there is a desire from people who think they can solve the problem or people who are injured who want a new law specifically for that issue. i don't understand what the flaw is in the current state of the law. >> so what is the flaw in the current state of law and why do we need it in this case. do you want to start? >> i would be happy to. the initiative didn't start with any high-profile case. the jennifer lorenz packing isn't where it started. we started two years ago when people were being affected by this and it is all the same to me that the finally society cares about it. this has been something that has happened to citizens for years so it isn't a case we are responding to an out of the sense that now that it's happened to someone famous we care. we care because the experience has been the none of these laws work. if the images out there and it wasn't by someone trying to

harass, just to give you a concrete example from a couple weeks ago the california highway patrol officers arresting women for drunk driving and taking their phones and share them with each other. he didn't even want her to find out about it so they are simply going to be located with stalking and grass meant and that's not going to be enough so for those that think the laws are adequate i would ask the victims if they think that is true. ask what has happened, and he times they've been told it's your own fault for taking these pictures and gets turned away by lawyers who say yes we could go after this but he's operating this out of his basement. there's no money and no reason to pursue this. for all these reasons we are responding to an issue where victims have come forward and said we cannot get any relief and i'm not going to second-guess the victims because

they are the ones experiencing this firsthand. >> if law enforcement is telling women it's your own fault this is happening to you, that's wrong. that isn't just morally wrong and a false understanding of how it's -- what it means to take your own photograph and share in an intimate setting but it also probably indicates that they don't understand the laws that do exist. >> by no means i hope that no one gets the impression that i don't know anyone that thinks criminal laws are the silver bullet to this problem. we are asking companies to think their policies and engage in educational programs to inform people about why this is a devastating to go practice and we are engaging in the law enforcement and others because we want them to understand so by no means is that a silver bullet but much like in the 1970s and

1960s when violence wasn't considered a crime, there is an importance of social and legal importance to recognizing this is the harm that should be addressed in the theory. >> did you get a chance -- >> if we have a range of walls on the books that might be useful in different cases whether it is privacy, public disclosure, going after it from the angle of the copyright remedy or intentional emotional distress there are walls out there that are the way that society has expressed it is wrong and it's not going to mean every single instance in this exposure there are going to be gaps where the case doesn't fit into every single aspect in the

current law that if we'd try to craft the crime that is expansive enough to find to cover every single instance of an exposed photo we will sweep another kind of content and expression and it isn't going to survive the first amendment scrutiny so that is the challenge we are facing is there is no silver bullet and it's difficult to figure out how to get this approval over the information that doesn't run afoul of the first amendment. >> a getting the companies to look at the laws that they enforce and writing it was interesting to people for arrest and many of us that facebook has got an better at dealing with this. they take the report seriously and they try to educate themselves. whether hasn't done that yet. they do not have the form to report abuse and last year it

was insane and it's been around since 2007 and i hope they are taking it more seriously because they can do a lot. twitter is in on the public internet and bacon made it easier for the people. >> going after the case example for the day a lot of these images were circulating for a long time on websites that will up when they hit that had a thread that make these go viral which ivy league eventually was shut down. but it was a question i have heard it said many times the most wonderful thing about the internet is also the greatest flaw for the users to use the way they want to and it's difficult to say a website based

on the idea of people having over in four runs also need to be responsible for them making judgment calls when it crosses the line so what are some of the difficulty with that by david or bob might want to jump in on. >> the biggest problem is the people -- >> it is about the emotional distress. i would suggest we need to rethink the emphasis on distress when people are engaged in these activities, the jennifer lawrence, why are people doing this because they think that it's sunny and entertaining. it is and to cause emotional distress so why are we holding onto that is the one thing that we would penalize. versus trying to make people

laugh. why do we think that's a better, why if he is getting ad revenue why would we say it's fine if you do it for that just don't but just don't hurt her feelings that seems odd in the public humiliation. >> don't you need to have as part of april edition i think that may be you misunderstand but you have to have some reference to an improper purpose not saying i don't think like the arizona statute which i think is clearly unconstitutional that you cannot post a picture of someone without their clothes on. >> but that's not what the statute says. you have to focus on the improper purpose. >> it's meant by causing distress though it doesn't have to be focused on that because

there is a conflation of the intent and motive. the motive why someone does something by what that matter they are doing it because they think you are funny looking or because they think that you are a rousing doesn't matter. when you look at different categories back to the theme of jennifer lawrence calling this a sex crime think about the way they tend to be worded not in the sexual assault that is not how we think of sexual assault. we think of it in terms of content. there are certain forms into this is true in our identity information and our other forms of privacy. we only criminalize the disclosure when you intend to distress me with them? no and especially with security numbers i thought it would be funny to put your social security number out there. i didn't mean to hurt your feelings. when it comes to intimate information that's why it has to be stated and defined the motive why someone is doing it shouldn't be the point is the lack of the content and that is

something that's becoming clear to us as a society is that we have serious problems with the sexual consent understanding that is true we can see this in terms of how many of the assaults are committed every year but also in the sense that we seem to take it as a given that it doesn't matter whether a woman consented to the use of her body for sexual entertainment or enjoyment and i think it's about time we start to understand that. >> wasn't this lawrence rather than hacking? >> social engineering is still hacking. it's the easier kind often. >> it wasn't necessarily the hacking of the phone.

>> apple has come out and said that their systems were not hacked which is to say that apple wasn't that they didn't rule out that individuals through sophisticated techniques whether it was phising were able to get individual accounts they did and they leave they were authorized. >> they are not specific about the products like this and they have a history of the device security. a cloud security had issues. >> also to that question does that matter? is that a significant distinction we are talking about? between the difference in this case where you have sort of a perhaps a violation or where does the distinction come into

play? >> going back if you think that consent is the fulcrum to provide the line, then whether you have hacked into someone's account or you have a photograph that was sent to you or you had access to that account in a perfectly reasonable way, all of that would have to be evaluated. there is a much larger debate about the role of consent generally with respect to information on the internet there is an act of the international debate with respect to the so-called right to be forgotten and there are the various laws where because if you no longer longer consent to having information that has been published without you you can sort of withdraw the content

and websites have to delete information that may be floating around about you. not to beat a dead horse but there's a familiar landscape in the first amendment debate that has been in the background of this privacy information debate for many years. this is related to this idea that the only information about them. if they want to publicize the very things about them that have serious difficult issues about

free speech or first amendment issues because it is very difficult to value whether it's been given and value how you demonstrate consent and have a very serious impact on the sort of things. in the office building if i owned that information is an extreme example nobody suggests we should have such a role with respect to balancing the free flow of information on the one hand and the reasonable request for the showing of consent with respect to some information on the other. >> i think that's right and one of the reasons i'm actually optimistic about this type of material because there seems to be a fairly easy way to fix this. you want to disclose somebody's

image ask them to sign a form. we certainly have something like that when it comes to modeling releases and medical records if you want to submit this information and you think it is consensual because that is the only stance to take to make sure you have evidence. this isn't nearly as hard as the right to be forgotten or the question of what people can say about you. it can be resold through paperwork. >> i saw one more hand right here. >> a given that there are takedown regimes for child pornography and these other protected would have used what it be that much more burdensome to require search engine inside facebook and other types of companies to take down we venge pornography and do you think it would possibly impede the growth of small businesses?

>> there are a couple things you have to keep in mind when you're talking about a notice in the takedown regime. what the notice does is give the person the mechanism to take down someone else's content uploaded by another person and this is a mechanism that has been helpful taking down copies of movies and songs but also at its heart it's giving a person the ability to take down what that other person has uploaded. and so the potential for the abuse of the systems is very high when you look at something like the copyright takedown system there are different systems based on what do you have to include in the notice it's got the ability you have to identify yourself including contact information and that you

are the legitimate owner of the copyright. the person that uploaded the content has the ability to push back and say no this is my content or i've been making a fair use of this copyright work or what have you and they can fire the counter notice and they put the information backup line and leaves them to fight it out in court so it's not a simple mechanism saying saying give somebody an easy form to fill out into the information comes down and you're set. there's a lot that needs to go into how to construct the takedown mechanism so that it is not so full rubble to someone using it to say i don't like what that person said so when going to by going to file a takedown request and abuse the system. one of the challenges we have to think about when we talk about questions around new images is there's a sensitivity and privacy interest if it's been posted without your consent on

line you will want to file a takedown request and get it taken down if you have to identify yourself in that would cause privacy concerns but if it's somebody else trying to abuse the system and you've uploaded your photo under a pseudonym and you're happy with it being out there but you don't want it connected with your name and somebody else is trying to abuse the system to get the contents taken down your ability to respond and to say leave it up requires you to disclose who you are so there are complicated issues about the vast range of new imagery that is available on the internet. some of of it is this nonconsensual posting but there is a lot of it that is uploaded anonymously with the full consent of the people depicted so that is what is all although the effect and consequences that's another one that we have to take into account.

>> in the takedown regime is worth exploring in this context. to clarify the existing notice and takedown schemes and in particular the copyright which has been the one in section 512 does require the burden is on the party. it doesn't say google or facebook or twitter. it's copyright infringement. you have to respond to the copyright identification of the material which has been contentious the last four or five years but they've more or less come to that resolution that it's the obligation of the party to find them and it isn't a trivial obligation to find the material and then to send the notice at which point the process comes in and there were all sorts of protections you do have to be careful about

allowing something to be abused. if it is too easy to separate a takedown notice, people will be using it for purposes that have nothing to do with the harm of trying to protect that all of those i think are -- the devil is in the details. the copyright takedown regime one wanted to go in that direction and i think it would be worth looking at carefully to see how it has worked and how that might be able to streamline in that sense it has removed them and another copyright industries are not crazy about it because they have to find the material and they don't like that on the other hand people think it has a salutary effect it's done the job pretty well, it's provided a process at the

scale and the scale is important whatever we are talking about. we are talking about millions and it's allowed for the automation of the takedown. they are given an avenue to say this is useful. i didn't post it or whatever the defense might be said that would be an interesting comparison to look at that carefully and see how it could be modeled to work on this problem might be a useful avenue. >> you mentioned the search engines and one thing we should be careful by going too far can have the contents to look at the uploaded because they own it and they have a lot of computers on hand but they also have a known universe of the material that they get from the initiative they can use to match against this there is no such thing that comes to people's private photos and giving a general search

match but the sites can do because there is no consensual anything. they can do a search against the mathematical shortcut in the database. it's to send a picture of a naked person in an e-mail and that isn't going to work. >> it isn't always easy to tell whether they are a minor so they do have to engage in some judgment calls and investigations. not necessarily more onerous to figure out if it was consensual. >> it is a promise to keep it to sit commitments that we were close, so a conversation that

could continue for hours and we appreciate all of you coming. [applause] president obama will have his first meeting with 16 congressional leaders this afternoon including mitch mcconnell. it will happen at the white house today. the associated press reporting they will discuss the agenda of the rest of the year including the budget military action against the islamic state. we will have it later on the programming and you will be able to see it online at c-span.org. another congressional race has been called today conceding to

the congressman john delaney and the race in the race for maryland sixth congressional district acknowledged the congressman's victory in a statement saying it's time to move on and allow the citizens to be heard. the associated press declared the congressman as the winner last night after an absentee vote count. the result leaves nine house and two senate races too close to call. for the latest in the raises you can log on anytime to c-span.org. coming up in about an hour better in affairs secretary robert mcdonald will be speaking about efforts that will be at 1 p.m. eastern. also on the companion network c-span u.s. ambassador to the un samantha power will be speaking at the american enterprise institute talking about the potential changes to u.s. peacekeeping and again that starts at 1 p.m. eastern.

to a discussion on the constitution and to the will of law at the hearing to which foundation the dc circuit court of appeals janice rogers brown speaks as a part of the lecture series honoring the former supreme court justice joseph and the judicial restraint. this is about an hour.

[inaudible conversations] ladies and gentlemen welcome to the heritage foundation. we would appreciate everyone taking their seats so we can begin the program. again thank you for joining at the heritage foundation. i'm the director of collectors and seminars and it's my privilege to welcome you and those joining us on the website and those joining us on c-span tv. we been asked to make would ask

to make sure your cell phones have been turned off especially when the weather bulletins come it's amazing what happens. and we encourage you to watch the program posted for everyone's future reference as well. we will be introducing the special program and the honorable edward meese served as the 75th attorney general of the united states and served heritage as the ronald reagan judicial studies. mr. meese. [applause] we join you in welcoming the foundation and particularly to the annual lecture. this is the most prestigious legal event of the legal centers preserve constitution series and

it's also part of the beatles trilogy for him that is taking place today and tomorrow and the primary legal officers of the freedom base public interest law organization through the country some 40 of them get together to plan their efforts to defend the constitution and bring justice to the people of the united states. we are glad to have been with us 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 second because of his influence on the law. he had one of the most outstanding impacts on the development of the 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 the story that didn't

always agree with justice story said that he had done more than any other english-speaking man of the century, in his century to make it illuminates it easy to understand. he also served as a professor of law at harvard university. he was almost single-handedly brought back to the university mall center into being in the year before he arrived to add only one student. he expanded the student body was part of his contribution of law. some interesting to note why you want the supreme court he continued the pattern that the early justices always followed to the circuit and for the appellate courts and occasionally the trial 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 had a very busy schedule that he followed and carried out in a very distinguished and dedicated manner. we will note in the justice's experience in his broad activities related to the justice system. they had experience in every aspect of the justice system. he's married to dewey parker with us this evening and graduated from the ucla law school and received her degree from the university of virginia in the graduate program for judges. to show the variety 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 in the first experience in the legislative counsel's office dealing with the state legislator as she served in the attorney general's office which is almost a separate branch in california. she was a deputy secretary at secretary of the general counsel at a general council of the states business transportation and housing organization and then ultimately was a legal affairs secretary to the governor pete wilson. she then had experience in private practice in one of the state's distinguished law firms and then went on to her experience. on the california supreme court. they appointed her as the judge

of the court of appeals where she continues the service to service to the nations of ladies and gentlemen please join me in welcoming the distinguished lecture for the year 2014 the honorable janice rogers brown. [applause] thank you. you are 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 lecture. i am honored and frankly a bit and intimidated to be in such company. i have attended many of the

other electors and i especially want to express my gratitude to add me as for his friendship and his kindness and for being. for those of you that do not speak yiddish it means a man of integrity and honor. but for the general's courage and integrity, conversations like this probably would not be taking place. >> we are all indebted beyond anything that we can repay because he took seriously his oath to support and defend the constitution. [applause] this is where i usually offer my caveat and tell people i am not a scholar or a philosopher and certainly not a theologian. but today i'm going to do something a little different and speak as a conservative and as a

conservative judge, one who has a good fortune to be particularly well educated having a stake in ivy league education i now find myself however i like. i suppose if i had been around when the judge was teaching at harvard i might have rethought that. but as a conservative, i spend most of my time thinking about the present evils of this world unlike my counterpart to spend their time thinking up new ones. [applause] and these days i find myself thinking i have to think of good reasons to keep on keeping on. for those of you that don't know why this, youtube.

i have a new appreciation for the reform. aren't things bad enough already? perhaps that is why athletes of the conservative discussions about the constitution and about american constitutionalism generally have had a remedial if not downright allergy at toad. we speak of reviving, repairing, and defending the constitution. i do not think that our sense of urgency is overblown. our panic is justified. the title of the speech had my dates to the theme of her dalia for co preserving the liberty. my analogy is wrong from the stone. i suggest we might also consider re- pointing the constitution. some of you that do not let an old brick buildings may be unfamiliar with the term.

when we moved to washington, d.c. we purchased a district into being from the valley in california, the parts that had little experience of the roadhouses warehouses of any kind we were completely unprepared to deal with the requirements of the structures that had been withstanding elements for more than a century that even as we were moving boxes the next-door neighbor drove by to expect delays and dust because they were having their houses reappointed. it's between the bricks than any other cause. there is a replacement having property similar to the original

border. according to the author of the stonemason modern materials can hasten the deterioration by being so bad over the seasons of change they crack the bricks a calamity that nothing can repair the love child of the modern enlightenment and the postmodernism that has ruined the constitutional edifice and original understanding is we must ask we must ask ourselves what were the ingredients that gave us statements.

the limited government was conceivable and can we be so greatly changed to capture the optimism and and servitude of the founders and a way of big government but none of them could have imagined. it was the dream of the most sophisticated grown-ups of good riddance. though america seemed a miracle was only a product of its time destined to fail as the sensibilities that produced it faded from the national conscience. is there anything to be learned about the constitutional reappointing from the judge like joseph story perhaps. a couple examples of constitutional interpretation based on very different species of the normative reasoning may bring the issues into a clear focus. at one time the judges wrote in

interpreted text based on the anchor of the constitution. the 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 was strongly reminiscent and confirmed that all men are born free and equal. while she was a toddler in the high court of massachusetts held both words were incompatible. the the chief justice advocate of slavery had been an accepted usage but he concluded what ever prevailed a different idea had taken place to the people of america more favorable to the rights of mankind into and to the natural desire of liberty and i have to quote this part because i loved it so much without regard to color the complexion, the shape has

inspired all of the human race. he condemned slavery as repugnant to the national rights of man yet this republican who professed he was in always had been a devoted lover of the constitution of the united states and a friend of the union wrote an opinion in the pennsylvania declaring the statute making it substantially more difficult for the slave catchers to recover the fugitives unconstitutional. they placed the supreme court in the midst of an intense moral and political conflict and the court heard arguments in the constitution as a proslavery contact but but why but while it was built on a compromise that didn't forbid slavery. he saw the constitution itself

as the means by which the wrongs would be in a. of you eradicated. it is a triumph of freedom and he foreshadowed when in with cultural congress that they might save or lose the last best hope. ;-) next to preserve the union which the constitution had brought into being. he was prepared to exhibit was ever whenever patients was required to support and defend the constitution and it might be said of him if he said of justice marshall that when others despaired the republicans would have allowed it to succumb to its necessity he resisted the impulse and clung onto the union and mailed its colors to the constitution. although in the early period they distinguished between the frame of the government and personal as we would seem say natural and inalienable rights which are not the same as the

abstract rights of man they recognize the natural law as the reason that exceeded their authority would violate the natural law and whose name they purported to act. such included concerned about the preservation of the structure which made the liberty possible. unless the framework of limited government the constitution of liberty was preserved the project would fail. they take issues in the assessment and they assume and accurately it rejected ideas of the natural law entirely. otherwise they would have recognized that the constitutionalism presupposed conception of individual freedom and slavery the conception that should have informed the positive law. the professor said the stories

misunderstood the way that the choices and political interests necessarily informed the legal doctrine but what they identified at the reasoning has quite a different route than the natural enterprise. for the judicial reasoning it requires judges to identify abstract justices he said he wouldn't have settled for the easy answer but both deny that there is any source of authority independent of man and in contrast many modern judges see themselves as translated that to the generalities of the evildoing constitution. can the senator's position on the death penalty in the 1986 speech he described the constitution as a public text and a sublime oration on the

dignity of man whose inherent ambiguities that judges must resolve. that's in the process of translating the generalities of the check for the justice concluded capital punishment is under all circumstances cruel and unusual punishment prohibited by the eighth and 14th amendments. he acknowledged its one to which the majority of the justices or fellow countrymen subscribed. he ignores the fact that the text does not forbid capital punishment but instead articulates what he sees as a larger constitutional duty. i hope to embody the community although not arrive striving for dignity for all and in short he would impose the bias even though beneath contradicts the text of the constitution.

in his view the task isn't the patients reporting but that the constitution licensed the judges to identify and impose their own principles. perhaps the justice cannot be described as reappointing the constitution was new but weakens the ingredients on which relied. there is unshakable faith in the natural law as a universal objective. if we are to report the constitution today, these understandings seem to be essential ingredients. the justice used a different framework from the normative concern about human dignity and the phrase that is highly

undefined he then purports to give meanings to those values and surprisingly both justices are identified as the natural journalists but it makes no sense to put them for the latter would dismiss the principles to which the early judges were devoted as relics of the bygone age and is easy to trace the trajectory that has landed the modern jurisprudence in the predicament but if it was a seamless the author reviewed the book knowledge and politics. he asked how does one tell and tell about the difference between right and wrong?

how can one ground in the grounded in the form it's right to do in anything then the quicksand of the reader rated assertion if it is admirably candid about the near-term implications of its conclusion but about the reason for rejecting the obvious solution. if there is no external force to ground the normative assumption the answer to why it would have to be because he believes so i called this the zip code. jurisprudence were because it represents the general will. finally, he explains the stakes if he tells them human nature is defined as the good there can be

no argument for change and in that case an intellectual rightly appalled would have no role at all to escape that possibility, the good is to be not what people were now but what they are becoming or could become ever more perfectly. it's impossible to see this without the warning that the ambition would have its weather at the expense of emancipating slaves or the freemen. >> it contains this passage he says moral discourse always presupposes the acceptance of humanity and the authority of the striving to become ever more human. he goes on the first assumption is that there is a human nature though one that changes and develops in history.

the second is that it constitutes the final basis of the judgment. the professor gave us the academic tour on the absence of the values and he says if we cannot believe in the complete and a minute set of propositions about right and wrong. we would live righteously than a old premises for the rules floundered on the problem does the grand. for any to be unquestionable, the evaluator must be on the question. the creator of the values in

short. the result is the elimination of the coherent or more than momentary convincing ethical or legal system depended upon finally authoritative extra systemic premises. this is the way of saying forget about constitutionalism or even a rule of law that is even or than skin deep. they rejoined the early educational effort and a dogmatic belief in objective doubt he was necessary to the very idea of the rule that isn't slavery. it is on this value to believe certain attitudes -- the founder

presumably -- hold these truths to be effective and long way associated [inaudible] itself evidence all men are created equal and that they are in doubt by the creator with certain inalienable rights and among these are life, liberty and the pursuit of happiness. they pour claimed the statement the most famous single sentence ever written in the western hemisphere. or perhaps the most second famous.

for the 40 somethings may be the force be with you. you get the idea. and yet as acknowledged what seemed as self-evident to mr. jefferson would appear either false or meaningless and superstitious to the great men that shape our political imagination, men like aristotle, machiavelli, hobbes, mark's. we need to go back to find the discouragement. we can add the names like bulls in and roosevelt to the list of those that argued for the liberation from the constitutional piety in favor of the reevaluation of the constitution. natural rights and its evil twin seemed to move. thus the modern idea grew up side-by-side with the refusal to accept any belief in the

objective value. this is a problem for modernity and limited government and liberty. it's a proposition on which it was founded and though the principles must be reinterpreted to apply, what future exists for the regime founded on the return of. this is where the life of the judge that favors limited government becomes difficult. it doesn't recognize the moral norms cannot limit the state's power. indeed it isn't clear that the philosophy that does recognize absolute norms can limit but it is rooted in the object if judgments about morality or justice or nothing. to the force of the conceptions of what is right and wrong is

ultimately to justify tierney in its most naked form. with good intentions conservative judges, the judges was convicted of the activity of the founders and tuitions and most anxious to the constitutionalism that can effectively limits the government instead of defending the constitution unilaterally disarm the with high hopes and grand theories that proponents of the constitution have rewritten the charter but it's incoherent or both. it's useful understanding the result. the consequence of going into business for themselves. once the skepticism becomes pervasive neither the theorists or the judge has any place to stand and the denial of any

reality beyond convention is both coble and incoherent and leaves to the different about the destructive errors. if as the late judge argued there is no way to navigate the claims. i get that his position has the virtue of being entirely consistent and i understand why that recommends itself. on the other side it has no content to fill the void with surrogates of their own design. these are void of any normative authority and range from generally accepted standards to

the radical personal convictions it is worth considering where v. is translated these translated into spoils of constitutional interpretation lead. the best example i can give you is of the israeli supreme court it's safe to talk about him. he is candid about what he believes or how he does this and he doesn't have a constitution so it is a little bit better. he argues they must defend democracy by defining ultimate values and he suggested a process of conviction must take place among the members of society regarding the truth and justice of the norms and standards that people cherish before they can say that it has been reached. coupled with judging based on

the generalities stated in the single word like dignity, the approach allows them to impose subjective dispositions under the guidance of the objective standard it very similar defense of the subjectivity. it seems to me that the judicial adventurism are both problematic it's either democratic despotism or supremacy. on this record it's hard not to sympathize on the restraint and i consider myself to be one of them. it is a principled position to promote what the judge called it the morality of the charter rests a discipline that requires the judges to abstain from giving their own desire free play. self-restraint is part of judicial prudence but the

founders believed human nature provided a standard by which to judge political institutions. the arguments for the ratification marshaled in the federalist papers were framed in terms of real moral considerations in the recognition of the failing inherent in the enterprise. james mcclellan focuses on the inconsistencies in the stories jurisprudence. he gets very hung up and wonders whether the approach owes more to burke or adams whether it is more indebted to the classical christian tradition. finding a correlation is beside the point. he was a child of the american revolution and the ideas of liberty and the duty and honor were part of the air he breathed. he had a deep understanding of the way that the first principles of the reasoning were in trickle to that which defined the american constitutionalism.

they assumed any good regime us to respect the nature to be governed it was created by the god of the logos in every heart. the force of the law of nature is the right from its coincidence with the will of the creator yet he begins by observing that the law of nature is a system of principles human reason has discovered. these reflections illustrate a fundamental distinction between division of the the mall and graced by the founders and revered by american conservatives and the progressive idea of inevitable transformative progress. the progressive idea highlights the difference between progress and science and technology that can be cumulative and progress on the morals and politics that must start again with every

generation. there's a deep paradox in the progressive insistence that the nature of history is settled and then open to any definition that captures the imagination of the moment. ..

there is beauty in the composition of the world's history arising from the antithesis of contrary, the a kind of eloquent event instead of words. let me conclude the devil often tries with great success to convert good into evil but battle is never ceded to him. the god he says, may reforge evil and havoc and destruction into instruments of his own design of the point of his essay the reformation which was intended to purify christianity morphed into the enlightment seeking free politics from fetters of religion and matured by insisting the progress of

humanity consisted in forgetting religious tradition all together. and this law, this twisting of light into darkness had the potential to turn come picks into a -- politics into a sheer struggle for power. stanley rosen says the enlightenment led to repudiation of reason. refutings not objectively verifiable rationalism reduces truth to matter of perspective and making all perspective equal. since our choices can only be justified rhetorically that is by reference to compassion or philanthropy or utility even equality 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 rationalists branch enlightenment provided impetus

for the french revolution. john adams contrasted what the french called reason, with reason rightly understood. the american revolution rejected the idea of reason that made war on human nature. the mistake of the french revolutionaries in adam's view was not contempt for tradition, it was contempt for man. natural rights rightly understood was a framework for governance that respected man's immutable nature. in the word words of poet, two roads diverged and we took the one less traveled by. 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. 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 governor god by recognized -- governorred imperative of martial law. requires self-control, self-restraint. people capable of understanding in acton's words, freedom is not power doing what we like, but the right of being able to do what we ought. natural law can not always produce easy answers and sometimes it can not produce any. it is a response to a hard question. in the words of the palmist, 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 bods. before -- gods. before architects had structural steel and rebar to allow buildings upward, early builders invent ad partial solution, flying buttresses. this innovation made the soaring

"gothika" three drails possible. buildings stood and based reached heaven ward not despite tensions of opposing forces but because of them. human beings are similarly designed. so the longings of our heart and destiny of our souls are forever straining against each other. when less and, what left and see as devastating, i can never say that of modern human thought, those basic positions about reality that are simultaneously necessary and contradictory, the framers would easily have recognized. did not st. paul voice the same antimony in romans 7. i have the desire to do what is good but i can not carry it out. 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, stories favorite among the ancient writers, too law is reason and right and it is immutable and internal. calvin coolidge approved similar sentiments in a wonderful speech given in 1926 to celebrate the 150th anniversary of the declaration of independence. he lamented that most of those who clamor for reform are sincere but ill-informed. were they more knowledgeable he would believe that america's foundation was spiritual and not material. founders were people influenced by great spiritual development who acquired a great moral power. to coolidge only 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're endowed with inalienable rights that is

final. if governments derive 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 to deny their truth and soundness the only direction which he can proceed historically is not forward but backward toward the time when there was not equality, not rights of the individuals, no rule of the people. those who wish to proceed in that direction can not lay claim to progress. they are reactionary. coolidge is a exactly right but now his insight seems counter intuitive. but even after the great depression the spell had not been entirely broken. speaking at conference of ninth circuit judges i was really surprised these were ninth circuit judges but it was in 1946. [laughter]. harold mckin none anticipated arthur left by three decades, warning essentially anti-democratic total ran

political philosophies graining ground in american universities. such teaches he believed denies essential elements much regime devoted preservation of natural rights. denying exist steps of moral law inherent in human nature which limits government coercion would be but a prelude to tyranny. if there is no higher law, there are no natural rights. if there are no natural rights the bill of rights is delusion and everything which man possesses, his life, his liberty and his property, are held by sufficient france of government, if there are no external truths if everything changes, everything, then we may not complain when the standard of citizenship changes from freedom to civility. 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 con schick shun there is such a thing as -- conviction as have there is such a thing as human nature, it is fixed and can not change and this nature provides standard which to judge political institutions that unites 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 reappointing the copstution is a useful analog as it suggestions not only repairing and repenting and reor river ending. in the early days of the republic patriots hoped perpetuity of the constitution. they are exquisitely sensitive to the fragility of free institutions. story expressed his well-founded fears in a powerful metaphor. in our government he said the centrifugal force is far greater

than the centripetal. thus the danger we would not fall into the sun but that we would fly off in eccentric orbits and never return to our pa-rahelion what he feared came to pass. the nation's faustian bargain cod not be sustained. civil war and civil war amendment shifted balance from the states to the federal government. america was granted what lincoln called a new birth of freedom. declaration became explicit part of the constitution. 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 gravitational pull so strong it can bend light and hold time hostage. our peril is not that we will fly too far from the sun, rather it is that we are already too close. so close, that liberty may be entirely extinguished by the

send prime minister pit tall force that overwhelms eye of limits. perhaps in liberal democracy, government can not be limited. constitutional republic is bound only by a law of laws, being monopolist on all law enforcement can always untie itself. instead, in contrary 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 borrowed out embracing distinction by john rawls political liberalism and comprehensive liberalism. a political conception of justice applies to the framework of basic institutions whereas a comprehensive doctrine is one that addresses 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 could conduct the 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 heterogeneous people. contrast that thought with today's new vision. the state should force citizens to be neutral, tolerant, egalitarian and open-minded and by the way i have to pause here to say, some wisdom i learned at my grandmother's knee. one was, it is a fine 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 even 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 a sterile, secular, uniformly dull and felt tureless vision of the future but we're democrats but democrats who like any sort of faith worth fighting for. while earlier natural rights position filled gaps in the strengthened the charter of freedom, newer understanding constrains, constricts and reduces. this new mortar 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 values. western civilization's great achievement has been to discover and synthesize a network of principles that jointly under gird individual liberty. that achievement owes to both rationality and said creditness both athens and jerusalem. somehow those two sources of value jointly should and must enforce the act of judging. the solutions offered by holmes and rawls and theorists like unger and left, and either in might, making right or in 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 that to suggest an exhaustive answer to how to define ultimate values

that confirm responsible judging and constitutional democracy there is some usefulness to say no to obvious errors. perceived opinion among a certain social group and mistaking it for democratic consensus. 9 error of any construction of the constitution that authorizes unlimited government, positive rights, when the clear import of the constitution is, its text, context and history is the creation of a government of limited powers aimed at protecting negative rights. era of indifference to the writtenness of the constitution. witness has two sides. conservative judges vigorously extra textual ideas. they are much less adept effectuating limit notice 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 cons disusing 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 farber is right, that brilliance defined as new ideas that turn conventional thinking on its head should count heavily against any legal theory. neither the reason that has destroyed defined authority or the untrammelled will that destroyed self-government can be endured. we must live with our tensions for the 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 man,

governorgoverned by the grand says who, 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 can not have it both ways. for the promise of the permissive cornucopia offered by unlimited state we give up freedom. earlier i acknowledged that if the state is limitless, maybe judges must be too but that's second best. the unlimited state is never a mere instrumentality. it can not remain neutral to the good. the question is not whether we will change with the times, we will. the question is whether we can repoint our constitution so that we may preserve the fortress stones, renewing the legal, political and constitutional principles that made us an exceptional nation. i wonder in the world the land of the free, it turns out, that if we would be free, the

unjudged judge is a logical necessity. some widespread consensus must exist, even hayak concedes preservation of constitutional liberty requires commitment to a narrative privileging ordered liberty otherwise liberty loses to expediency every time. the grand says who, is not enough. if you want liberty, something more awesome, powerful, glorious, worthy of reference and unquestioning obedience is required. something like the spirit that moved on the deep and spoke the world into being. the one who lit the sun and laid earth's cornerstone when the "morningstars" sang together. the god of the logos, the great, i am. [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 clay, center for equal opportunity. let me ask you this. would an atheist judge bo about deciding the meaning of the constitution differently from a christian judge? and why or why not? >> wow.

i thought these were going to be easy questions. hmmm. that is really interesting. you know, i don't know because some of my best friend are libertarians. and 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, in fact urugay theist or christian, it

wouldn't make any difference as long as you're committed to the limited nature of the regime. okay? >> okay. the next question. yes? >> i'm with the institute for justice. you've talk ad lot about the declaration of independence this evening. and its role setting forth fixed truths about human nature and about the role of government that are true everywhere and always. 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 scalia said the declaration of independence is not part of our law. >> i know. >> justice kagan in her nomination hearing was actually,

her confirmation hearing was asked a question about the declaration of independence and she said basically to the extent 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 and this reference in the constitution? >> well you know, it is clear that the declaration was not part of the original constitution. there is a kind of interesting debate about that. one of the things that mcclellan says is that, well, you know, they didn't put that in the constitution because by the time they got around to drafting the constitution, they were so over all that natural rights stuff, right? i mean, that was done, that was you know that was kind of exuberant thing that they did. but when they got around to the constitution they were very sober and did not bring that up again. my own feeling is that the

reason that 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 make this working. and they were very circumspect in all of their language about slavery. they didn't say anything that would immediately precipitate that. i still think that was a background consideration 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's what they were doing. they said so. i don't know. i can't answer your question about how other judges look at this. that this is not there and we should not have any concern about it. we have a court that has just refused to acknowledge that privileges and immunities is in the constitution. so we have, you know, clearly there are currents in the jurisprudence of the supreme court that i can not explain and we'll try to. -- won't try to.

>> thank you,. manny from the reason foundation, individual rights foundation. this is great moment for heritage foundation and a great moment for the audience and 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 preserving the bricks of the constitution a little bit of laughtnerism in that mortar? >> he keeps tell me i have to speak into the mic because, i forget, i am a pacer. boy, well, i'm going to, i'm going to take the coward's way out here. ii am a sitting judge. so -- [laughter] i'm going to decide that discretion is the better part of valor and i am not going to say

anything more about that. >> john? >> so i want to pose a question. did the declaration come in only via the 14th amendment, privileged immunities or was it in the main document itself? there is also privileged immunity. there is guaranty republican form of government. there are some principles there that seem to follow the declaration. >> yes. >> we granted half compromises with these prince pills and have to live side by side but isn't the root there first and if it is how should a judge go about giving voice to those original claims? >> you know i think that, you mike a good point. and i, 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, they had, this was the new thing. i think 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 they were very careful. i would say, you know, even the preamble has a little flavor of that but i think they were very careful not to say that out loud. >> clark? >> try to get in easy question. >> thank you. i've been waiting for the easy questions. by the way, heritage promised me

only softball questions. [laughing] i think, i need to have a little truth in advertising discussion with them. >> i don't know if it's a softball question but i think you will get a base hit at least. you serve a lot of different judges in your career and i'm curious, can you identify one or two qualities that are the qualities you think, you find most admirable and judges from both sides of the aisle? what are those one or two qualities you think are the hallmarks after good judge and kind of judge we should want on our courts? >> wow. you know, it is funny, i have been on a lot of courts and all i 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 like when i am, have a colleague whoing really, is engaged, really wants to dig into it, who

is 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, 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 get whatever you say, you are like yul brynner as ramses ii in the 10 commandments. you say, so let it be written, so let it be done, it over. when you're on a appellate court. it is a symphony. it is con share toe. it is never a solo. you have always have to have the ability to work with other judges. one of the things that to