, who's not. who can do college work was capable of doing and who's not. i agree with you that coaches have to care, but unless they're given the incentive to care even more, which means, as tom, you're talking about tying someone's bonus to apr, what happens if tying someone's bonus to the number of kids who graduate with meaningful majors and some of the other things? all that does in many instances a lot of renegades get away with stuff but i think that's why, i think it was your idea of getting outside enforcement to make sure that there's a monitor there and they disincentive to

do some of those things that are going to give them around the apr and the gsr consideration. >> i would say today, just given the way universities operate, it's difficult to fraud the academic system. what i worry about is the recruiting front on the front side. what's incentivizing people to go to particular campuses and what's keeping them there. again, and coaches have bosses your igad to hire a coach that fits your campus, that fits the profile of the campus and what the alumni expect athletics to be on your campus. again, i hate to use texas analogies but there's no other high profile job than the coach. the coach has to make our decision to 13 in normal longer in uniform. now, our fans could be put off by that by tfi basic rules to follow and if you can follow those five rules you can play for texas.

our fans i think right now admire what he's done. he cares about the character of his young people. he said it's a privilege to play here. and as long as you follow these rules, you can represent our institution the those young men will be better but if they go to the nfl, i hope we're sending young men of character to the nfl when they are paid and compensate for the kids and their skills, they will still be a good citizen and a heckuva putting the nfl. >> you guys have to continue to stand by that. there are some universities that won't stand by it, the value, the ballots will now go the other way. you haven't won in of games. i don't care how moral you are, we are in the business of winning football games. >> i believe that's where texas is and we abate men's a deep who is six for and he can post you guys up. [laughter] spent in the end, look, these are games which are about winning.

and i think unfortunately what we've seen historically is that the winning component of this is much more important, or it is certainly equally as important as the idea that you're shaping an individual and helping to contribute to society. that's the unfortunate part, that's the imbalance. what's the breaking -- i think the point is what's the breaking point for college athletics? window to get to the point of such outrage would you say enough is enough? is a possible we could ever, could you imagine, getting there? away at it. >> it's pretty depressing, but a lot of this is an it -- at the risk of stomach the eternal optimist i look at the issues are facing us in the industry right now and put alongside issues that are in front of congress in washington, d.c. every day but it seems like we reached a point or an impasse on almost all social issues. we are the greatest country that's ever been with some of the greatest minds that have ever lived and we are struggling

with solving some of these issues that confront us. at the same time i'd like to look back at the last few decades in college athletics. i think back to the time i was watching 60 minutes with my dad back in the 1970s and there was this exposé on college athletics, and johnny can't read, and isn't that. that's back when he only had to be enrolled in six hours per semester, so on and so forth. since that time we've apr, gsr, iraq was towards graduation, the 20 our rule which would it's been the next reduce talk about as well. when i entered in the coaching business years ago it was not typical target practice for three hours 40 minutes. that rarely happens today. these students have so much academic support on most of our campuses. the are a lot of good things going on. my point is this, we have addressed a lot of those issues and so this is now the issue of our time. it's up to us.

this is the issue of our generation. and we need help, tom. we need help from a lot of different factions to get this solved. again, you have to be an optimist to be in education. i believe we will find this answer and we will solve this problem. it's daunting right now, but discussions like this are beginning of where we will end up. and there is a right answer after that we will eventually get you. >> it's intriguing to think about an outside entity moving into become the power base, whether it's a commission or whatever the model looks like. because i never really thought, they've got a lot of thought, but i posted this classroom of ph.d and maste master students l the time as we go to the business of college athletes. where does the power like? who's got the power? who's got the power? so at one point several decades

ago in order to rangel the -- in order to rangel the competing institution they created sort of bizarre, and executive director who failed miserably and was ousted shortly because trustees of certain schools felt like they're being selectively enforced, as opposed to a general nonpartisan entity that works for the welfare on theme, the student athlete, citizenry and benefits and graduation and all those kinds of things where you have that is the sole theme of whatever this third party entity could be to manage the enforcement process and anything else for that matter, because the rules are made and passed and fail and pass, so may times because of student athlete well being, yes, but also because of competitive interest. end when you look at that in the bigger picture, to manage

something as critical as enforcement and feel confident, at arizona state or usc or the university of texas, the university of kansas or northwestern, all of these schools, the schools were talking about, you just want to feel confident that what's being enforced in baltimore is also being enforced in spokane. endgame on. those are the rules, play by the rules and enforce the rules and in nonpartisan capacity and create the rules, not based on the competitive nature of you getting an edge it has you're in l.a. and i don't have the same benefit if i'm in manhattan kansas so let's not do that. unfortunately, tried to butt heads with unlike institutions, but if you went to a fair or nonpartisan entity that was managing enforcement or the ncaa, that members could actually trust, and i believe the members would be on board. that's want to know what's happening on one side the

country is the same thing that's happening with the diligence on the other side of the country. and equitably applied. i think the whole raising that issue about a third party enforcement, chris, i think you brought up the enforcement thing, leads down a path of potential health, but also maybe being able to answer the question of where does the power line. because it's too lazy. it's just too hazy. >> is oversight at that level, that type of scrutiny, is that really possible? do you think it could be effective? you really need to watch so carefully and so closely. >> you've got a membership whether it's within the ncaa right now or a third party that we are talking about in this panel discussion, you have a membership that's hungry for fairness and application to you have a membership that starting for fairness and application.

they already from one's will to the other do not what goes on in one city, and one college town, is going on in another college town. they're anxious for that to happen. so actually think the membership, given the right set up, which embraced the concept of nonpartisan, fair enforcement body that conducted business on theme for the benefit of student athletes health, well being and graduation. >> i was just going to say to support that position, there's so much with regard to self reporting that's out there. and so institutions, if the administration sees that the athletic department has done something, they're going to self-report. now it's up to this third party to go in and really find out exactly what's going on, because there's no third party. there's no security that's going to be able to find every single infraction. they're not going to be able to

snoop through every division i through three university and find out. so it has to be motivated by the idea of doing the right thing instead of trying to do things right, per se. but once it happens, right now without subpoena power and without some of the other powers that it would be able to dig deeper through that superficial layer of evidence and get to the truth, you are not going to people to find anything and that's the biggest problem. i think a third party can certainly handle that. >> everybody was worried what was autonomy going to mean for these five conferences. what we want is still the big ten. we want to be able to do as much as our resources will recently a loss to defer student athletes experience enhancement, period, keep the educational model. we want to keep the big ten under our governing body. it's called the ncaa today. i want to be able to play texas state and softball, because that

works. it's what made her ncaa basketball tournament so appealing that princeton might beat georgetown. but the thing we're really concerned about is how we manage our enforcement. aside from using our resources to expand financial aid for student athletes and services, really harboring in the gut of all of us is how do we deal with this enforcement compliance issue. we don't have the answers yet but we better get there in a very -- in a hurry shortly. >> we are closing in on insulin going to do is ask each to close eye getting your thoughts on the following questions. not what would you like to see happen, but where are we heading in terms of the situation that we've been discussing, the student athlete compensation? what's the trajectory taking us

towards? why don't i start on the far end. >> i'm going to start by saying somewhere in the middle. maybe that's an easy place to be. tom started this but talk about if we were to break the whole model apart and start over, we wouldn't be where we are today. well, we've evolved to this point over 100 years, and there's a lot of reasons for that and we can't unwind that is quickly as we would like to. what i do believe using the term that was used earlier, there will be equity's that will be distributed about. i don't think the term employee tastes right in the world of amateurism and college athletics. i would close my part by saying regardless of what we all do, whatever we all get in this, and i am an optimist, nothing will stop johnny and susie from playing basketball and swimming and diving and sprinting and running and playing tennis, whatever else they do. i believe in the pure essence of sport in america, and we're not going to give our young boys and girls and young men and women

from being the best they can be. >> i just look at the spam and i think about how college athletics has inspired and assisted everyone of us. i believe that the people that you see in this panel are the products of a very good environment. we need to hold on to the good notions in that environment. we need to improve it, and wanted to do with it in a modern business sense. and i believe that there's enough intellectual firepower on our campuses and leadership that we can do it with some assistance from greater minds as well. >> thank you. inexorable change is coming. you can count on that. just give you one point. clay christiansen is a great -- says 50% of colleges, universities won't be here in 15 years. what are we going to do? what we need is someone in charge of college sports that's

going to be working in our true national interest promoting the things that are truly important to america, competition, gender equity, academics, minor sports, and most of all being in sync with our institutions of higher learning which are the most important assets in this country today. >> we will be in a healthier place. these hard questions we're getting in right now, and if the catalyst to this questions are heightened television revenues and multimillion dollar coaching contracts, so be it. but i think it may be an uncomfortable surf for a while to ride, but i think ultimately the tenants of the american model of amateur athletics attached university and college will survive and be stronger. i don't exactly know how we will come to the point but i think what's happening right now is a healthier environment. i think there are good questions

in that. >> well, let me throw a dose of pessimism in. unfortunately, ics without having some of the solutions that we talked about, stronger independent body that's impervious to the death by 1000 cuts of litigation, et cetera, without the antitrust kind of shield that we will have, that we certainly should have. i see kind of a bifurcated situation where there are going to be institutions and conferences that are driven by the dollars. what do you think conference realignment was all about? right now there's nothing to realign, but down the road there may be some without this kind of help that i'm talking about. my fear is it's going to be a bifurcated system where you will have certain conferences and certain universities that will go for the dollars. and now we will have a total blurring of the professional versus the collegiate model in

sports. we talk about student athletes as employees, i mean, we're going to go right up against that as close as we possibly can with payments and things of that nature without enforcement that's necessary to kind of curtail that. we are going to ultimately have people paying them. we are talking about some people have been speaking about having agents involved now in the recruitment, having been involved in negotiating certain conditions and terms and wages for student athletes. we've got this jeffrey kessler case. i hate to give it that name because he's the attorney. he's not the plaintiff it nevertheless is recognized by that, that once it reached the so-called free market that will benefit institutions as to how they deal with student athletes, but the funny part about it is there's that one institution that's one of his plaintiffs. i do know how he can speak to good intentions for them. all of those things combined with a protections that we necessarily need so we can gather and do the right thing

instead of just trying to do things right, we're going to have that bifurcated system where college sports in a major since are going to be indistinguishable from the professional model. that's going to turn a lot of people off. christine, they be that's what he groundswell comes by that time it's too late. >> well, first, thanks for moderate the panel. thanks for all of you for being here. a couple thoughts. where are the presidents of these universities? i mentioned florida state. the president, acting president in that case, it's the leadership of the university were in charge of the university, what might be happening different there now? i'm picking on 40 state it's in the news. we know there are many others. we can come up with the president, the academic leaders of these universities getting the universities back in line. it could be as simple as that. i also think it's important when you talk about paying athletes as we have, when many of my

colleagues and my difference in immediate talk about let's pay them salaries and let's unionize and do this and that. let's picture that, visualize what this looks like. if we start doing that and we see that offensive lineman he was at tennessee who says i think i will take the better offer at alabama. and then for the final game of the season, i'm going to go to iowa and play for a game. do we want that? do we like that i do? if we stop and take a look at what the future would look like, i think everyone would agree we don't want that. and so an intelligent approach, a look into the future and picture it exactly as we think it could be at its worst or best what of your point of view is on that, and then come back to reality. my last thought, smart people, intelligent people can decide what to do with stipends, with health insurance moving forward to this is not rocket science.

i suggest smart people like those that i've had to put in together on this panel with, committees, leaders coming together making rational, smart decisions that can keep this model basically the way it is now, which we've grown to love, i have as many of us have, and just figure out how to work out these issues and navigate through these rough waters. i nominate all of you to be the leaders moving forward. thank you. >> i hope we're heading to a place where we can fix college sports and make it what it was when i first became a fan of the game, which company to want to go into the industry that i've been. there's nothing better than college sports and i think it's very, very strong on the field right now. i hope it weekend's help at once had offered up as well. to our panelists, thank you much for joining us. to those of you followe focus od on television, thank you. we bid you goodnight from washington, d.c. [applause]

[inaudible conversations] >> coming up on c-span2, judge janice rogers brown discusses the constitution and the rule of law. then live at 9:30 a.m., house oversight committee examines the u.s. response to ebola. >> today, the center for strategic and international studies hosts a discussion about efforts to return stolen assets to middle eastern and north african countries. we will bring of that event live at nine eastern on c-span3.

>> today an update with the command of u.s. forces in south korea. you can see his remarks live at 11:30 a.m. eastern on c-span.

>> next, d.c. circuit court of appeals judge janice rogers brown discusses the constitution and the rule of law. her remarks were part of the heritage foundation's legal lecture series on reformer supreme court justice joseph

story. this is about one hour. [inaudible conversations] >> ladies and a woman -- ladies and gentlemen, you can tell you were in our room of lawyers, can't you? ladies and gentlemen, open to the heritage foundation. we would appreciate if it won't please take their seats so we can begin our program probably. again, thank you for joining us at the heritage foundation. i'm john hilboldt, director of lectures and seminars and it's my privilege to welcome you, those joining us on the heritage.org website and those joining us on c-span tv.

we would ask everyone in house to make sure the that your cell phones have been turned off, especially in weather bulletins come. it's amazing what happens in a room. and, of course, we encourage you to watch a program again on line following. it will be posted for everyone's future reference as well. hosting our guest today and welcoming her to heritage introducing our special program, pending his blackberry, is the honorable edwin meese. he served as the 75th attorney general of the united states and served heritage as ronald reagan distinguished fellow america's enter civil and legal studies. [applause] >> thank you, john. ain't you, ladies and gentlemen. it's a pleasure for me to join john in welcoming you to the heritage foundation and particularly to the annual joseph story distinguished lecture.

this is our most prestigious legal event of our legal centers preserve the constitution series. it's also part of our legal strategy forum which is taking place today and tomorrow, where the ceos and primarily the officers of the freedom based public interest law organizations throughout the country, some 40 of them, get together to plan their efforts to defend the constitution and to bring justice to the people of the trendy. we are glad to have been in the audience this evening. the lecture of course is named after the supreme court justice joseph story for two reasons. first, because of his dedication to the constitution, and secondly because of his influence on the law. he had one of the most outstanding impacts on the develop an of our system of justice, and particularly the development of the law itself in the united states during his time on the court. as a matter of fact, oliver

wendell holmes particularly said that story, who did not always agree with justice story, said that he had done more than any other english-speaking man in this century, his century, to make the loneliness and easy to understand. he also served as a professor of law at harvard university, and he was almost single-handedly brought that universities law school into being since the year before he arrived, they had only one student. he expanded the student body as part of its contribution to law there. it's also interesting to note that while on the supreme court, he continued a pattern that the early justices always followed to write a circuit, and for the appellate courts occasionally top court in the northeastern part of the united states, while at the same time continuing to teach at harvard and also to do

his duties on the supreme court of the united states. so he really had a very busy schedule that he followed and carried out in the, in a very distinguished and dedicated manner. noting justice stories experience and his broad reach of his activities relating to the justice system, we have tonight a distinguished guests who was an even broader experience in the law. he has learned that expand in virtually every aspect of our justice system. he is married to dewey parker who i was here to sing but she graduate from ucla law school and received her degree from university of virginia in the graduate program for judges. to show the variety of her expenses between graduation from law school and her appointment to the federal bench, she served first of all in every branch of

california government. she drafted bills initially and the first expense in the legislatilegislati ve counsel's office dealing therewith the state legislature. she served in the attorney general's office, which is almost a separate branch in california. [laughter] she was deputy secretary and general counsel of the state's business, transportation and housing organization there. and then ultimately was legal affairs secretary to governor pete wilson. she then had experience in private practice in one of the states distinguished law firms better, and then went on to her experience in the judiciary, first associate justice in sacramento, and then on the california supreme court. because of this vast experience and her distinguished service,

in 2005 president george w. bush appointed her as the judge of the court of appeals for the district of columbia circuit, where she continues her very distinguished service to our nation. so ladies and gentlemen, please join me in recognizing the joseph story distinguished lecturer for the year 2014, the honorable janice rogers brown. [applause] >> thank you. you're a lovely audience. i probably should sit down now but i want to thank the heritage foundation for asking me to deliver this year's joseph story lecture. i'm honored and, frankly, a bit intimidated to be in such

company. i have attended many of the other lectures. i especially want to express my gratitude to enemies for his friendship -- edwin meese, for his friendship and many kindnesses and for being such an inch. for those of you do not speak yiddish, it needs a man of integrity and honor. but for general meese is courage and integrity, conversations like this probably would not be taking place. we are all indebted beyond anything he can we pay because he took seriously his oath to support and defend the constitution. this is where i -- [applause] is what usually offer my caveat, and tell people i'm not a scholar or a philosopher, and certainly not a theologian. but today i'm going to do

something a little different and going to speak as a conservative, and that's a conservative judge. one who has the good fortune to be particularly ill educated. having escaped an ivy league education, i now find myself predicting how ever i like. [laughter] i suppose if i'd been around when judge story was teaching at harvard i might have rethought that. but as a conservative i spend much of my time thinking about the present evils of this world, unlike my liberal counterparts who spend their time thinking up new ones. [laughter] and these days, frankly i find myself a little bit like gladys knight. thinking i've really got to use my imagination to think of good reasons to keep on keeping on. and for those of you too young to know gladys, youtube.

[laughter] as i grew older i have developed a new appreciation for justice plaintiff cory, reform, reform, aren't things bad enough already? [laughter] perhaps that is why of late, conserve discussions about the constitution and about american constitutionalism generally have had a distinctly remedial if not downright a legit tone. we speak of restoring, rehabilitating, repairing and defending the constitution. i do not think our sense of urgency is overblown. our panic is justified. the title of this piece adds might intimate a bit to think of preserving the fortress of our liberties. like analogy is drawn from the stonemason. i suggest we might also consider we pointing the constitution. some of you, those of you who do

not live in old brick buildings may be unfamiliar with the term. when we first moved to washington, d.c. we purchased a row house in the district, and being from the valley, california, a part that had little expense of row houses, or houses of any kind, we were completely unprepared to do with the main is required for structures that have been withstanding the elements for more than a century. but even as we were stacking the moving boxes, our next-door neighbors drop by to warn us to expect strong smells, noise and dust because they were having their house repointed. response was what? they explain the feeling of brick-and-mortar structures was more likely to result from the mortar between the bricks than any other cause. are you like the cement must be cleaned out and replaced. it is a pain staking and labor-intensive process, and as i lear learned more about i bece aware of critical importance of

the replacement cement having property similar to the original mortar. newer and stronger cement might actually be too good. according to the author of the art of the stonemason, modern materials can hasten the decoration of the stone by being -- over the seasons of change to actually crack the bricks, a calamity nothing can prepare. the result is a pile of rubble. that's the perfect analogy to our cast in supporting and defending -- defended the constitution is it not the new ingredient progressivism, the love child of the modern enlightenment and its chief handmaiden postmodernism that has ruined the constitutional edifice and impoverished our original understanding? so we must ask ourselves, what with the ingredients of that mortar, that binding spell that gave us statements like adam and medicine to judges like marshall and story coming presidents

washington and lincoln. what made america possible, limited government conceivable? and can we, a polarity switching capture the optimism and servitude of the founders in a world of big government, none of them could have imagined. or was a republic, people by freeman a naïve and childish dream to which we wiser, more sophisticated grown-ups should bid good riddance. though america seemed a miracle, wasn't only product of its time destined to fail as sensible as that produced it faded from the national conscience? is there anything to be learned about constitutional repointing from a judge like joseph story? perhaps. a couple of examples of constitutional interpretation based on two very different species of normative reasoning may bring the issue into clear

august. at one time the judge's role in interpreting constitutional text is based on the anchor of a fixed constitution. joseph story was part of that tradition. he was born three years after the colonies declared their independence, and a year before john adams helped draft massachusetts constitution in 1780, which in language strongly reminiscent of the declaration confirmed that all men are born free and equal.

>> to the natural rights of man, yet this jeffersonian republican who professed he was and always had been a lover, a devoted lover of the constitution of the united states and a friend of the union, wrote an opinion the union, wrote an opinion placing the supreme court in the midst of an intense national, moral and political conflict, and the court heard arguments reviling the constitution as a damn able pro-slavery compact. but while story recognized the constitution was built on a compromise that did not forbid slavery, he saw the constitution

itself and the union it sought to perfect as the means by which the wrong would be ameliorated and ultimately eradicated. when story says prigg is a triumph of freedom, he foreshadows lincoln who would cajole the civil war congress saying they might nobly save or meanly lose the last best hope of earth. lincoln meant to preserve the union which the constitution had brought into being. story was prepared to exhibit whatever patience was required to support and defend that constitution. it might be said of him, as he said of justice marshall, that when others despaired of republic and would have allowed it to succumb to a stern necessity, he resisted the impulse and clung to the union and nailed its colors to the mast of the constitution. thus, although the natural law jurists distinguished between the frame of government and personal, as we would say,

natural and inalienable rights which are emphatically not the same as the abstract rights of man, they recognized the natural law as a ground of moral reasoning, but reasoned that exceeding their authority under the positive law would violate the very natural law in whose name they purported to act. such reasoning included concern about the preservation of the kind of governmental structure which made liberty possible. unless the framework of limited government, the constitution of liberty was preserved, the project would fail. modern commentators take strong issues with story's assessment and are sharply critical of prigg. professor ronald dorkin presumes that story rejected natural law entirely, otherwise he would have recognized american constitutionalism presupposed a conception that should have informed story's interpretation of the positive law.

similarly, professor kent new meyer said story misunderstood the way in which moral choices and political interests necessarily inform legal doctrine. but what the two identify as moral reasoning has quite a different root than the natural law enterprise. judicial reasoning and hard cases requires judges to identify abstract principles of justice. newmeyer said had story not accepted the historical premises, he would not have settled for the easy answer. but in contrast to story's close attention to the constitution, many modern judges see themselves as translators of the lofty generalities of the evolving constitution. consider justice brennan's position on the death penalty. in a 1986 speech, he described

the constitution as a public text and a sublime or ration on the dignity of man. thus in the process of translating the majestic generalities of the constitutional text, justice brennan concluded capital punishment is under all circumstances cruel and unusual punishment prohibited by the 8th and 14th amendments. he acknowledged that his interpretation is one to which neither the majority of his fellow justices, nor his fellow countrymen subscribe. he ignores the fact that the text of the constitution does not forbid capital punishment. instead, brennan articulates what he sees as a larger constitutional duty. on this issue the death penalty i hope to embody a community, although perhaps not yet arrived, striving for human dignity for all. in short, he would impose his biases to force a community into being even though the belief he seeks to foster or contradict

the text of the constitution. in brennan's view, the judicial task is not the patient, painstaking work of reporting, it is wholesale renovation. much in the spirit of the insistence that the broad normative aspirations of the constitution license judges to identify and impose their own moral principles. perhaps justice story's activity cannot be described as repointing. the constitution was still too new. but we can still see ingredients on which he relied; respect for the common law, prudence and precise exapplication, unshakable faith in the natural laws, universal objective moral truth. if we are to repoint our constitution today, these understandings seem to be essential ingredients. justice brennan used a different framework. he intuits a concern about human dignity, a phrase whose meaning in particular circumstances is

highly undefined. he then purports to give meaning to those abstract values. surprisingly, both justice story and justice brennan are identified as natural law jurists, but it makes little sense to put judges like story and marshall in the same cap with judges like brennan, for the latter would dismiss the principles to which those early judges were devoted as quaint relics of a bygone age. it is easy to trust -- to trace the trajectory that has landed modern jurisprudence in this predicament but difficult to phantom why we act as if the transformation was seamless. in 1977 yale's arthur leff reviewed the book "knowledge in politics." leff's essay in the form of a memorandum from the devil identified the problem at the heart of any book on human action. he asks, how does one tell and tell about difference between right and wrong?

why are, one, a person or a society do any particular thing rather than any other? how can one ground any statement in the form it is right to do x in anything firmer than the quick sand of bare, reiterated assertion? leff is admirably candid about the reason for rejecting the obvious solution. if there is no external source on which to ground normative assumptions, the answer to why x will have to be, because p believes so where p is some person or group of persons. i call this the zip code theory of jurisprudence. [laughter] the enlightened opinion of those people who went to school in the same zip code that you did. [laughter] or because p equals everyone, where p represents the general will. here, finally, leff explains the real stakes.

if, he tells uppinger, human nature is defined as the good, there can be no argument for change, and in that a case an inte intellectual like unger would have no role at all. the good has to be not what people were now, but what they are becoming or could become ever more perfectly, ever more fully. it is impossible to see this comment without hearing the echo of lincoln's warning that men of ambition, members of the family of the lion or the tribe of the eagle who thirst and burn for distinction, will have it whether at the expense of emancipating slaves or enslaving free men. ung or's book -- unger's book contains this passage: the authority of the striving to be and to become ever more human, he goes on, the first assumption is that there's a unitary human nature, though one that changes

and develops in history. the second premise is that this human nature constitutes the final basis of moral judgment in the absence of objective values and in the silence of revelation. in 1979 professor leff gave us the short and spritely academic tour de force on the absence of objective values. he said, if we cannot believe in a complete, transcendent and eminent set of oppositions about right and wrong, findable rules that are unambiguously direct us to live righteously, then all premises for any system of ethical rules flounder on the problem of the grand says who. [laughter] right? in other words, in order for any normative evaluation to be binding and unquestionable, the evaluator must be beyond question. the evaluator must be the unjudged judged, the unruled legislator, the premise maker who rests on no premise, the

uncreated creator of values. in short, the great i am. god. and leff candidly admits that if god is rejected, the result is the total elimination of any coherent or even more than momentarily convincing ethical or legal system dependent upon finding authoritative premises. this is an academically opaque way of saying forget about constitutionalism or even a rule of law that is more than skin deep. when man replaces god, the focus is not on god's goodness, but his power. and here it may be useful to contemplate c.s. lewis' succinct rejoinder to an earlier effort. quote: a dogmatic belief in objective value is necessary to the very idea of a rule that is not tyranny or an obedience which is not slavery. it is on this idea of objective value, the belief that certain attitudes are really true and

others really false, that america was established. the founders presumably believed the statement adapted by thomas jefferson from the virginia declaration of rights, edited and endorsed by those who founded this republic. quote: we hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. hayesic coal kousky proclaims jefferson's sentence the most famous ever written in the western hemisphere or, he says, perhaps the second most favorite right after "coke is it." [laughter] for those of you under 30, a more recognizable choice might be "just do it." [laughter] or for the 40-somethings, "may the force be with you."

[laughter] you get the idea. and yet as acknowledged, what seemed self-evident to mr. jefferson would appear either patently false or meaningless and superstitious to the great men who shape our political imagination, men like aristotle, hobbs, marx or nietzsche. of course, we need not go so far back. we could add the names of american presidents like wilson and roosevelt to the list of those who argued for liberation from constitutional piety in favor of a reevaluation of the constitution. natural rights and its evil twin, the rights of men, seem to move in an eerie antipony. thus, the idea of modern rights and economic freedom grew up side by side with the refusal to accept any dogmatic belief in objective value. this is a big problem for modernity, for limited government and for liberty.

these self-evident truths represent the theoretical proposition on which this nation was founded, and though these principles must be continually reinterpreted to apply to changing circumstances, what future exists for a regime founded on the lex or the that? if no one quite believes in it anymore? this is where the life of a conservative judge who favors limited government becomes difficult. a legal philosophy that does not recognize absolute moral norms cannot limit the state's power. indeed, it is not clear that a legal philosophy that does recognize absolute moral norms can limit it. but the law is rooted in a series of objective value judgments about morality or justice, or it is about nothing. to divorce the government's monopoly of force from conceptions of what is right and wrong is ultimately to justify tyranny in its most naked form. with pure hearts and good intentions, conservative judges -- the judges most

convicted of the accuracy of the founders' intuition and most anxious to preserve a robust constitutionalism that can effectively limit government -- have is instead of defending the constitution unilaterally disarmed. with high hopes and grand theories, the proponents of the living constitution have rewritten the charter. but the result is inevitably incoherent or illiberal or both. leff's candor is useful, the consequence of everyone going into business for themselves is not just the e corrupt of natural -- eclipse of natural law, it is the privileging of unnatural law. once -- [inaudible] nor the judge has any place to stand. the denial of any reality beyond convention is culpable and incoherent and leads to different but equally

destructive errors. if as the late judge bork argued there is no principle way to navigate competing moral claims, then the only option is for the proponents of judicial restraint to remain silent. i get this. his position has the virtue of being entirely consistent. and i understand why that recommends itself. on the other side, moral knew hi lists fill the void with surrogates of their own design. these reconstructions are admittedly devoid of any normative authority and range from generally-accepted standards -- the zip code theory of jurisprudence -- and idiosyncratic conceptions of democracy to radically personal convictions. it is worth considering where these theories translated into styles of constitutional

interpretation lead. the best example that i can give you is the former chief justice of the israeli supreme court. it's safe to talk about him. [laughter] he's very candid about what he believes and how he does this. he also doesn't have a constitution, so it's kind of -- it's a little bit better. [laughter] anyway, he argues that judges must defend democracy by defining ultimate values. he suggests, quote: a process of common conviction must take place among enlightened members of society regarding the truth and justice of norms and standards that people cherish before we can say that a general will has been reached and that these should become binding. presumably, when the elites' consensus changes, so does the law. coupled with judging based on abstract generalities stated in a single word like "dignity," this allows judges to presuppose

subjective dispositions under the guise of an objective standard. a very similar defense can be found in justice breyer's book, "active liberty." it seems to me that judicial quietism and adventurism are both problematic. the result is either democratic despotism or judicial supremacy. neither bodes well for the sustainability of american constitutionalism. on this record it is hard not to sympathize with the proponents of judicial restraint, and i consider myself to be one of them. it is a principled position, and there are good reasons to fear arbitrary discretion in the courts and to promote what judge bork called the morality of the jurist; a discipline that required judges to abstain from giving their own desires free play. self-restraintd is part of judicial prudence, but the founders clearly believed human nature provided a standard by which to judge political institutions. the arguments for ratification

martialed in the federalist papers were framed in terms of presumptively real moral considerations and recognition of the real feelings inherent in human enterprise. james mcclellan, story's biographer, focuses on the perceived inconsistencies. he gets very hung up on that. he wonders whether his approach owes more to burke or adams, whether it is hobbs january or lack january or more indebted to the christian tradition. i think finding some precise correlation is beside the point. story was a child of the american revolution. ideas about liberty, duty and sacred honor were part of the air he breathed. he had in common with the founding generation a deep understanding of the way the axioms and first principles of moral reasoning were integral to the -- [inaudible] that defined american constitutionalism. he, like the drafters of our constitutional documents, assumed that any good regime must respect the nature of the

creature to be governed. man was a creature of the logos whose rational nature created by the god of the logos was divided by the moral law engraved in every heart. to big story force of -- the obligatory force of the law -- [inaudible] yet he begins his discourse by observing that the law of nature is that system of principles which human reason has discovered. these reflections illustrate a very fundamental distinction between the vision of natural law embraced by the founders and revered by american conservatives and the progressive idea of inevitable, transformative progress. the progressive idea highlights the difference between progress in science and technology which can be cumulative and progress in morals and politics which must start again with every generation. there is a deep paradox in the progressive insistence that nature of history is settled, and the nature of man open to

any definition that captures the imagination of the moment. to install this view of humanity is to take away precisely what the constitution sought to preserve. john adams said he always viewed the settlement of america with reverence and wonder as the opening of a grand scene and design in providence for the illumination of the ignorant and the emancipation of the slavist part of man kind all over the earth. he was not alone in this view. those who pledged their lives, their fortunes and their sacred honor in those revolutionary times repeatedly gave credit to divine intervention to being in the hands of a good providence. in fact, even though hardly anyone who reads about the harrowing days of the revolutionary war escapes the intuition that america's success was something more than serendipity. in retrospect, there must be more than attrition of awareness that something extraordinary was afoot.

it's hypothesized that the hung of history shifts dramatically roughly every 500 years. 500 years backwards takes us to the great reformation. the long view of history echoes in a shorter time frame some of the same elements of mythic struggle. he invokes st. augustine's trope in the city of god, recalling how god enriches history by the same antithesis that gives beauty to poetry. arising from the -- [inaudible] of contraries. a kind of eloquence in events instead of words. thus, he concludes, the devil often tries with great success to convert good into evil, but the battle is never ceded to him. god may reforge evil, havoc and destruction into instruments of his own design. the point of his essay is that the reformation, which was intended to purify

christianity -- [inaudible] which began by seeking to free politics from the fetters of religion and matured by insisting the progress of humanity consisted in forgetting religious tradition altogether. and this law, this twisting of light into darkness, had the potential to turn politics into a sheer struggle for power. stanley rosen says the enlightenment led to the repudiation of reason by reducing all that is not objectively verifiable to the realm of rhetoric, rationalism reduces truth to a matter of perspective and makes all perspectives equal. and since our choices can only be justified rhetorically, that is by reference to compassion or philanthropy or utility, even equal i the is debased, reduced to the equal right of all desires to be satisfied. in this new world, the assertion of a perspective becomes its justification. the claim is that a particular perspective serves the general

welfare. what is really served is the will to power. the branch of the enlightenment provided the impetus to the revolution. the american revolution rejected the idea of reason that made war on human nature. the mistake of the french revolutionaries, in adams' view, was not contempt for tradition, it was contempt for man. natural rights, rightly understood, was a framework for governance that respected mans immutable nature. in the words of the poet, two roads diverged, and we took the one less ralphed by, and now we know -- less traveled by, and now we know ages and ages hence, that has made all the difference. or at least for about 150 years, it seemed like it would. [laughter] but liberty is hard. free government is not inevitable, it is only a possibility, a possibility that

can be fully realized when the polity is generally governed by the recognized imperatives of the universal moral law. it requires self-control and self-restraint, people capable of understanding that freedom is not the power of doing what we like, but the right of being able to do what we ought. natural law cannot always produce easy answers, and sometimes it cannot produce any. it is a response to a hard question. in the words of the psalm u.s., what is -- psalmist, what is man that you made him a little lower than the angels? this is both glory and curse, and in trying to design a government of the people, for the people and by the people, we must relish the tension that is an inherent part of humanity. we are not brutes, we are not gods. before architects had structural steel -- add structural steel and rebar, early builders

invented a partial solution, flying buttresses. it was this innovation that made the soaring knaves of gothic cathedrals possible. usthus, the buildings stood notn spite of the tensions generated by opposing forces, but because of them. human beings are similarly designed. so the longings of our heart and the destiny of our souls are forever straining against each other. when leff and unger -- what they see as the devastating -- i can never say that -- of modern human thought -- [laughter] those basic positions about reality that are simultaneously necessary and contradictory, the framers would easily have recognized. did not st. paul voice the same in romans 7? i have the desire to do what is good, but i cannot carry it out. and so i find this law at work when i want to do good, evil is right there with me.

for thousands of years, the idea of natural law played a dominant role in both philosophy and history. cicero, justice story's favorite among the ancient writers, tells us to law is reason, right is universal, it is um mutable and -- immutable. calvin coolidge in a speech to celebrate the 150th anniversary of the declaration of independence lamented that most of those that clamor for reform are sip sere, but were they more knowledgeable, they would realize america's foundation was spiritual, not material, and the founders were influenced by a great spiritual development who acquired a great moral power. to coolidge, only the exercise of god's providence seemed adequate to explain the declaration of independence, and he did not believe it should be discarded for something more modern. he concludes: if all men are created equal, that is final.

if they are endowed with inalienable rights, that is final. if governments derive their just power from the consent of the governed, that is final. no advance, no progress can be made beyond these propositions. if anyone wishes to deny their truth and their soundness in a direction in which he can proceed historically is not forward, but backward toward the time when there was not equality, not rights of the individual, no rule of the people. those who wish to proceed in that direction cannot lay claim to progress. they are reactionary. coolidge is exactly right, but now his insight seems counterintuitive. but even after great depression the spell had not been entirely broken. speaking at a conference of ninth circuit judges, i was really surprised that these were ninth circuit judges, but it was in 1946 -- [laughter] harold mackinnon anticipated arthur leff by three decades,

warning of the essentially anti-democratic and totalitarian legal and political philosophies gaining ground in american universities. such teachings, mackinnon believed, denied the preservation of natural rights. he argued that the existence of a moral law inherent in human nature which limits government coercion would be but a prelude to tyranny. be there is no higher law, there are no natural rights, and if there are no natural rights, the bill of rights is a delusion, and everything man possesses are held by -- [inaudible] of government, and if there are no exterrible truths -- external truths, if everything changes, everything, then we may not complain when citizenship changes from freedom to civility and when democracy relapses into tyranny. remarkably, our regime never made the unnecessary choice between truth and reason.

and for a time rejected the strict separation between what is just and what is legal. and it is this thread, a conviction that there is such a thing as human nature. it is fixed and cannot be changed and that this same nature provides a standard by which to judge political institution that united john adams, joseph story and calvin coolidge. to turn away from the principles of 1776 and 1778 is to turn back toward arbitrary government. that is why the idea of repointing the constitution is a useful analog. as it suggests not only repairing, but repenting and reorienting. in the early days of the republic, patriots hoped fervently for the perpetuity of constitution. they were exquisitely sensitive to the fragility of free institution is. story expressed