optimism and certitude of the founders ia world of big government and judge nays writes none of them could have imagined. or, was a republic, peopled by free men, a naive and childish dream to which we widser, more sophisticated grown ups should bid good ridance? though america seems a miracle was it only a product of its time destined to fail as the sensibilities failed 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 normtive reasoning may bring the issues into clearer focus. one time the judges wrote 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 1708 which in language strongly reminiscent of the declaration confirmed that all men are free and equal. the high court of massachusetts held those words were incompatible with slavery. chief justice curebbing admitted slavery had been an accepted useage but he concluded whatever formally prevailed a different idea had taken place with the people of america. i love this part. without regard to color com plecks or shape of nose's features has inspired all the human race. as a man story consistently

condemned slavery under any shape as utterly repugnant to the natural rights of man yet this republican who professed he always had been a devoted lover of the constitution of the united states and a friend of the unions, wrote an opinion declaring a pennsylvania statute making it substantially more difficult for slave catchers to recover fugitives unconstitutional. prig placed the supreme court in the midst of an intention conflict and the court heard arguments reviling the constitution as a dam nabble pro slavery concomb pact. but while story recognized that 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 prig is a triumph of freedom, he follows

lincoln who would ca joel the civil war congress being they might nobodyly save or meanly lose the last best hope of earth. mental meant to preserve the union. 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 other dees spared of the republic, and would have allowed it to suck couple 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 of the early period distinguished between the frame of government and personal as we would say natural and inalianable right which is are not the same as the abstract rights of man recognize 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 purporteded 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 issue with story's assessment and are sharply critical of prig. assumed that he rejected natural law entirle. other wise says dorken it presupposed a conception of individual freedom antag nastic to slavery a conception that should have informed story's interpretation of the positive law. similarly he said story misunderstood the way in which moral choices and political interests necessarily informed legal doctrine. t what dorken and new mire

identified as moral reasoning has quite a different route. for dorken judicial reasoning and hard cases requires judges toll have abstract of justice. he said had story not accepted certainly intellectual and historical premises he would not have settled for the easy answer. both would probably deny that there is any source of normtive authority independent of man. in contrast the story's close attention many modern judges see themselves as translate rgs f the lost generalities of the evolving constitution. consider justice brener's position on the death penalty. he described the constitution as a public text and a sublime oration on the dignity of man whose inherent amzpwutes judges muss must resolve. thus in the process of

translating the generalities, he concluded capital punishment is cruel and unusual punishment prohibited by the eighth and 14th amendment. he acknowledged that his interpretation is one which neither the majority subscribe. he ignores the fact that the text of the constitution does not forbid capital punishment. instead, he 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 the force a community into believing even though it contradicts the text of the constitution. in brennan's view the judicial task snot the patient, pains taking work of repointing, it is whole sale renovation much

in the spirit of the persistance that the broad 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 see ingreed ynlts on which he relied. respect for the positive law, prudence, patient and precise application, unshakeable 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 intutes from the normtive ethose of the constitution a concern about human dignity, a phrase whosemp and particularly circumstances is highly undefined. he then reports to give meaning to those abstract values. surprisingly they are both identified as natural law

jurists but it makes little sense to put judges like story and marshall in the same camp with judges like brennan for the latter would dismiss the principles to which those early judges were devoted as quaint rell licks of a buy gone age. it is easy to trace the trajectory that has landed modern juris prudence but difficult to phantom why we act as if the traps formation was seamless. n 19 77 yale's author left reviewed the book knowledge and politics. his 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, the difference between right and wrong? why, one a person or society,, do any particular thing rather than any other? how can one ground any statement into form it is right to do x and anything firmer

than the quick sapped of bare reiterated assertion? less is admirably candid not only about the near term implications but also about the reason for rejecting the obvious solution if there is no external source on which to ground normtive 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 juris prudence. the enlightnd opinion of those people who went to school in the same zip code as you did. or, because p equals everyone, where p represents the general will. here, finally, he explains the real stakes. if he tells you thinker hugen nature is defined as the good there can be no room for change. then, rightly appalled at the world, would have no role at

all to escape that dreadful possibility 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 rearg the echo of lincoln's warnings that men f ambition, who thirst and burn for distinction will have it. whether at the expense of emancipating slaves or in enslaving free men. his book contains this passage. he says moral discourse always presupposes the acceptance of humanity and the authority of the striving to be and to become ever more human. he goes on. the first assumption is that there is a unitary human nature the one that changes and develops in history. the second premise is this human nature constitutes the final basis of moral judgment in the absence of values and

silence of revelation. in 1979 he gave us the short and spritely academic tour deforce on the absence of objective values. he said, if we cannot believe in a complete set of propositions about right and wrong, findable rules that are authoritatively and unambiguously to live righteously then all systems flouppeder on the problem of the grand feds who -- right. in other words, in order for any normtive evaluation to be binding and unquestionable, the evaluator must be beyond question, the unjudged judge, the unruled legislator, the premise maker who rests on no premise. the uncreated creator of values. in short, the great i am. god. and he candidly admits that if god is rejected the result is

the total elimination or any coherent or momentarily convincing ethical or legal system dependent upon finely 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 the succinct rejoineder to to an earier. an objective value is necessary to the very idea of a rule that is not tyranny or an oh bead yens 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 believe the statement adapted by thomas jefferson from the virginia declaration of rights editted

and endorsed by those who founded this republic, 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 pursulet of happiness. proclaiming jefferson's statement the most famous single sentence ever written in the western hemisphere. he says, perhaps, the second most famous, right after coke is it. for those of you under 30, a more recognizeable choice might be just do it. or for the 40-somethings, may the force be with you. you get the idea. and yet as he acknowledges, what seemed self-evident to mr. jefferson would appear either patently false or meaningless

and superstishes to the great men who shape our political examination. aristotle, hobbs, nicheie. of course we need not go back to find discouragement. 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 erie antip ni. thus, the modern idea of negative rights and economic freedom grew up side by side with the rationalist refusal to accept any dog matic belief. this is a big problem. these self-evident truths represent the theatrical proposition on which this nation was founded and though these principles must be cons continually reinterpretd to apply to changing

circumstances, what future exists for a regime founded on the lex eterna sf no one quite believes in it any more? this is where the life of a conservative judge who favors limited government becomes difficult. a legal philosophy that does not recognize absolute no norms. indeed, it is not clear that a legal philosophy that does recognize absolute moral norms can limit it. but the law is routed in a series of objective judgments about morality or justice or it is about nothing. to divorce the government's monopoly of force from conceptions of what is right or 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 ds intuition and anxious to preserve a constitutionalism that can effect yi68 limit government

have 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 i will liberal or both. less candor is useful in understanding this seemingly per verse result. the concept of everyone going into business for themselves, it is the privileging of unnatural law. nce his skepticism, moral knee liz mbsms pervasive, the theorist or judge has any place to stand. the idea of any reality beyond convention is inculpable and incoherent. 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 noo list admitting nature has no moral consent fill the void with surgats of their own design. these reconstructions are admittedly void of any authority and range from generally accepted standards, the zip code theory, and idea sin craltic conceptions of democracy to radically personal convictions. it is worth considering where these theories translated in the styles of constitutional interpretation lead. the best example that i can give you is aroneba rack the former chief justice of the israeli supreme court.

it is safe to talk about him. he is very candid about what he believes and how he does this. he also doesn't have a constitution. so it's kind of a little bit better. anyway, he argues that judges must defend democracy by defining ultimate values. he suggests, a process of common conviction must take place among enlightnd members of society according the norms and stards before we can say a general will has been reached and that these should become binding. presumably when the elites con sense these changes so does the law. coupled with abstract generality staced on a word like dignity, this allows supposed predispositions under the guise of objective standard, a similar defense can be found in justice breyer's

book. areas s to me judicial are both problematic. 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 jurgebork called the morality of the jurist, which rireds judges to abstain from giving their own desires free play. self-restraint is part of judicial prudence but the founders clearly believed human nature required a standard which to judge institutions. the ratification marshalled in the federalist papers were framed in terms of real conversations and failings

inherent in human enterprise. james mcclellan focuses on the perceived inconsistencies in the juris prudence. he gets very hung up on that. he wonders whether his approach owes more to burke or adams, whether it is hobsion or lackion or to the christian tradition. i think finding some precise core lation is besiped the point. story was a child of the american revolution. ideas were part of the air he breathed. he had in the common with the founding generation a deep understanding of the way the axe ym and first principles were integral to the those that defined american constitutionalism. he like the drafters of our documents assumed that any good regime must respect the nature of the creature to be governed. whose rational nature crated by the god of the logeos was guided by the law engraved in

every heart. derived from its presumed coincidence with the will of the creator. yet he begins 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 reviewed by american conservatives and the progressive idea of inevitable transformative progress. the progressive idea highlights the difference between science and technology which can be humelative and progress in more or less and politics which must start again with every generation. there is a deep pradosm in the progressive insistence that the 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 reference and wonder as the opening of a grand scene and design in providence for the illumination of the ignorant and emancipation of enslavement all over the earth. he was not alone in this view. those who pledged their lives repeatedly gave credit to a providence to divine intervention to being in the hands of a good providence. in fact 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 a frigs of awareness that something extraordinary was afoot. phyllis tickle hype thezz sises that it shifts every 12500 years takes -- 500 years. the long view of history echos

in a shorter time frame some of the same elements of mythic struggle. he invokes st. augustine's recalling how god enriches istory by the same kind of antithesis. there is beauty in the world's history from the antithesis. the kind of eloquence and events instead of words. thus he concludes the devil tries to convert into good into evil but the battle is never conceded to him. may reforge evil havoc and destruction and to instruments of his own design. the point of the essay is that the ref mation which was intended to reform christianity, which began and matured by insisting the progress of humanity consisted in forgetting religious tradition altogether.

and this law, this twisting of light into darkness has the potential to turn politics into a sheer struggle for power. stanley rosen says the enlightment led to the repudiation of reason. by reducing all that is not objectively verifiable, rationalism reduces truth to a matter of perspective and makes all perspective equal. since our choice ks only be justified retorically that is by rinches to compassion or philanthropy 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 rationness branch of the enlightment provide it had impetus for the french ref lution. john adams said with reason

rightly understood. the american revolution rejected the idea of reason that made war on human nature. the mistake of the french revolutionies was not contempt for tradition. it was contemmed temperature for man. natural rights, rightly understood, was a framework for governance that respected man's immuteable nature. two words of the poe t, roads diveerblingd edged and we took the one less traveled by and now we know ages and ages hints 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 polety is generally governed by the recognized imperatives of the universal moral law. it requires self-control and

self-restraint. people capable of understanding that in his words 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 worst of the saddammist, what is man that you made him a little lower than if angels? this is bothgoery and curse in trying to design a government of the people for the people and by the people, we must relish the intention that is a vital part of humanity. we are not brutes, we are not gods. before architects had structural steel and rebar to allow buildings to extend easily upwards early builders invented a partial sub. made gothic cathedrals possible thezz the buildings stood and

not in 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 left -- what left as the devastating ant nomies -- 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 ant emni in romans 7? i have the desire to do what is good butically not carry it out. and so i find this law 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. cisero, jussty stories favorite

among the ancient writers, say its validity is the unevirsle, it is immuteable and internal. calvin cool lidge approved similar sentiments in a wonderful speech to celebrate the 150th anniversary of the declaration of independence. he lamented that most who clamor for reform are sincere but ill informed. were they more knowledgeable they would realize that it was spiritual not material and the founders influenced by a great spiritual development who required a great moral power. only the exercise of god's providence seemed adequate to explain the declaration 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 unaleageable rights that's final. no advance no progress can be

made beyond these propositions. if anyone wishes to deny their truth and their soundness the only 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. he is exactly right but seems counter intuitive. but even after the great depression the spell had not been entirely broken. speaking at a conference i was really surprised that these were ninth circuit judges but t was in 1946. anticipated by three decades warning of the essentially anti-democratic and totalitarian and legal philosophies gaining ground in american universities. such teachings he believed are

not the essential elements of a regime veedote. the existence of a moral law inherent in the humern nature which limits government coercion would be but a pray lewd to tyranny. if there are no higher law there are no natural rights and then the bill of rights is a delusion and everything which man possesses, his life, liberty, and property are held by suffer rans of government. and if there are no external truths if everything changes then we pli not complain on the standard of 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 institutions that unites john adams, joseph story and calvin coolidge. to turn away from the principles of 1776 and 17178 is to turn back from arbitrary government. that is why the idea of repointing the constitution is a useful analog as it suggests not only repairing but repenaltying and reorienting. patriots hoped for the perptute of the constitution. they were sensitive to the fra jilt of free institutions. story expressed his twel-founded fears in a powerful metaphor. in our government the sent cal force is far greater than the sen trip tall. thuzz the danger was not that we would fall into the sun but

that we would fly off in exsent trick orbit and never return to our paraheelion. what he feared came to pass. the nation's bargain could not be sustained. the civil war and the civil war amendment 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 gravetational pull so strong it can bnd 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 force that overwhelms even the idea of limits. perhaps in a liberal democracy

government cannot be limited. the constitutional republic is bound only by a law of laws and being a mon op list on all law enforcement can always untie itself. instead, in contemporary parlance liberalism no longer has anything to do with limited government. regulatory state has expanded its reach to consider social welfare and transition of culture. the legal scholar embrations a distinction between political liberalism and comprehensive liberalism. a political conception of justice applies to the framework of basic institutions where the comp hepsive doctrine is one that addresses all aspects of life including conceptions of what is of value. the constitutional principles of early american history limited the way government

could conduct the public business but did not purport to tell citizens how to run their lives. the first amendment followed this approach. the american constitution 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 hetro genius people. contrast that thought with today ds new vision that the state should force citizens to be neutral, tolerance, 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 fine thing to have an open mind but your mind should not be so open that verything in it falls out. or, as lewis says much more succinctly. if your mind is open on these ultimate questions, please let our mouth be shut.

or consider teevepb 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 enlightnd elite will take us to a sterile secular dull and futureless vision of the future where we will all be democrat bus democrats who like any sort of faith worth fighting for. while the earlier natural rights tradition fill gaps in a way that strengthen the charter of freedom the newer understanding constrains constricts and reduces. this does not strengthen it shadows the whole edfass. limited government should mean limited judges, too. but so long as we have unlimited grovet we may need a less limited view of the legitimate role of judges. judges may need to intervene for the sake of 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 undergird individual liberty. that owes fieldty to both ration nalt and sacredness. somehow those two sources of value should and must inform. the solutions offered by homes and theorists end either in might making right or in a coerced virtue based oban unnatural law that seems contrary to athens and jerusalem both. to the entire network of principles undergirding individual liberty. while it would take more huts an han i possess to produce ultimate answer, there is some usefulness in saying no to obvious errors, of taking a

certain opinion and mistaking it for democratic consensus. the error of any construction of the constitution that limits government and positive rights when the clear import is the creation of a government of limited powers and protecting negative rights. the era of indifference to the writtenness of the constitution. witness has two sides. conservative judges have vigorously resisted the importtation of extra textual ideas. they have been much less adapt at effect wutting pliments on the text. this is the point of recent books challenging judicial abdication and their criticism of 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 barbara is right that brilliance defined as new ideas that turn conventional thinking on its head should count heavily gainst any legal theory. neither the reason that has destroyed defined authority or the untrembled will that destroyed self-government can be endured. we must live with our tension force 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 created a space in which to encounter god. and the city of man goinched the grand says who the world is filled with law.

in other words, the source of our differences may well be religious for a perp's or nation's relationship to liberty is a spirit tl matter. coolidge is the right about that. still we cannot have it both ways for the promise of the corn popia aumped by the limited 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 a mere instrumenttality. it cannot remain neutral to the good. question is not whether we will change with the time. we. 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. a 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 consense suss

must exist. even highality concedes the preservation of a constitution of liberty requires commitment to a meta narrative privileging liberty. otherwise liberty loses to expediencey every time. the grand says who is not enough. if you want liberty something more awesome, powerful, glorious, worthy of reverence and unquestioning oh beadions 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 eshtsdz's corner stone when the morning stars sang together. the god of the logo, the great i am. [applause]

>> i 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. >> thank you very much, judge. i really enjoyed that. i'm roger with the center for equality opportunity. let me ask you this. would an athiest judge go 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. hmm.

that is really interesting. you know, i don't know. because some of my best friends are libertarians. and they are mostly people who do not believe in a super natural being. but nevertheless, i think they would recognize that if you are going to have limited government, something must be the source of authority. he problem with this lack of normentive foundation is all you get is whatever anybody wants to do. o i would hope that if in fact you're athiest or christian it wouldn't really make any difference as long as you are

committed to the limited nay if you are of the regime. >> ok. the next question. > you talked a lot about the declaration of independence this even and its roll in setting forth human nature and the role of government that are true everywhere and 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 sclayia has said the declaration of independence is not part of our law. and justice kagen at her confirmation hearing was asked a question about the declaration 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, it's clear that the eclaration was not part of the original constitution. there's a kind of interesting debate about that. one of the thing that is 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 the kind of exube rat thing that they did. but -- exube rant thing that they did. but when they got to the constitution they were very sober and did not bring it up again. my own feeling is the reason they did not say anything when they draft it had 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. 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 to keep this compromise working. and so they were very circumstance spect in all of their language about slavery and they didn't say anything that would immediately precipitate that but i do think that was a background conversation to what they were doing. i don't think it was just 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. they said so. so i don't know. i mean, i can't answer your question about how other judges look at this and decide that this is not fair and we should not have any concern about it. i mean, we have a court that as just refused to acknowledge that privilege is an immunity that's in the constitution. o we have -- clearly there are currents in the juris prudence of the supreme court that i cannot explain. thank you.

it's a great moment for heritage foundation and a great moment for toddions 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 preserving the bricks of the constitution a little bit of lautnerism in that mortar? >> whoa. he keeps telling me i have to speak into the mic because -- i forget. i'm a pacer. boy. well, i'm going to take the cowards' way out here. -- a sitting judge so [applause] i'm going to decide that discretion is 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 via only the 14th amendment privileged immunity or was it in the main document itself? because there's privileged immunity, there's form of government. there are forms of principles that follow the declaration. we have to live side by side but isn't the root there first? and if it is, how how old should a judge go about giving foist 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 to they saw as necessary 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 twha government could do to coerce a certain kind of creature. right? so 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 even the preamible has a little flavor of that. but i think they were very careful not to say that out loud. i'll try to give you an easy question. >> thank you. by the way, heritage promised me only softball questions. 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'll get a base hit. you've served a lot of judges in your career. can you identify one or two qualities if a are the qualities you find most admirable and desireable in judges from both sides of the aisle but what are those one or two qualities that you think are the hall marnings of a good judge? >> wow. well, you know, it's funny, i have been on a lot of courts and all -- i've served with a lot of different judges. and all of them are quite different. but i think for me what -- the thing that i like when i am -- ve a colleague who really is engaged, that 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 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. trial judge you are the king. your word is law. whatever you say you are like you'll brener as ramses 2 in the ten demandments. you work around and say so let it be written, so let it be done. it's over. but when you are on an appellate court it's a symphony. it's a concerto. it's never a solo. so you've always got to have the ability to work with the other judges. and so one of the thing that is me 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 grudgingly put in a couple of words and say ok i've addressed your concern, but goes back and actually says how does that idea change the way i as approaching this opinion? >> i think we're done. i hope so. [applause] >> judge, one of the thing that is we present in recognition to both of your distinguished career as judge and in the other jobs that you've done, but also of your talk this evening and your excellent thoughts and ideas and the thinking and research that went into your fine work for tonight's talk, this is our

statue of liberty defender of liberty award. and we're happy to present this to you. >> this is gorgeous. thank you so much. >> and with it we have a -- >> whoa! >> we have the >> he's going to add my to my library. >> comment rizz of the united states in two volumes by joseph story. >> this is gorgeous. beautiful. >> and what we call the familiar exposition of the constitution of the united states by joseph story. and with all modesty i must say it has a forward by me. [applause] > thank you very much. >> so now if you'll join us all. we have in the foiror 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 us for all you have done for the law and particularly for being with us tonight.

thank you so much. >> thank you. >> hear a few of the comments we've received on our 2014 campaign debate coverage. >> i listened to the debate campaign 2014. it was between carl demayo and

representative scot peters. and it's just politics as usual. what we really need is for the politicians to quit making decisions based on power, money, and votes and to start working together at a higher level, seeking the best decisions for the american people. i'm to the point that when there's any type of political event both republicans and democrats and any other party that wants to get involved should organize it, should start from the get-go learning to work together and at this event show their constituents and the american people that they can literally work together, reason together at a higher level, and on all the

issues that americans are concerned about. and get the best decisions by reasoning together instead of it being based on power, money, and votes. we win and you lose. >> i'm calling to say thank you for airing the debates. i just watched the vermont governors debate and i'm embarrassed to admit that when i first saw there were seven candidates on the stage i thought it was going to be a circus but i'm glad i got over that and i watched. i was really impressed with some of the ideas that some of the candidates -- the suggestions that they made, particularly the gentleman who said that an educated workforce is to the ben at this time of our country. so we -- benefit of our country. so we should be paying students for going to school. i really like the woman canned ted who reminded us that

jevereds, senator jevereds refused to attend any debate that didn't include everybody who was on the ballot. it's time the americans realized that we don't have to choose between a demo can and a republic crat. there's more than 100 political parties in the country and it's time to start looking at some of the others. thank you, again, c-span for airing the debate. >> continue to let us know what you think about the programs you're watching. >> congressman henry waxman is retiring at the end of his current term after serving 40 years in congress. he is currently the ranking democrat on the house energy and commerce can he.

congressman waxman spoke yesterday about health care and some of the landmark bills he sponsedrd involving tobacco and prescription drugs. this is an hour. >> good afternoon. i want to welcome you all and just to say how deeply privileged we are at the institute and at georgetown law to have one of the great living americans with us, congressman henry waxman. one thinks about the modern history of health and health law as i have all of my career,

the congressman has been a leading force to really shape that law in the united states in so many different areas from clean water to tobacco to the affordable care act. nd he is a legend to us in the field. so thank you so much. we owe much to our relationship with the congressman to our wonderful faculty colleague tim thy west morlede. tim is a professor here at the law center. his teaching in these classes are legendary. he actually can explain to students what a budget looks ike and what goes into it. and he has also been a very

effective loyal staff person for congressman waxman over the years and has just been a great leader to all of us here at the law center in problems of health, budget and congress per se. so thank you both for joining us. it's just a great honor. by tradition what we will do is tim will be asking the congressman a number of questions. they will have a conversation. once that is over i will probably ask the first one or two questions and i will go to the audience allowing students to speak first and then the general audience. so thank you all. you're in for a treat. , you have been

doing health law since before there was a field of health law, when people thought the only thing there was was medical malpractice litigation. how did you know it would be the field it is? been a congressman for years and this is my last -- and this is my last year in congress but before that, i was also in the state legislature for. six when i got elected to the state legislature, i made a decision that i wanted to specialize in a particular policy so i could make the maximum difference in that policy. i thought about the different areas at the state legislative level.

medicare was already in effect when i first got elected, medicaid was fairly new and we were going through a lot of growing pains in california with the medicaid program. health care was where i wanted to focus my attention. when i came to congress, i wanted to get on the committee that had the most jurisdiction over health policy. that turned out to be the energy and commerce committee. this was 1975 in the middle of the energy crisis and everybody wanted to go on the committee because of energy that i went on because of the health policy. on that committee, health policy or not just medicare medicaid but environmental issues that affected health. what are the issues i got involved and was the clean air act.

>> you describe this as being a constituent issue for medicare and elderly constituents, but you have also spent a whole lot of your time working on behalf of low-income people, poor people, who probably really are not a big constituency, certainly not now that you represent beverly hills. [laughter] but you spend a lot of your time and trouble with medicaid expansion and child health insurance, trying to get poor pregnant women health care. how did you decide that you needed to work on poverty issues? especially if you start of thinking about it as a constituent issue? >> i have a without that the -- i have always felt that government can and must make a real difference in peoples lives. and one of the areas where government can play an essential role is to provide a fair and equal opportunity for every child to succeed to the fullest extent possible. and if we believe in equal

opportunity to advance as far as people can go, we have to recognize that there are some people, because of disabilities or other factors in their life, they do not have that chance it we have to provide a strong safety net. and government alone has to be there to provide that safety net. because we do not want people to sink to the lowest possible -- we want to respect their dignity as human beings. so we need a safety net for the disabled, the elderly, for the poor, for those who have nowhere else to turn. i have always felt a special obligation, because in washington and in sacramento, there are always lobbyists that protect special economic interests, but i felt it was important to play a role for those who did not have anybody else representing them, the people who really needed government the most. i looked at that seriously over

the years i have been in public office. >> i assume you know, but to make sure you do and i'm not sure people here do, that sometimes changes had to be very small and very incremental, and you worked -- i mean, one person once said that henry waxman is not a rock, he is a river and keeps going through until he wears you down. [laughter] but it has expanded medicaid incrementally. there was a cohort of children that came in year-by-year. kids under six, then kids under seven, then kids under eight, and then kids under nine, until there was full eligibility for low-income kids. those kids are called "waxman kids" in some crowds. >> i am very proud of that. >> i was going to ask of you knew how many kids you had across the nation.

>> there is no paternity tests. [laughter] >> that you have given them support along the way. >> can you imagine in this country, the wealthiest country ever, that health care has not been available for everybody? it is available to those who can afford it, and it has been available because of medicare for seniors who were the fastest-growing demographic in poverty right into the medicare program. because people, because of a historical fact, after world war ii, they had their health care services tied to their employment. when people retired, they lost their health care benefits. but a lot of people who are very, very poor did not have health care, and we tried to help them out with the medicaid program. it we let each state decide how poor you had to be. a lot of them did not cover some

people that are genuinely poor, especially children -- a lot of them did not cover people that are genuinely poor, especially children. bit by bit in various bills, there has been implementation of a budget proposal, ways to expand health care. through medicaid, which is health care for the poor, but it not cover all children, even below the poverty line spirits we put them in so that over a period of time -- if you explain to this group about budgets, if you cannot spend more than the budget permits that you could put a little piece in, and then the next year put another little piece in so that you can build up over time what you should have done all at once in a society that has this serious obligation. finally with the affordable care act, it is going to evolve. not the end of the road, but it is a way that people cannot be discriminated against in getting health insurance because of the

existing medical conditions and because they cannot afford to pay for the premium. >> that incremental approach of doing something not all at once, i think, is something that people look at you and say he is the guy that is the river that keeps doing this. i assume you have seen the quote from a former bush official that said it was invented by henry waxman when nobody was looking to gradual incrementalism is something i think is unique to you. there was this kind of incremental year by year approach. the late senator kennedy had this approach. this is a group on health law at large. you have also been very involved with pharmaceutical law and regulation which is a huge business and a huge legal business. and you were deeply involved in the law that invented generic

drugs in the u.s. some people know, but let me make sure. it is called the hatch-waxman or on the house side, waxman-hatch, legislation to create generic drugs. and you did that with senator hatch, quite a conservative republican member of the senate, and you worked quite amicably and well, i think. how did that go at the time? and do you think legislation like hatch-waxman could be passed now, bipartisan and bicameral legislation? >> i think that if you're serious about trying to get good policy through, you have to be willing to compromise. unfortunately, there are a lot of people in congress right now who think compromise is a dirty word. some of the tea party republicans, getting them to work with democrats is like implicitly with the enemy.

that is absurd. americans, we are not enemies. i always look for compromises, look for opportunities to move the agenda forward. if it is incremental, fine. but always, always look for chances to get things done. in the area of pharmaceuticals, a law changed in 1952 that a drug to be approved, it had to be safe and effective. that was 1962. so the drug companies had to establish the safety and efficacy to do that. but there is nothing in the law that said it is not a new drug or competitive drug on the market and it will go to fda. they could go to market because they are making a copy of the same drug, but they had to go through all the tests to show

their safe and effective, even though they are following the exact formula that was on the market and already approved by the fda. so we worked out a compromise. on the one hand, we want to encourage the development of new drugs and the pharmaceutical companies were a little annoyed because they had to spend a lot more time at fda in order to show that drugs were efficacious. and they lost time to get benefits from their patents. they said, we will give you more time on your patent, patent restoration, from the time you used at fda. the when that time is up, we want a generic drug to be approved automatically, on an abbreviated new drug application. and all they had to show was it was the same drug as the original and not go through all those tests. well, i thought that was a very

good balance. and all these years later, i still think it is a good balance. because we want both to happen. investments and new breakthroughs, medicines, even investments in b2 drugs, but generic drugs make drugs affordable and the market will produce a better price. >> you and mr. hatch came to a compromise over this? >> we did. it was a hard-fought battle. we had a lot of things to work out, a lot of details. but we worked it out. i think it is important to realize -- a lot of people say what we need is a lot of legislators in the middle. i am a proud liberal democrat and he is a proud conservative republican. so we did not have to be in the middle. we both had to be willing to see how we could get something done. we could get nothing done together -- in fact, that is what congress is doing these days.

no compromises, no progress. we look for ways to bridge the differences and eventually worked out landmark legislation on that and other things. when we got the bill through, we were presented nightgowns, strange bedfellows on it. [laughter] >> i assume they were not of the same size, you and mr. hatch. >> same quality, but he had a bigger size. [laughter] >> i also know that, in another area of from a cynical legislation that you have been involved in, that there is a really good story around the creation of orphan drug legislation, to try to create incentives for big drug companies to study products that only affect a little tiny market and the market might not be big enough otherwise for them to be interested in. can you tell us the story?

>> it started because i got a constituent call. my constituent called the office and said i have a rare disease called tourette's syndrome and there's no medicine to treat it. i have a drug that helps me a bit and i had to buy it overseas. i think he bought it in canada. and when he came into the united states, it was seized from him because it had not been approved by the fda. he said, now i have got nothing. congressman, what can you do to help? that piqued our interest because he was a sufferer of a rare disease, and there are a lot of other people who were suffering from a rare disease, rare in that the patient population is so small that if a drug company develops a drug for people, even 200 people or 500 people have that disease, it is not as valuable as a drug they can sell

to a large patient population overall. so we knew there was a market failure, a disincentive for the manufacturers to work on that. so after many, many hearings, we produced a legislation called the orphan drug act. because the diseases people suffering, they felt like orphans. nobody was paying attention to them. we offered the drug act to we gave pharmaceutical companies the right incentives to work on it. in 1980, i believe there were four orphan drugs. the last figure i saw was 450. so it has been a great success. there are a lot of interesting stories about the legislation. one of our strongest supporters was an actor named jack klugman. he had a tv show called "quincy." we were worried that once we passed this bill out of the house, it might not go anywhere in the senate.

senator hatch, we did not know where he stood on it, but there were rumors he might not be for the bill. the drug committees do not like -- the drug companies did not like it even though it helped them. they were a little embarrassed they had not done as much as they should had. jack klugman had a special episode of "quincy" written about having a bill for millions of people suffering from rare diseases, demanding congress act to give them hope and it was going to be stopped in the senate. i am not sure that was the episode they showed, but they had that episode ready to go if hatch was not going to be for the legislation. the other was we just needed to get people involved for fighting for those with rare diseases. that was a strong efficacy are not only for the people suffering from the disease, but a television episode. the bill, after it passed, the

president was going to veto it. the secretary of health and human services at the time said, i like this bill and want the president to sign it but senator hatch attached a provision onto the bill which i thought made a lot of sense. he wanted it, because of his constituency, to find out the suffering of people from the atomic tests in nevada, you talk, the arizona area -- utah, and the arizona area, and they wanted people who were exposed to radiation. he wanted something done so at least we had the knowledge of that exposure and how great an impact it was paired but the office of management and budget i was looks to, oh, is this going to cost us more money once we know? and they tell the president to veto the bill. well, we had a dramatic effort on behalf of all the people with

rare diseases, taking out full-page ads, contacting president reagan. there was even somebody i called that was going to be at the special new year's eve event that president and mrs. reagan always attended in palm springs. i call this man and said i would like you to talk to president reagan when you are there at this party and tell him to sign this bill. he did sign the bill. that has been a great success and i feel a lot of pride in that. today, i spoke to the national organization of rare diseases actually, and they are thriving. there is still work to be done. there are a lot of orphan diseases that still need drugs. >> but now there is a regulatory pathway for those drugs and incentives to the manufacturers. >> there was always a regulatory pathway. the drugs had to be safe and effective. we did not lower the standards.

but drug manufacturers, we felt, should not lose any money. we gave them tax breaks and gave them a longer time of exclusivity, seven years. >> just like their patent. >> it was an extension of their patent. ironically, today, the topic is how much these drugs cost. because a lot of the manufacturers are developing pharmaceuticals for people with rare diseases and then charging incredible amounts of money. they will charge an insurance company or government pay her for that, but when people do not have insurance or somebody to buy the drugs, they will give it to them. but they are making a lot of money or what we thought were going to be losing propositions. they turned it into a big financial successful effort on their behalf. >> another chapter for another time. [laughter] i think everybody who does public health knows the picture

of you swearing in the tobacco executives to testify about whether they were manipulating the levels of nicotine or whether they think cigarettes cause cancer. that was quite a watershed hearing. but i am not sure that everybody knows the other part of the story that goes with that after that hearing took place and after the republicans took over the house so you were no longer chairman. so everybody thought your role in moving forward tobacco regulation was sort of going to have to wait for a while because you were not chairman anymore. what happened? >> i do not like the fact -- -- i don't let the fact that we are in the minority to stop us to advance what we can under the circumstances. i left the chairmanship of the health and environment subcommittee. the chairman of that subcommittee was from richmond,

virginia, a very strong advocate for phillip morris which is headquartered in richmond. when he took over, he said no more hearings on tobacco. no more investigations on tobacco. we continued our investigation. because after the hearing in 1994 with the executives when they took an oath to tell the truth and light about cigarettes -- and lied about cigarettes not being harmful and nicotine, no, no, that is not addictive. a targeting kids? of course not at after that hearing, we started getting insider information about what was really going on. >> from inside the industry? >> inside the industry. we were getting dockets, but i -- we were getting documents but i had an issue with the fact that i cannot hold a hearing about it -- >> because you are not chairman. >> i was not chairman. if i put out a document that i received confidentially, i was worried the tobacco companies would sue me. because they filed a lot of suits. they filed a lawsuit against abc

television, threatening them with hundreds of billions of dollars if they ran a story which the tobacco companies that was not true, and that was that nicotine levels were being manipulated. turned out it was true. but abc's lawyers said we cannot afford to defend this lawsuit because of big tobacco money. i did not want to get sued. i had documents, so i went to the house for after research by my staff said if you go to the house floor, you are protected under the speech and debate clause of the constitution. so i went to the house floor and read the documents personally into the record. then i knew i could not be sued because the constitution protected me in doing that. >> the confidential documents being made public. you do not have a formal role in it because you are not chairman anymore. but speech and debate protects members of congress doing their

job, so reading those documents into the record and making them public, nobody could ever sue you for it. >> that is right. >> i wish i had some role in that planning, but i just think it is an ingenious legal factor. >> of following the time when the tobacco companies -- when i was chairman of the subcommittee, filed a subpoena to ask me to turn over all the documents we had in the subcommittee records. because they said there were documents that had been stolen or misappropriated and they wanted to know whether i had those documents here they actually issued a subpoena. i went to the house counsel and said this is separation of powers. how can they have the courts tell me, a member of congress, to turn over documents, and that subpoena was crushed. they were pretty aggressive. still are. >> still are.

also moving slightly again, trying to cover a few, you spent a lot of time working on women's health issues. some of it about reproductive health. some of it about women and biomedical research files. some of it about breast and cervical cancer, those kinds of things. are there anecdotes you remember about the women's health issues that you think law students would be interested in? >> there certainly are. we found out that, even at the national institutes of health when they were doing clinical studies, they did not look for a representative sample. so in order to make a decision, they just took a sample and thought they could just use men. >> in the clinical trial? >> in the clinical trial, and then extrapolate to women. that they would behave the same

way. some of them had a theory that women might react differently in the clinical trial, so they did not want to involve women. >> you do not mean behaviorally. >> biologically. of course, that is absurd. a test on whether aspirin helps prevent heart attacks was done on men. they had to do the test all over again. because we did not know if it would apply to women. we held some hearings and so we asked why you would have a sample that is so limited. they cannot really explain it. we passed legislation saying that any clinical trial that was going to be conducted with government funds, which is at nih and universities they get money from nih, had to have a representative sample of racial, ethnic, sexual differences so that they could see and get a genuine interpretation of what is actually happening biologically. could you imagine? it is hard to think -- i have always been for women's ability

to control their reproductive lives. to me, it is a no-brainer. i have always thought if you do not like abortion, the best thing to support is planned parenthood and family planning, contraception. because the biggest reason for abortion is unwanted pregnancy. if you can avert the pregnancy, we would have less abortions. but the people who are against abortions thought, well, i do not know what they are against. if they think it is wrong to have contraceptives, they think basically the people for contraceptives are also four abortion. but it is not that therefore abortions, but they do not think the government should be making the decisions. it amazes me that we're still talking about contraceptive coverage under the affordable care act. and the u.s. supreme court would come down to the decision saying that a corporation can have a

religious point of view where they do not have to cover contraceptive services. it is clearly an important preventive service. the institute of medicine determined it to be one, therefore saying it had to be covered by the law. which was to provide clear, preventive services and then the supreme court came back with another way to look at it. i think you were with me at the time on the staff at the committee when we were trying to do legislation on having screening for breast and cervical cancer, and we cannot -- we could not get anybody from the bush-quayle administration to come in and give testimony. but mrs. quayle came in and testified -- >> the vice president's wife. >> to her credit, she said we should have screening. that was very good testimony at of course, when we asked her, what if we find this cancer and people do not have insurance -- well, that is not our problem.

but that gap was in the law for a long amount of time until we finally, on a bipartisan basis, got the republicans to say if you find that cancer through the screening program, we should provide services to otherwise, -- for those people otherwise why are they going to show up to find out whether or not they have cancer? >> it was a very interesting hearing. i remember it well. there was no formal representation from the white house, but there was a witness there who was married to the vice president who made very clear she was speaking only on her own behalf, not on behalf of the administration. it was an interesting conundrum. >> repeated again under the bush-cheney administration on gay marriage. vice president cheney was in support of gay marriage. he felt personally about the issue because of his daughter. yet, the bush administration's

official policy was to support ballot proposals around the country to make it illegal to allow same-sex couples to get married. and i think he said at the time, i am not entered of the policy -- i am not in charge of the policy of this administration. [laughter] >> so i have nothing to add to that discussion. [laughter] but perhaps to note that mrs. cheney never appeared in front of the congress on this. that made it particularly hard. i do not know if you remember or not, but on a staff basis, we had to promise the reagan administration -- i am sorry, the bush administration, over and over again that no democrat would ask a question about financial support or new legislation of mrs. quayle, the democratic members would only talk about breast and cervical cancer. and you stuck to the deal and open to the questions and talked about what a hard problem breast cancer was. and republicans had question

after question after question for mrs. quayle about why the administration do not support your legislation. it was an embarrassment, but we stuck with the deal. >> i remember that and your involvement. i want to share an anecdote about you. >> oh, dear. [laughter] >> he came to work for me when i first became chairman of the subcommittee. was this your first job? like my first job out of law school. >> he was working on public health issues. he said to me, i am worried about all these budget cuts during the reagan administration on a lot of public health efforts here at we have to be prepared for whatever may happen. so what happens? suddenly, game in were dying of -- gay men were dying of a rare form of cancer. and the centers for disease control said this is geometrically multiplying and moving very quickly, expanding very quickly.

so we held a hearing on it. we held a series of hearings. the president, president reagan, would not even mention the word aids. but his department officials understood what was going on, and they were worried about it. so tim talked to them about or talked to me, i should not present, but if we ask a representative of the administration with their view was, they would give the administration's position. but we framed it in terms of -- what is your best expertise? your best expert judgment, should we do this or that or the other? then we got the right answers, answers that affected their views that had not been approved through the bureaucracy. and the people within the health and human services were very,

very pleased that you came up with this way to get the answers to the questions that we needed. >> well, i mean, the conundrum for an administration witness, they are appearing on behalf of the administration. so if you ask them, they have to say with the administration's formal position is. if, however, you ask what their personal professional judgment is, then they are compelled to say with her best personal judgment is on this topic. so a number of higher medical researchers, public health people, they were willing to say with her best professional judgment was, even if they could speak on behalf of the administration. so i was going to ask you about aids hearings, but you started it there. you ended up chairing three dozen aids hearings along the way. and some of them were at a time

when people were -- i do not want to say frightened, i would say hysterical, as we did not know for sure how -- what aids was at first and what hiv was and then how it was spread. you chaired hearings during a time when the public was really quite frightened many times. i, myself, am having some flashbacks of those days now. and i just wanted, without suggesting in any way that the ebola virus in the u.s. is anything like what the aids epidemic is and was in the u.s., just wanted to know if you have -- you were in an oversight hearing about ebola just last week. do you have views about how the congress and the administration and the public health world are responding? >> there was a lot of strong emotions about hiv -- we did not know hiv.

we called it a spirit we held -- we called it aids and we held hearings before we even had the word aids. so it was affecting mainly game in and was a death sentence. -- mainly gay man and it was a death sentence. and if you had aids and you do not have insurance, you had no medical care. if it came out that you had aids, you lost your job and you probably lost your insurance, because insurance companies could drop you. there was no confidentiality and no real protections for people who had the disease or were fearful they might have the disease. there was no reason for them to want to be tested. it was not until later that we had some pharmaceuticals to help them. that the public had a strange reaction. sometimes it was absolute panic. there were people who were saying this disease is spread through the air. and we have got to take these people and quarantine them.

the ranking republican on the subcommittee was a congressman also in california. it was just the wrong time for him to be in congress, although i cannot imagine a good time for him to ever have been in congress. [laughter] but he took the attitude, we are all at risk in we have got to take a list of all the people who are hiv-positive, who have the potential for aids, or have aids and put them on an island some place. that is certainly not going to encourage people to come forward to be helpful. he made things so difficult, and then the public was getting very -- if you had a waiter that had aids, are you going to get aids? so there was a tremendous amount of fear. then there would be a lot of times when nobody would pay attention to it appeared i was invited to go on a sunday talk show.

we had not been invited to talk about aids for a long and amount of time. we were only hearing about work -- we were holding hearings about it but there was no questions about it. but then we heard rock hudson might have aids. so they call me and said we want you on the talkshow if it turns out rock hudson has aids. otherwise, we do not want you on it. that shows the media's coverage. i learned in the many years that we don't with aids and hiv-aids -- that we dealt with age and hiv-aids and the ryan white act, one thing i learned is if you have some the like this or ebola, follow the science. follow the science. that is true generally anytime. when you have people throwing things out like let's have a travel ban for anybody traveling to the united states from certain countries in africa -- well, that sounds theoretically good, but it becomes counterproductive.

it means that people will disguise whether they have the disease. they traveled to brussels, which is what happened with the first case of ebola. there was a map of all the different flights. but then keeping everybody out, whether they have ebola or not, so it would not make sense for the scientist or the health people to say let's screen them when they leave and screen them when they come in, rather than drive the whole thing under ground. but other ideas was to just drive everything underground to her that makes it harder for the public health people to deal with a real epidemic. so do not let ebola become politicized. >> ok, professor gaston? >> all right. thank you very much. it took me down memory lane,

with all the work you have done. you may not remember, but you were here at the founding. of the o'neill institute. so you have been a friend of ours for a long time. i want to ask two quick questions and then turn it over to the audience. the first one is to pick up on the discussion we had with ebola but to reframe it in a different way. if you think about our response to aids and now with ebola and the director of cdc coming to congress, you think about climate change or any number of other things, do you perceive in your public service that there has been an increasing distrust of government science to handle the great problems that are facing the united states and the world in terms of health and safety? is there a deficit of trust?

>> you said to questions. >> the other question was going to be on a different topic. >> ok. i think, certainly, there is a mistrust of government. some of that has been drummed into people for political reasons. >> you say health is not a democrat or republican issue. >> neither is science. science is based on evidence. you have a hypothesis, you look at the evidence to support it. it should be dispassionate and not political. but i have seen in a number of areas, the political is a nation of science. -- the new political -- the politicalization of science. i have seen it in the reproductive area where under one of those republicans they , put on the website that if a woman were to have an abortion, she is more likely to have breast cancer. there is no scientific evidence for that at all, to make that

statement. right now, republicans are denying climate change. they treat science as if it is someone's political opinion. it has no validity in and of itself. but just as valid as their view which is there is no climate g.ange happening area opinionif the scientists all agree, it is a conspiracy, not that they have looked at the evidence and they have drawn conclusions from that evidence. i am troubled by the superficial way that has been treated. it is not new, but more and more by people who want to deny science, ignore it, and then treat things as their ideology. >> if we want to advance public health we do need to rely on , science.

one last question and then i will turn it over. perhaps the signature achievement on health was the affordable care act. that was a landmark, a and you are a giant with that. you wanted to bring the supreme court case on the question of contraception coverage. i would be interested to see if there are solutions to that. it seems to me the biggest challenge for the affordable care act now is the medicaid expansion. you have been a champion of medicaid all of your life. when governors do not expand medicaid, is there a way forward? a way forward for children, for poor people? this is your life's work that i -- and i love your reflections on that. >> the supreme court us by surprise when they decided to say that medicaid expansion has to be agreed on.

medicaid has always been voluntary for all the states. they did not have to provide any assistance, but if they did, they had to do what was required under the federal law. they have a lot of discretion at the state level on how to run a program. we suggested discussions on how to run the program were not. the supreme court said you have the discretion to decide whether you want to add on medicaid services. a lot of states refused it and did not expand medicaid to people right above the poverty line, including low income, even though we put in the affordable care act that the federal government would pay 100%. it was a wonderful deal for the states to take. 100% funding for a lot of people uninsured with low income, the hospitals, the health care providers, do not turn this away.

we need it. if someone gets into an accident, they are brought to an emergency room at the hospital. if they have no insurance, the hospital has to treat them but not get paid for it area -- for it. the cost in our own health insurance premiums is estimated $500,000 a year to pay for the cost of health care for those with no insurance. the failure of a lot of states to pick up medicaid, i think, puts us on a track to a two-tiered system where people will have -- a lot of states will change their minds and they have a chance to expand their medicaid. they should. their own constituents ought to throw them out of offense -- of office. for failing to take 100% federal dollars for three years. after that, it goes to 95%.

the governors say, no, this opens it up here five years down the road, we have to put up more money for our share of medicaid. it is either that or no insurance coverage for their own citizens. >> if i may, i would only point out i think the economics of this are so clear, a good friend of mine pointed out if any corporation were thinking of relocating to a state and offering billions of dollars of money into the state, that the legislature would be passing tax incentives and begging them to come. instead, they are just turning the money away. >> federal dollars. it is remarkable. federal dollars for poor people. that is exactly right. i want to now turn to my wonderful students. we have got hands up.

he's actually a really nice guy. >> my background is in political organizing. i am wondering if, side from using those efforts to elect people from office, if there is a place for those efforts and advocating? >> we do not have a microphone, so i will repeat the question. in terms of activism and tried to get people involved in the process, there is a role to play in the elections. is there a role beyond that to influence policies? of course there is. just looking at this drug act, if it were not for the strong activism of people with rare diseases, it may never have happened. if it were not for the people who have been marching to do something about climate change, we would not have the commitment

by the administration underscored. more and more people understanding that we can just -- we cannot just ignore the problem or sweep it under the rug and deny the science and take a risk with the only planet we have to live. that is what we have been doing. action is essential. -- activism is essential. the other point i want to make is almost all of these bills we have talked about that i had a role in enacting the law, a lot of them made sense. it should have been agreed to right away. but it took 15 years from the time the tobacco executives lying to the time we passed legislation president obama signed, to give the fda authority to regulate tobacco. unregulated until 2009. it took us at least a decade before we agreed on clean air act changes.

how long did that take? the ryan white act? >> it was in 2000 -- 1990, and you did your first hearing in 1982. eight years. >> a lot of people take for granted that the government is not doing anything right, but they take for granted the times when the government does the right thing and sometimes, how difficult that thing was pier 1 -- one of of the bills i have a lot of pride in is, if you go and require uniform regulating -- of you go to the store and regulate your it diet nutrition , of different products, the calories, the sodium, the carbohydrates, whatever it is, you get that information and make decisions for yourself. it took a long time before we got that through because a lot of marketers of these products say, we do not want to change the labels, do not bother with it. but we kept at it. activism is essential, but

saying in it for the long haul is also. showing up for the demonstration is great. being there and constantly pushing is what is needed, not for every individual, but for groups to keep whooshing forward in order to get things done. once they are done, they say, of course we do not allow smoking on airplanes. they probably remember that, but we have separate sections. then we found out those people were forced to smoke involuntarily were getting cancer and heart disease and blood problems. it was just not -- it was not just a voluntary act for those who want to smoke. we learn from scientists who then adapt the laws. it sounds obvious but does not happen easily.

>> strength to the water that keeps flowing downstream and then it becomes a waterfall. >> or henry waxman is a drip. [laughter] >> thank you, congressman. my question relates to the issue of politicizing and equal treatment. in my jurisdiction, a group of the committee against the lgbt, -- the community i sensed the gay community, the lgbt, they have been discriminated against. recently, the president of my country, uganda, adapted this legislation that discriminates against the gay community. the minister of health says they have access to medicines. that was closed.

we have a non-governmental organization founded by usaid that was closed. you mentioned we should have politicized solve these problems, including ebola. i would like to deal with hiv and aids. in your line of work, how have you dealt with these kinds of politicians politicizing these accents -- the access, with the community that actually deserve treatment and access to these -- to this kind of medicine. >> an important point. we have to follow the signs. we have to follow the evidence. we have to figure out what is best for the public health and not to allow bigotry or discrimination to be the basis for any policy, but certainly not the health policy area. stand up and say what is right and what is wrong. we have come across this over the years.

people have been discriminated against. low income people have been discriminated against. gay people have been discriminated against. those who would politicize it create the others, the groups that we should not worry about. we should worry about ourselves. but we are all in this together. we have got to figure out the best solution for everybody. >> one last student question, and then i will take one or two from the audience. >> thank you for coming. we have an open presidential election coming up in three years. how would you like to see health discussed for the 2016 cycle? what would your wish be and how do you think it will actually be discussed? >> two different things. [laughter] i have been on the winning side of some debts and the losing side.

-- of some fights and the losing side and i am talking about court decisions as well as legislation. decisions are made and they are made, whether you like it or agree with it or not. in our society, we accept it and that is how thomas he works. -- that's the way democracy works. it is astounding that after we passed the affordable care act, that we had 50 separate votes in the house of representatives to repeal it. i know the republicans decided this is a place for them to take a stand against obama. they wanted to repeal it. we spent 50 separate times are killing it in the house of representatives. once or twice, they got the message. they did nothing else. we voted 57 times against this law. -- 50 separate times to vote against this law. we compiled a record. congress, we voted 500 times to weaken the clear air act,

the drinking water law protecting rivers and public , property and natural resources, 500 separate times, including provisions to deny that climate change exists and it cost us, as a result. and there is no embarrassment from people who vote for those kinds of positions over and over again. i think if something is settled, you move on. if you do not like it, change it. throw it all out, repeal and replace. they never gave us a replacement because they do not want to give us a replacement because insurance companies can -- -- can't discriminate against people with pre-existing conditions and they did not have any idea that people could pay for health insurance. a -- they do not want to give taxpayers to help them. they did not like the idea of medicaid because that is government expenditures and we

do not want to spend more money because you would have to bring in more money to spend it, which might mean an increase in taxes, especially for upper income, one of the best tax deals for anybody around the world and ever in this country. except for those with free income tax. -- with free income tax. pre-income tax. the taxes during president eisenhower's administration, compared to what people pay today, is astoundingly different. at any rate, we get those kinds of ideologies involved. i hope i addressed your question, that by 2016, we are not talking about appealing the -- repealing the affordable care act, but to get general -- genuine ideas that are bipartisan and what improvements we need, what problems have we seen? there is a case are now being brought because of the poor drafting of the law that said, only states who have set up the

exchange for health care insurance plans can draw subsidies. that was never what congress intended. we gave the states the option but the federal government would run if they did not choose their option. that should have been corrected. there has never been a complicated bill where there was not a corrective piece of legislation afterwards. if you find a problem, lee -- at least allow us to correct that problem. the republican view has been, if you would deal with it, it has to be repealed otherwise, they do not want to talk about it. i hope we get back to more i person solutions, more common sense. we have our differences and we can narrow them. give people differences and let them make a choice, not just muddy it all up with political rhetoric.

>> you have two or three minutes left. what i thought was to give you a minute or two for final reflection and then i will bring it to a close, with sincere apologies to non-students who did not ask questions. >> no tuition, no questions. [laughter] >> they are all up on the tuition and they do not default on the federal loan. [laughter] >> i only have a reflection of something i sort of said, which has come through with the comments. none of these changes is quick. it takes a long -- you have got a 40 year career in congress. for instance, you were just talking about how we could fix technical errors in the affordable care act.

we are still correcting it to this day. medicare was enacted in 1965 and we are still correcting it to this day. but my reflection is, and henry is in many ways unique to this, he is a river and not a rock. he keeps going to try to get it done. i worry when there is not the institutional memory and the perseverance in congress anymore of somebody who can look at these issues for the long haul and for the long game of trying to make those programs work. >> i would simply close -- >> weight you will close? , [laughter] >> i have always stood up to people like you. [laughter] thank you for your time. he does things, individuals can make a difference. keep in mind.

you can always make a difference. you have a goal and keep pushing toward that goal. come and work on the staff. come and be in public office. get involved. even on a pro bono basis there is do not think somebody else's issue and problem to deal with these big major issues. we all have to play a role and design that role uniquely for ourselves and keep at it. >> what a fitting conclusion. let me simply say thank you. not just for being here, because that goes without saying, but thank you for being such a giant and leader of health for our country. i cannot imagine without your leadership. we are all deeply grateful. if there is one and we turn to government for, it is for our health and protection.

congressman henry waxman has been there for us. thank you very much. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2014] >> today on c-span, "washington journal" is next and then at treasury department official discusses where the funding for isis comes from and how to and their financial support. the catoastern, institute and hosts a discussion about video cameras and police misconduct. later, the undersecretary of state for political affairs on negotiations with iran over its nuclear program. in about 45 minutes, the former chief of the u.s. capitol police on yesterday's shootings in ottawa.

then a look at how health ca is being used as a campaign issue. families usa executive director will be with us.