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 his well founded fears in a powerful metaphor.

in his government, he said, the centrifugal force is far greater than the seven trippal. thus, the danger was not that we would fall into the sun, but that we would fly off in eccentric orbit and never return. what he feared came to pass. the nation's faustian bargain could not be sustained. it shifted the balance from the state to the national government. america was granted what lincoln called a new birth of freedom. the declaration became an explicit part of the constitution, but our time is different, our task is different. in our age the sun has collapsed, becoming a dark star. a cosmic phenomenon sometimes called a black hole. with a gravitational pull so strong it can bend light and hold time hostage. our peril is not that we will slide too far from the sun; rather, it is that we are already too close, so close that

liberty may be entirely extinguished by the centrifugal force that overwhelms even the idea of limits. perhaps in a liberal democracy, government cannot be limited. the constitutional republic is bound only by the law of laws, and being a monopolist on all law enforcement can always untie itself. instead, in contemporary parlance liberalism no longer has anything to do with limited government. the regulatory state has expanded its reach to encompass education, social welfare and even the transmission of culture. judge and legal scholar michael mcconnell borrows without embracing a distinct articulated by john rawls between political and comprehensive liberalism. a political conception of justice applies to the framework of basic institutions where the comprehensive doctrine is one that address cans all aspects of life, including conceptions of what is of value; ideals of

personal character and ideals of friendship and mediating institutions. the constitutional principles of early american history limited the way government conducted public business but did not purport to tell citizens how they should live their lives. the first amendment followed exactly this approach. the american constitution, mcconnell writes, was an attempt to create a government strong enough to keep the peace and promote economic prosperity without the power to affect or coerce the ordinary lives or beliefs of a heterogenerallous people. contrast that thought with today's new vision, that the states should force the state to be neutral, tolerant and open-minded. and by the way, i have to pause here to say that some wisdom i learned at my grandmother's knee. one was it's a tine thing to have an open mind, but your mind should not be so open that everything in it falls out. [laughter]

or as c.s. lewis says much more succinctly, if your mind is open on these ultimate questions, please let your mouth be shut. [laughter] or consider the each more ominous view that government should force citizens to accept a singular secular vision of the good. this is where i think deference to the enlightened elite will take us, to aster lille, secular -- sterile, secular vision of the future where we were all democrats who lack any sort of faith were fighting for. while the earlier natural rights position fill gaps, the newer understanding constrains, constricts and reduces. this does not strengthen, it shatters the whole edifice. limited government should mean limited judges too. but so long as we have unlimited government, we may need a less

limited view of the legitimate role of judges. judges may need to intervene for the sake of individual liberty, and they must sometimes do so with reference to ultimate valuings. values. western civilization's great achievement has been to discover and synthesize a network of principles that jointly undergird individual liberty. that achievement owes -- [inaudible] to both athens and jerusalem. somehow those two sources of value jointly and must be inform the act of judging. the solutions offered by holmes and rawls and theorists like unger and leff end either in might making right or a coerced virtue based on an unnatural law that seems contrary to athens and jerusalem both, to the entire network of principles undergirding individual liberty. while it would take more chutzpah than i possess to suggest an exhaustive answer to the question of how to define

the ultimate values that inform responsible judge anything a constitutional democracy, there is some usefulness in saying no to obvious errors. the error of taking the perceived opinion among a certain social group and mistaking it for democratic consensus, the error of any construction of the constitution that authorizes up limited government positive rights when the clear import of the constitution, its text and context and history is a creation of a government unlimited powers aimed at protecting negative rights. the error of indifference to the writtenness of the constitution. reasonsness has two sides. conservative judges have vigorously resisted extra-textual ideas, they have much more adept at effectuating limits in the text. this is the point of recent books challenging judicial abdication, and their criticism of excessive deference has some validity. it is no more principled to permit actual limits to be written out of the constitution

than it is to insert obligations that were never there. this is a modest proposal. no theory of everything is in the offing. in fact, i think far bear is right, that april januaries defined -- brilliance defined as new ideas that turn conventional thinking on its head should count heavily against any legal theory. [laughter] neither the reason that has destroyed divine authority or the untrammelled will that destroyed self-government can be endured. we must live with our tensions, for the i true way is in the middle. politics is downstream of culture, and the cultural problem will always turn out to be a religious problem rather than fleeing from the sacred, perhaps we must embrace it. in the orthodox jewish tradition, the world is filled with god's glory.

protestants secured a law-free space in which to encounter god. in the city of mann, the world is filled with law. in other words, the source of our differences may well be religious, for a person's or a nation's relationship to liberty is a spiritual matter. coolidge was right about that. still, we cannot have it both ways. for the promise of the permissive cornucopia offered by the unlimited state, we give up freedom. earlier, i acknowledged if the state is limitless, maybe judges must be too. but that's second best. the unlimited state is never a mere instrumentality. it cannot remain neutral to the good. the question is not whether we will change with the the times. we will. the question is whether we can repoint our constitution so that we may preserve the fortress stones, renewing the political, legal and constitutional principles that made us an exceptional nation. i wonder -- a wonder in the

world, a land of the free. it turns out that if we would be free be, the unjudged judge is a logical necessity. some widespread consensus must exist. even high yak conceives the preservation of a constitutional liberty requires commitment to a metanarrative privileging ordered liberty. otherwise liberty loses to expediency every time. the grand stays who is not enough. if you want liberty, something more awesome, powerful, glorious, worthy of reverence and unquestioning obedience is required. something like the spirit that moved upon the deep and spoke the world into being. the one who lit the sun and laid earth's cornerstone when the morning stars sang together. the god of the logos, the great i am. [applause]

[applause] >> think you can see from that response how much we appreciate your fine words today. and the judge has agreed to take a few questions. and who would like to ask the first question? yes. roger? >> thank you very much, judge. i really enjoyed that. i'm roger clegg with the center for equal opportunity. let me ask you this, would an atheist judge go about deciding the meaning of the constitution differently from a christian judge? and why or why not?

>> wow. [laughter] i thought these were going to be easy questions. [laughter] hmm. that is really interesting. you know, i don't know. it's -- because some of my best friends are-innertarians. [laughter] are libertarians. and they are mostly people who do not believe in, you know, in a supernatural being. but nevertheless, i think they would recognize that if you're going to have limited government, something, you know, must be the source of authority. the problem with this lack of normative foundation is all you get is, you know, whatever anybody wants to do.

so i would hope that if, in fact, you're atheist or christian, it wouldn't really make any difference as long as you are committed to the limited nature of the regime. [laughter] >> okay. the next question. yes. >> i'm with the institute for justice. you've talked a lot about the declaration of undependence this evening. independence this evening and its role in setting forward fixed truths about human nature and about the role of government that are true everywhere, in all ways. and you also made reference to the 14th amendment as a means of bringing the declaration into the constitution explicitly. more than one justice over the last few years, including famously justice and arrhea, has said that the -- scalia, has said that the declaration of independence is not part of our law. >> i know.

[laughter] >> and justice kagan, in her nomination hearing, was actually -- can her confirmation hearing, rather, was asked the question about the declaration of independence, and she said, basically, to the extent that there are rights out there, i wouldn't want you to think that i should enforce those rights. so how would you respond to that, and do you have any broader thoughts about the declaration in its reference to the constitution? >> well, you know, it's clear that the declaration was not part of the original constitution. there's a kind of interesting debate about that. one of the things that mcclellan says is, well, you know, they didn't put that in the constitution because by time they got around to drafting the constitution, they were so over all that natural rights stuff, right? i mean, that was done. you know, that was the kind of exuberant thing that they did. but then when they got around to the constitution, they were very

sober, and is they did not bring that up again. my open feeling is that -- my own feeling is that the reason they did not say anything when they drafted the constitution about the declaration of independence was they understood what those words meant. and just as it happened in massachusetts, it would have meant the end of slavery. right? i mean, you know, that language was very powerful. so i think that's why it wasn't -- because they were very careful in the constitution. they were trying to hold this together. they were trying not to make -- you know, to keep this compromise working. and so they were very circumspect in all of their language about slavery, and they didn't say anything that would immediately precipitate that. but i still think that that was a background consideration to what they were doing. i don't think it was just, you know, sort of something that happened because they were trying to justify declaring

their independence. so i think that was always in the background of what was happening, and i think the civil war congress, the republicans clearly thought that that's what they were doing can. they said so. so i don't know. i mean, i can't answer your question about how other judges look at this and, you know, decide that this is not there and that we should not have any concern about it. i mean, we have a court that has just, you know, refused to acknowledge that privilege is an immunity that's in the constitution. so we have, you know, clearly there are currents in the jurisprudence of the supreme court that i cannot explain. [laughter] and won't try to. [laughter] >> betty?

>> thank you. benny clauser in from the reason foundation and the individual rights foundation. this is a great moment for heritage foundation and a great moment for the audience and the broadcast audience. my question, back to your theme of repointing the constitution, would you look for the type of mortar that wouldn't be too strong but maybe would be the best for refrom serving the bricks -- preserving the bricks of the constitution? a little bit of -- [inaudible] in that mortar? is. [laughter] >> well -- >> [inaudible] >> he keeps telling me i have to speak into the mic because of the -- i forget. i'm a pacer. [laughter] boy. well, i'm going to, i'm going to take the coward's way out here. i am a sitting judge -- [laughter] so i'm going to decide that

discretion is the better part of valor, and i am not going to say anything more about that. [laughter] >> john? >> so i want to pose a question. did the declaration come in via only the 14th amendment, privileged immunities, or was it in the main document itself? there's also a guarantee of a republican form of government, there are some principles there that seem to follow the declaration. >> yes. >> we, granted, have compromises with those principles and have to live side by side, but isn't the root there first? and if it's, how should a judge go about giving voice to those original claims? >> you know, i think that you make a good point. and i believe that there was much in what they did which -- because my point in really focusing on the declaration of

independence was what was it that they saw as necessary to limit government? because, you know, this was the new thing that they thought they were seeing, you know, in terms of governance. one, that consent had to come from the people. and, two, that there were limits on what government could do to coerce a certain kind of creature, right? so i think that that was very much a part of what they were doing and that there are several things in the constitution which probably reflect that. but i have to acknowledge that a they were very careful. i would say even the preamble has a little flavor of that. but i think they were very careful not to say that out loud. >> clark? >> i'll try to give you an easy question, your honor. >> thank you.

i've been waiting for the easy questions. [laughter] by the way, heritage promised me only softball questions. [laughter] i think i need to have a little truth in advertising discussion with them. >> well, i don't know if it's a softball question, but i think you'll get a base hit at least. [laughter] you know, you serve a lot of different judges in your career. can you identify one or two qualities that are the qualities that you think -- you find most admirable and desirable in judges from both sides of the aisle? what are those one or two qualities that you think really are the hallmarks of a good judge and the kind of judge we should want on our courts? >> wow. [laughter] well, you know, it's funny, i have been on a lot of courts, and and i've served with a lot of different judges, and all of them are quite different. but i think for me what, you know, the thing that i like when i have a colleague who really,

you know, is engaged, that really wants to dig into it, who's there because they love the work and it interests them. and so -- and who are willing to, you know, take the extra time to thoroughly investigate something and especially someone who, you know, when you have a disagreement -- and this is the thing about appellate courts, you know? -- if you're a trial judge, you are the king, you know? your word is law. you can just whatever you say, you are like yul britainer -- you'll britainer as ramses. [laughter] so it be written, so it is dope. [laughter] when you're on an appellate court, it's a symphony, it's never a solo, so you've always got to have the ability to work with the other judges.

so one of the things that, to me, you know, is one of the best characteristics of a judge is somebody who when you have a disagreement actually goes back and thinks it through. doesn't just, you know, grudgingly put in a couple of words and say, okay, i've addressed your concern. but goes back and actually says how does that idea change the way i was approaching this opinion? you know? [laughter] >> nick. >> i think, i think we're done. [laughter] [applause] hope so. [applause] >> well, judge, one of the things that we present in recognition both of your distinguished career as a judge and in the other jobs that you've done, but also of your talk this evening and your

excellent thoughts and ideas and thinking and research that went into your fine work for tonight's talk, this is our statue of liberty, defender of liberty award. >> wow. >> we're happy to present this to you. >> this is gorgeous. thank you so much. >> and also with it we have a -- [laughter] >> oh! >> we have the -- >> going to add to my library. >> commentaries to the constitution of the united states in two volumes by joseph story. >> oh, this is gorgeous. beautiful. >> and also what we call the familiar exposition of the constitution of the united states by joseph story and with all mod is city, i must say it has a forward by me. [laughter] [applause] so now if you'll join us all, and we have -- in the foyer, we will have a reception where you can personally meet the judge.

but before we leave, i just want to thank you again personally for being with using -- us, for all you have done for the law and particularly for being with us tonight. thank you very much. [applause] [inaudible conversations] [inaudible conversations]

>> c-span's campaign 2014 coverage continues tonight with three debates. at 8 p.m. eastern, the new hampshire senate debate between incumbent democrat jeanne shaheen and former massachusetts senator republican scott brown. at 9 p.m. we bring you the oregon senate debate between incumbent democrat jeff merkley and republican challenger monica webbe. later at 10, the louisiana fifth district debate between vance mcallister and six challengers including five republicans and one democrat. that's all tonight on c-span. >> you can see debates and ads from races around the country on our web site, c-span.org. here's a look at the kansas senate debate between incumbent republican pat roberts and inget greg or man. -- independent greg orman. >> how should we deal with the ebola epidemic, senator roberts? roberts: well, again, this shows

you how we should really secure the boarder and not be granting amnesty -- border and not be granting amnesty. i issued a statement just a couple of days ago. why can't we do now what we know we're going to have to do down the road, and that is to have a quarantine on west africa, stop the plane traffic, the air traffic from west africa to the united states? we also ought to get our best and brightest over to that country just as fast as we can. the world health organization just if we do not -- just said if we do not take action, within the next 60 days we could lose 10,000 people a week. that's a humanitarian disaster. but again, this all goes back to isis, ebola and the other problems that we see on the border. we must secure the border and secure the national security of our fellow americans. >> moderator: okay. thank you, sir. mr. orman? orman: ebola's obviously a serious issue, and i think we need to have a serious, coordinated public health

response to it that does include sending the best and the brightest over to west africa to deal with that problem. i also believe that we should suspend air travel with west africa for the time being until the crisis is contained. but this goes back to sort of a crisis in leadership. you know, senator roberts has come back and has made some very strong statements about ebola when he's back in kansas, but it just came out the other day that when he was in washington last month, he skipped a hearing on the ebola virus. and so i think it's inappropriate to talk tough here and yet when you had an opportunity to do something about it, senator, you chose to skip the hearing. and i think that's a real problem for kansans. >> moderator: rebuttal, senator roberts? roberts: the hearing was held out of session during september, nothing of substance came of it. we have a crisis of leadership, all right, with regards to this whole situation. i think that the administration,

more especially the president, again has been two steps behind and asleep at the wheel. we ought to do now -- he just said that this was a much, that he will have a much more aggressive program. we don't know what it is, of course, yet but we're going to have a much more aggressive program. it is the president that i think we have to look to for this kind of leadership, and we're looking for his plan or strategy. we don't know it yet. we have to do it -- >> moderator: sir, your time's up. rebuttal. mr. orman? orr or well, again, the crisis in leadership in washington is on both sides of the aisle and, senator, while you didn't attend the hearing on ebola, it's also come out that you didn't attend two out of three hearings in the agriculture committee, a committee that you want to lead someday. and so i think that crisis of leadership is a crisis of leadership that you share in too, sir. >> here on c-span2 we are live in the house rayburn office building for a hearing this morning on the federal response to ebola.

darrell issa, the chair of the committee, has gathered a number of witnesses including the health and human services assistant secretary for preparedness and response. the president's ebola response coordinator ron klain who just took over the other day will not testify this morning. there is congressman eye saw, center of your screen there. the hearing about to get underway on the morning after the report of new york city responding to its first ebola case, a man now in bellevue hospital, a doctor, craig spencer, who had been working with doctors without borders in west africa. he came down with ebola and turned himself in, came into bellevue hospital -- actually, was taken to bellevue hospital yesterday. so new york responding to that. throughout the day we're going to be asking for your thoughts on the federal response to ebola, and you can do that at facebook.com/c-span. we'll look for some of your comments later on. live coverage here on c-span c-span2.

[inaudible conversations] [inaudible conversations] >> witnesses gathered, the chairman in the room, darrell issa, a number of democratic representatives, members of the committee as well as they get set for the oversight hearing on

the federal response to ebola. president obama is offering federal support is new york as it responds to its first ebola case. he spoke thursday night to mayor bill de blasio. [inaudible conversations] >> ladies and gentlemen, before i gavel this to a starlet, i think you already -- to a start, i think you already heard, please put your cell phones either off or preferably on airplane mode. you're certainly welcome to take pictures as long as you don't stand up or in any other way block other people. we have a large panel today, members have flown in from all over the country to hear these people and to ask questions, so the only thing i ask is that, please, give them all the opportunity to do that. ..