The Federalist Society Lawyers Division: The First Ten Years (1986-1996) [Archive Collection]

[Music] they never intended for example that the courts preempt legislative prerogatives or become vehicles for political action or social experimentation or for coercing the populace into adopting anyone's personal view of utopia now during the past two presidential elections i've made it clear to the american public that i felt the courts had sometimes gone too far in interfering with the constitutional prerogatives of other branches of government even while they neglected their constitutional duty of protecting society from those who prey on the innocent president reagan's comments in an address to the u s attorneys are stark testimony to a concern shared by many of us throughout the nation the obligation of the legal profession in the judiciary to defend the founding fathers vision of a constitutional republic hello i'm senator orrin hatch i believe that one of the most important tools in this effort is the federalist society for law and public policy studies and i'd like to tell you a bit more about the society and its role the society was founded in 1982 by law students at harvard yale the university of chicago and stanford in the few years of its life it has grown into a national organization which now includes lawyers and legal scholars as well as students the founding fathers understood that throughout history governments have often put their own ambitions and convenience above the freedom of the individual and the laws of god our republic is premised on the principles of limited government federalism separation of powers and respect for free markets in both ideas and commerce and it is the particular duty of the legal profession especially the judiciary to preserve this vision of the founders as expressed in the constitution i believe that this duty has been largely ignored i further believe that some judges on the high courts of this country instead of doing their utmost to accurately interpret the constitution often strain that document into a justification of their own political views and now that the american people have discredited much of the liberal agenda activists are more than attempting more than ever attempting to use the courts to pursue their goals in the law schools future lawyers are taught not that the courts are bulwarks of the constitution but that they are vehicles for social change to be used when the people refused to vote as certain groups would like the federalist society is in the forefront of the fight to reform our legal system so that it places a premium on individual liberty traditional values and the rule not of men even if they are judges but of law the federalist society launched its lawyers division in 1985. our goal is to enroll 50 000 lawyers by 1989. here in washington there is a flourishing chapter made up of some of the most talented and influential young lawyers in the city and the federal government several of my senior staff members on the senate judiciary committee are members of the lawyers division and i think their participation is essential to keeping in contact with the best legal talent and thinking there are already lawyers division chapters in new york los angeles chicago and houston and new ones starting in denver seattle and detroit this year we're launching a national legal magazine to help keep up contacts and also to report on important legal developments the lawyers division will also hold an annual convention to bring together lawyers from around the country who share a belief in the rule of law and limited government as shared by the founding fathers this convention will set goals for reforming the legal profession and recalling it to constitutional standards for most lawyers it is the local chapter that becomes the focus for their regular involvement with the society in just a moment you will be hearing from a group of people who have all had first-hand experience with the lawyers division and its activities but first i want to share with you a recent moment at the washington chapter when the speaker was attorney general edwin mace as you might imagine there was a standing room only crowd and the national press seemed to be in full coverage a jurisprudence that is based on first principles is an instrument that's neither conservative nor liberal neither right nor left it is a jurisprudence that cares about committing and limiting to each organ of government the proper ambit of its responsibilities it's a jurisprudence that is faithful to the constitution itself and by that same token an activist jurisprudence on the other hand one which anchors the constitution only in the consciences of jurists is a chameleon jurisprudence changing color and form in every era the same activism that it may be hailed today may threaten the capacity on a different occasion or in the future for decision through a democratic consensus tomorrow as in fact it has many times in the history of our country ultimately as the early democrats wrote into the massachusetts state constitution the best defense of our liberties is a government of laws not of men there is a great temptation for those who view this debate that we're talking about today from the outside particularly to see it as a clash of personalities or a bitter battle but you and i and i hope the other participants in this dialogue know better about what it should be we and our distinguished opponents should be and i hope we will carrying on the old tradition of free uninhibited and vigorous debate because out of that level of argument well there will be no losers there will only be one winner the truth i would suggest to you that that's the american way and i suspect that the founders wouldn't want it any other way thank you the federalist society plays an enormously important role today law students and lawyers coming together to discuss their ideas on limited government and on individual freedom in the development of these ideas we are preparing a new generation to enter the public policy process i welcome their entrance i welcome the increasing influence of the federalist society in washington and throughout the country as president of the d.c lawyers division of the federalist society i know the contribution that the federalist society has made to the debate about limited constitutional government in this country this debate has occurred everywhere throughout the country where chapters of the federalist society have been organized on college campuses and communities and elsewhere we can continue this progress we can continue to see that the perspective that we bring to the debate about constitutional values has continued as the federalist societies expanded throughout the country now law students who were in the federalist society while they were in law school can graduate join with established lawyers in the lawyers division and begin to form a real national conservative legal network such networking can help ensure that good judges get on not only the federal bench but on the neglected state benches as well it can provide legal talent in local controversies and it can change the intellectual and political atmosphere in which american lawyers practice for generations there has been a liberal bias in our public schools our universities and our law schools this has produced a very overwhelming and pervasive liberal bias in our legal profession particularly among those who are activists who are organized and who seek to influence our society and our legal institutions now the federalist society particularly the lawyers division gives lawyers of the other side from the other side of the political spectrum an opportunity to meet with one another to have some influence to hear speakers and to work together to change the left-leaning bias of the legal profession i believe that the founders bequeathed to us a government uniquely respectful of the equal dignity and natural liberty of men created in the image of god i do not believe that the defense of the constitution is a casual matter i believe that it is our most important political work that the defense of free markets of our religious freedoms have the right of parents to pass their values along to their children without the interference of government and the defense of democracy are all subsumed in the struggle for the constitution for me this is the most important fight and i believe that the federalist society is the single most important addition to this fight in decades allow me to introduce you to one more group of friends who feel as strongly as i do about the importance of the society i think that the federalist society is uh is providing a very uh a very reasoned uh counter balance and counterpoise to some of the uh existing uh groups that uh that in all candor and i don't mean in any way to disparage them but basically feel like they they have some kind of a of a perpetual lease on um commitment to civil rights and on on how to how to go about correctly thinking about civil rights so i think the federalist society is a very positive development in the area of civil rights uh first but uh but certainly in in every other area of the law i think the growth of the federalist society as an organization within the law schools and within the legal profession is a terribly important development both because it offers up some hope for internal reform so to speak and also because it provides a forum for a much broader consideration of questions of the proper role of courts the proper role of law in society what do we mean by when we say that we're proud to be a society that governs uh itself under a constitution i think the federalist society is both intellectually and programmatically the single most important phenomenon in not just legal education i think it not hyperbole to say down here in the law itself today for one it's a great institution to season young lawyers to go against the grain can't get better training as a professional lawyer than to learn to go against the direct grain it's an institution that i see clearly as i talk to students in the federalist society an institution which provides support and good intellectual fellowship and challenge as a society board member i would say that we are truly pleased with what we've accomplished so far but our task has only begun we want to appeal to all those who share the society's belief in individual liberty limited constitutional government the separation of powers and the rule of law to join in our efforts we want to encourage them to participate by speaking out and joining in the public debate and discussion i have committed myself to doing everything i can to help the federalist society to expanding the student division to making the new lawyers division a national force and to making the federalist society as much of a household word and a far better influence than the aclu as you can see i'm committed i intend to go right on appointing highly qualified individuals of the highest personal integrity to the bench individuals who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism i want judges of the highest intellectual standing who harbor the deepest regard for the constitution and its traditions one of which is judicial restraint how far we've come these last eight years not only in transforming the operations of government not only in transforming the departments and agencies and even the federal judiciary but also in changing the terms of national debate and nowhere is that change more evident than in the rise of the federalist society on the campuses of america's law schools to think of it in schools where just a few years ago the critical legal studies movement stood virtually unchallenged like some misplaced monster of prehistoric radicalism today you are vexing the dogmatics of the left the federalist society is changing the culture of our nation's law schools you are returning the values and concepts of laws our founders understood them to scholarly dialogue and through that dialogue to our legal institutions yes you are insisting that the constitution is not some elaborate inkblot test in which liberals can find prescribed policies that the people have rejected you're fighting for renewed respect for the integrity of our constitution for its fundamental principles and for its wisdom and in this of course you've had multitudes of friends and supporters in our administration and that includes a certain tenet of a new nearby unit of public housing yes how far we've come since our administration arrived in washington almost eight years ago those we replaced and most of the jurists they appointed at a very different view of the law from ours they had the liberal they and the liberal elite i should say they spoke for believe the judges should be free to reinterpret the constitution with few fetters on them because the constitution must not remain as one of their allies and our critics has put it frozen in ancient error because it is so hard to amend well we replied that the principal errors of recent times had nothing to do with the shortcomings of the founding fathers they had to do with courts that played fast and loose with the instrument the founding fathers devised yes some law professors and judges said the courts should save the country from the constitution we said it was time to save the constitution from them we pointed in particular to a bizarre twisting of values that had crept into our criminal law the confusing of criminals and victims to an attitude that the law was not a vehicle for uncovering truth and administering justice but a game in which clever lawyers tried to trip up the police on the rules we said that we intended to nominate judges and justices who didn't share the skepticism of our extreme liberal friends about the fundamental values that underpin our laws in our society we would select judges who would reaffirm the core beliefs of our free land and we have you know the names on the court criers list including renquistan and o'connor and scalia kennedy and of course judge robert bork but already we can see the new realism that these and so many others have brought to our courts i'm happy to report that as more and more of our appointees have served federal courts have become tougher and tougher on criminals the average federal prison sentence grew by almost a third from 1980 to 1986. and what's more as our judges by argument and example reversed long-standing attitudes about crime and criminals that prevailed in both federal and state courts we also started to see crime rates drop between 1980 and 1987 the overall crime rate fell by nearly 7 percent while nearly 2 million fewer households were hit by crime in 1987 than in 1980 yet these statistics hardening as they are reflect only this the surface of the changes of the last eight years changes that have extended out beyond the judiciary and to every aspect of law enforcement on the federal and even state level eight years ago even the idea of a war on drugs was greeted with amused smiles in this smug capital the last liberal administration had started to lose interest in narcotics cases altogether each year they brought fewer cases to trial and by their last year in office convictions were down by half we changed that we hired more than 4 000 new agents and prosecutors and under the vice president's leadership federal state and local law enforcement officials started working together to stop the smuggling of illegal drugs into our nation still some failed to take our emphasis on crime seriously their friends in congress held up our reforms the federal criminal code for years and more recently they cut funding for the coast guard among the most important agencies in our battle against the international drug rings and gave the money to amtrak you know i keep wondering about the liberals thank you very much uh spence it's a personal privilege for me to bask in the warmth of your introduction at the same time that i extend an official welcome to you to washington we go back a number of years and i read of your attachment to the vice president's staff with a great deal of satisfaction and pleasure it's also good to be here with those of you who are involved in and supportive of the work of the federalist society you were kind enough really to extend me an official welcome shortly after i came to washington in the fall of 1988 and it's a great pleasure to return once more and share with you some views i continue i believe in a great tradition of support and interest in your activities both of my immediate predecessors bill smith and ed meese for strong supporters and active participants in the programs that you carry on and that is a tradition i am pleased to see perpetuated last fall i had the unique opportunity to be the first attorney general of the united states to undertake an historic dialogue on the rule of law and human rights with those leaders in the soviet union charged with responsibility for law enforcement and the administration of justice our week-long visit to moscow at the invitation of the soviet minister of justice afforded us the chance to range over a wide variety of subjects central to what makes our democracy work our bill of rights our federal system our two-party political process and most important the principle of separation of powers embodied in our constitution it was perhaps this last the concept of the separation of powers that most confounded our soviet hosts it seemed almost to be a distraction from their apparently sincere effort to fashion what president mikhail gorbachev has described as his ultimate aspiration a law-based state to the russian officials judges law professors and students with whom we exchange views the concept of purposely building in a constructive tension between separate branches of our concept of checks and balances was at the least puzzling and at the most incomprehensible accustomed to their own monolithic system they would surely have to struggle to understand justice brandeis's observation that we adopted the separation of powers in 1787 not to avoid friction but by means of the inevitable friction incident to the distribution of government powers among the branches to save the people from autocracy we in this nation on the other hand too often take for granted those principles which are truly at the heart of our democratic process so your focus this weekend on the separation of powers serves the dual purpose of sharpening our own focus on these principles and at the same time highlighting some unique aspects of our system that might yet be emulated by the new democracies in eastern europe and who knows perhaps in the soviet union itself let me then offer a brief present day lawyers view on separation of powers here in the united states as lawyers we have been educated and trained in the value of process as much as we may be committed to the idea of preserving individual liberties we know that the only bulwark that will truly protect those precious liberties is process the rights and freedoms of all citizens are only as secure as the system established to protect them is strong for instance even the soviet union has a document that purports to establish rights for its citizens like our own bill of rights the fact that the document obviously has not done so that the soviets are now turning to us for legal advice on how to make any such guarantee of rights work should tell us something what i believe it tells us is that separation of powers justice montesquieu and locke and madison argued is the surest protection for individual liberty in a system of secured democracy and it is good fun to be here today and and this is a very important group because i know the enormous contribution the federalist society has made and uh contributions in terms of our basic fundamental understanding i think of the nation's constitutional heritage that's been a major contribution and it is indeed and i say it with all sincerity an honor to come spend some time with you this afternoon i think this uh conference on the presidency in the congress is an important one it's a subject near and dear to my heart and i thought i'd spend a few minutes this afternoon i could on a couple of of important items that i think bear consideration given current state of affairs as james madison tells us in federalist number 47 no political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than the truth underline the separation of powers today i want to talk about two major separation of power issues and national security policy the notification of the congress of special intelligence activities and the war powers but first i want to begin with a preliminary observation edward corn as many of you i'm sure are familiar a legal scholar once wrote that the constitution is an invitation to struggle between the executive and legislative branches over foreign policy and there has been plenty of struggle over the last 200 years of american history but it would be a mistake to conclude that the constitution simply distributed the foreign policy powers at random the powers are distributed according to a fairly consistent set of underlying principles broadly speaking the congress was intended to be a collective deliberative body the presidency and contrast was designed as a one-person office to ensure that it would be ready for action its major characteristics in the language of federalist number 70 were to be decision activity secrecy and dispatch the government works at its best when both branches contribute according to their respective designs and when that happens the constitution to paraphrase a forthcoming brookings institution book can be an invitation to committee and not just to struggle unfortunately the relationship was one of enormous struggle in the 15 post-vietnam years of the carter ford and reagan administrations rather than each branch playing to its unique strength each seemed increasingly to be convinced that the other was trying to do everything by itself today one year into the administration of president george bush i can say that both branches seem to have taken some steps to improve the situation congress deserves some of the credit for helping lower the temperature but i work for the president and i want to tell you something about the way president bush has conducted himself the president has clearly used his powers decisively prudently and well he also has made clear his view of his responsibilities and has been willing to assert his constitutional authority in the fields of national security and foreign affairs the president genuinely respects the role of the congress but he also has decided to stand up forthrightly to preserve the powers of his own office he's convinced that all branches have to work well for the government to work well he's also convinced that federalist number 51 is right that if he does not stand up for the presidency no one else will paradoxically it turns out to be easier to reach work workable accommodations with congress when the president is firm unfortunately the general improvement in atmosphere has not brought about a resolution on all major issues let me note two outstanding examples as i mentioned earlier the war powers and the notification of congress on special intelligence matters under the 1980 amendments to the national security act the president's required to notify congress before beginning any significant intelligence activity but the law also allows for situations in which prior notice will not be given when that happens the law requires the president to fully inform the intelligence committees in a timely fashion you will remember of course that one of the big issues in the iran contra investigation was the fact that president reagan waited 11 months to inform congress about the sales of arms to iran after the investigation many members responded with a classic example of what i call never again legislation by never again legislation i mean legislation that reacts to a past decision by trying to make it impossible for any president to make the same decision again no matter how the world might change or whatever future circumstances might arise the way congress has been thinking of saying never again to iran contra is by passing a bill that would require the president under all conditions with no exceptions to notify congress of all special activities within 48 hours in 1988 the bill passed the senate but never reached the floor of the house in 1989 the issue was revived as part of the intelligence authorization act that year's round produced a compromise that the president believes protects his interest however intelligence committee members have said they will address the issue again in 1990. generally there is no problem with notifying congress before an operation starts or very soon after it begins but no president can accept a statute that conflicts with his constitutional responsibilities in our time in truth robert bork is once again for us an american founder now surround now reminding us the american people to preserve and sustain that glorious vision of man and civilization that still exists for our guidance in the constitution of the united states i give you quite proudly robert [Music] [Applause] thank you thank you very much you do warm my heart uh i found mr glickis as a publisher and editor because when i left the bench i said i called george will and said i know nothing about this industry where do i look and he said go wherever erwin blickus is he's the best editor in america and i uh found that to be true particularly since he didn't edit heavily that's the way george field but unlike a lot of other editors and publishers he wanted a serious book about the philosophy of constitutional judging and not a book about the usual washington book about how there were three of us from the room and i was the only honest man there so i got to write the book i've been wanting to write for 15 years and uh it does seem to be doing quite well perhaps due to the three and a half years i think it was i spent in the senate hearing room but i discovered i'm competing with books with names like everything i needed to know i learned in kindergarten and it was on fire when i lay down on it but it's been a an enormously enjoyable experience working with the free press in particular working with irwin glickes and i recommend it to you it's also enormously enjoyable once more among the friends of the federalist society there is no more important movement in american law today than this society which understands and battles for the idea that law is something more than politics and that is an idea we have been in danger of losing and you are helping to bring it back well the subject of the book of course is the separation of powers in that case the tendency of the judiciary to invade the province of the legislature but today i want to talk briefly about the health of the constitutional separation of powers in another area and perhaps in no area is the separation of powers more threatened than in the conduct of foreign affairs and more specifically in the use of american force abroad in this area in recent years congress has become increasingly active and has tried to control the president's actions with respect to force for the degree of detail that cannot and has not produced vigorous or coherent policy a prime example of that of course has been a vacillating and contradictory policy we follow with respect to the contras in nicaragua more generally there is the desire of congress to make or to invoke with respect to the use of american troops abroad no nation is more devoted to the rule of law than is the united states but there are areas of life and the international use of armed force seems to me one of them where the entire notion of law that is law conceived as a body of legal principles declared in advance to control decisions to use force where that conception of law is out of place yet the pretense that there is such law and that it has been constantly violated has debilitating effects upon our foreign policy and upon the vigor of the presidency and the rightful place of the president in the conduct of our foreign affairs two examples of that come to mind one is international law about the use of force and the other is domestic law that is the war powers act these two spring from different sources but they are like in that they are not law in a recognizable sense they are not enforceable and their main use is as a weapon for those who think a policy they don't like a policy but for political reasons are afraid to criticize it and so they claim that the action the president has taken the invasion of grenada the support of the contras the attempt to rescue our hostages in iran the incursion in panama the bombing of libya the list goes on and on they claim that those actions not that they're not prudent not that they're not moral but that they are violations of law and this tends to turn the debate from where it should be whether an action was in our national interest and whether it was moral to a debate about whether the president is a law violator legalisms displace moral discussion and the president's position is weakened and congress's position enhanced thank you [Applause] well thank you so much that was a rollicking federalist society introduction that's all i could say uh i'd just like to say at the outset how much you people mean to me i don't know of any legal organization that has had such a dramatic impact across this country as you've had and you're just beginning and i don't know anything that has given us more heart or more courage or more enthusiastic feelings than the federalist society the brightest of the bride people are willing to get in there and understand the most difficult of all of societal concepts and who are willing to get out there and fight for them and write for them and work for them and to be part of the government if necessary something conservatives would never have thought about a long time ago but before i begin my preferred remarks i'd like to just share with you a few uh random thoughts on the proceedings if we can call them that and the judiciary committee that have been going across town this week as of early yesterday afternoon when i questioned judge thomas he had been asked his views on abortion at least 70 times by the end of the day yesterday the tally was up to 90 question on the questions on abortion and by now i suspect that the count may well be over a hundred now i remind you as i reminded the committee yesterday that one year ago almost at the same time this very same committee asked judge suter a total of 36 questions on abortion now the liberals like to talk about disparate impact and imbalances as constituting as constituting discrimination i asked yesterday and i ask again today why is judge thomas being singled out and badgered about abortion far more than judge suiter or now justice suiter i think this is a very disturbing development the fact of the matter is is that he's been asked three times the questions and that's after saying look this is one of the most controversial of all issues and i really don't want to prejudice my rights to sit on this case in the future on the cases in the future because they will come up before the court and i think it would be improper for me to comment about what i personally feel about these manners then he went further and he said look i really am undecided on this issue i don't know where i'm going to be and i have no agenda but i'll promise you one thing i'll listen carefully and i will try to decide these cases in the most fair and honest manner i can now to me that's the answer but no they wanted to press and say well don't you agree that the woman's right to choose is a fundamental right under the constitution well i imagine if he said yes you can imagine the headlines all across the country clarence thomas has ruled on abortion and then they would say anybody that would rule and advance on abortion shouldn't be on the supreme court anyway but i personally think this is a very disturbing development and one which the american people are not pleased with if the radio talk shows are any reflection of public opinion i think they're starting to catch on that there's something wrong with the confirmation process with regard to supreme court nominees at least lately over the last 10 or 12 years and i think it's obvious to all now that despite their efforts to do so some of the democrats have not been able to score any hits on judge thomas the american people know this and they feel this and the democrats know this and it would not surprise me that as the level as the liberal desperation level rises we may see questions asking judge thomas if he had anything to do with the poisoning of zachary taylor or if he was in dallas in november of 1963 or if he had anything to do with the disappearance of judge crater you know or if he was responsible for the delay of the release of the hostages in 1980 i should also like to remind uh you know the audience that judge thomas has been criticized for speaking to this society you know which those who hate it have characterized as far right an extremist well having said that let me be let me tell you how happy i am to be here with you today to speak to this assembly of individuals who by their presence here have been jeopardizing their chances for future confirmations if this if this liberal mccarthyism continues individual responsibility it seems to me is not only a first principle of limited government in my judgment individual responsibility is the first principle of limited government the framers of the american constitution had no illusions about human nature because the experience of men taught and i should add still teaches that to concentrate government power is to invite tyranny the framers divided power horizontally among unitary a unitary executive an independent judiciary and a bicameral legislature and virtually between the national government and vertically between the national national government and the states in the form of federalism americans are justly proud of the constitution and it's two centuries of continuous operation and too often we fail to remember however that the framers did not consider the constitution to be the primary guarantor of our liberties publius and the 51st federalists characterized the architectural features of the constitution as quote auxiliary precautions unquote for the preservation of liberty if the authors of the federalists saw the constitution itself consisting of mere auxiliary precautions what then did they consider the principal guarantor of liberty and limited government publius answers on the 51st federalists that quote a dependence on the people is no doubt the primary control on the government unquote in the 55th federalist publius somewhat offhandedly explains limited government's dependence on the people even as human nature counsels against dependence on self-restrained by the rulers he said as there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust so there are other qualities in human nature which justify a certain portion of esteem and confidence republican government presupposes the existence the existence of these qualities in a higher degree than any other form the federalist contains few if any other references to this quote dependence on the people unquote for the quote primary control unquote of the government apparently the synoquinon of a virtuous citizenry for limited government was so self-evident that there was no need for further discussion of the proposition is understood to be a part of justice it is in fact by i think our understanding of it the first entitlement perhaps the most fundamental in some sense of our political structure but it certainly therefore becomes as we discuss questions of justice a kind of limiting concept that always has to be on our minds so that as we get further and further down the road especially in discussions of distributive justice who gets what particularly in a material sense we are reminded that for us justice has not only a distributive but a substantive meaning you cannot do justice if you do it without respect for the essential dignity of the human beings you are dealing with and that essential dignity requires that they be treated with respect for their capacity at least for freedom for liberty for the kind of capacity and opportunity to make choice choices and decisions for themselves that i think we consider to be very important in our society translated into its more elaborate political form that understanding becomes a concern with the need always to reconcile the pursuit of justice with the perpetuation of self-government since obviously it's possible for all of us to imagine a regime in which some one or several all-wise beings would order things in such a way that everyone got what they deserved that justice was done and that the only requirement of this regime would be that all the individuals who were getting what they deserved should surrender in return their capacity and opportunity to make decisions even bad ones for themselves now i don't know about all of you but barring my passage to that realm of eternal rest i have always assumed that if someone offered me that bargain i would reject it and i would reject it because i'd rather make bad decisions and suffer the consequences than be enslaved to good masters the goodness of mastery never being the question for me but rather its existence and its implication for my person and that of others of slavery now i go through that discussion because i think it is the best starting point the best way if you like to remind ourselves of the limits that we should as citizens of a regime concerned with freedom and self-government place on our discussion of justice in a more abstract sense we are not simply concerned with who gets what and how much we are not simply concerned with how well individuals and human beings may fare in the distribution of society's goods resources services opportunities and so forth and so on because for us there has to be along with those kinds of concerns which can exist in any regime there must go hand in hand with that a profound and fundamental concern with the maintenance of freedom and self-government which are the peculiar and particular characteristics aims and ends of this regime and i think that is very important i actually think when you think it through that that settles a lot of the issues that we always discuss at great length in the society or at least it gives us a clue as to how we may deal with them because it means that no matter how much good we may wish to achieve we do not have the right to achieve that good at the expense of the freedom of others and when i use the word freedom i don't mean it in just the licentious sense of people out there doing whatever they please i mean it in the sense of creating preparing maintaining that society and environment in which individuals who are capable of freedom can develop that capacity and exercise it in a way which is consonant with the perpetuation of the society's existence that's what i mean i always have to respect that now i think that has direct implications for all kinds of entitlement programs and i'll in the next couple of minutes for me i should end with a law school experience i was at harvard because i promised i'd explained to you why i don't know much about the law and after my first year at law school [Music] maybe i already have explained to you all right after my first year i took my course list into my advisor for my second year courses my advisor was a tax professor named andrews i think it's andrew's andrews wore bow ties remember andrews okay all tax professors wear bow ties thank you and my courses were legal history uh jurisprudence two jurisprudence courses comparative law russian law and uh law and ethics and he said what is this and i said it's a program of study at the harvard law school yeah for second year students and he said you can't be anything with uh this kind of a program and i said i don't want to be anything i i said i i'm working on my phd in philosophy and i'm interested in jurisprudence and i want to i want to study this and he said i don't think i can sign this i mean there's nothing on this list there's no corporations there's no what do you take second year tax there's no commercial transactions there's no deconstructive no they didn't say that i'm making a anyway he said go back and think about this which was a very nice thing for him to do because i really did have to go back and think about it and realize that i was at one of supposedly one of the great law schools in america blowing my chances to be a lawyer in the way that many people there were going to be lawyers and i had to think about what i wanted to be when i grew up and whether i really wanted to take this course of study and i decided uh yeah i did and i went back to see him and he said i think it's wrong there was that word again and i said i'm going to do it anyway now at that point those of you who are juris prudes i said juris prudes i don't want anybody to misunderstand what i said understand that i shifted from talking about the morality of obligation to the morality of aspiration i started to talk and think at least in this context about not just what i was obligated to do as a member of society as a catholic or as a boy scout or as an undergraduate as a student but what i wanted to do and be when i was grown up in terms of my goals in terms of my aims but still there was someone there in my life giving me some guidance and judgment about it the reason i bring all this up is not to be tedious i hope not to go on too long but to say that it seemed to me however it turns out it was extremely helpful for me along the way to have had a lot of people lined up at various stations in my life saying certain things to me about my behavior about my actions about the steps i was taking people who are even honest enough and candid enough to say what you did here was wrong you violated the rules this isn't right get back on get back on track robert coles in his study of the girl scouts study that he did with several other people points out that one of the biggest problems with kids these days is that nobody is giving them any guidance whatsoever nobody is telling them this is right or this is wrong uh there's a lot of congratulatory stuff going on but there's not a lot of straight speaking about things i know the difficulties of laying it on too heavy and laying it on too thick and coming on with two to a tougher view of the world nevertheless i think and it was interesting to read this review in this book by cole that he thinks we need more such stating of the candid statement of responsibility on the part of adults not less in one section of the book and i leave this to you to think about cole says that one thing he's very worried about is the use in the schools of what's called self-esteem and the emphasis on self-esteem he worries that too much emphasis on self-esteem might lead students not to have an appropriate degree of guilt or regret about actions they have taken well i would hope that we could strike a path which is neither dumbly or naively caricatured in this self-esteem kind of prototype at the same time one that isn't makes the child so guilt-ridden that the child is no longer able to function when you look around at things like facts in the world and see the condition of many of our young people i think it is fair to say that the problem the shortage right now and this suggests to us where we ought to shift our weight is toward saying those things again saying them with love saying them with understanding saying them with patience but saying them again if we just nod in the direction of individual responsibility but do not teach it do not take the trouble of taking a stand for it daily in schools and in playgrounds and in soccer games and in other places it seems to me then we cannot complain that things are going badly but nobody seems to be doing anything about it um if there are false bids for government securities or lousy investments on the part of savings and loans or people deciding to spend their time knocking out crack or people fathering children but not fathering to them perhaps where our attention and energies have to go is in standing at these various stations saying these things along the way again not saying them with patients saying them with tolerance and understanding but nevertheless saying uh as learned hand said or to paraphrase learn at hand so that we do not have a society so riven that the courts and the laws cannot save uh it seems to me that as holmes said the solution to most of our problems is for us to grow more civilized and the way we grow more civilized is by remembering those steps we have to take along the way if we don't take steps and stand at the stations it's possible that no one will thank you very much thanks for your time now that almost a year has passed since the nomination of clarence thomas to be associate justice of the supreme court of the united states it seems an appropriate time to reflect on the events there is much for me to remember clarence thomas is my friend and my wife was one of his most outspoken proponents and defenders during the confirmation so i admit to having suffered at the misery inflicted upon him but confirmations as i have said before are political and federal judges should not be heard to express a view as the right way either interest groups or senators should go about supporting or opposing nominees it is on the other hand very much the business of federal judges to comment on the manner in which other judges behave during a confirmation my proposition which once would have been thought non-controversial indeed rather obvious is the judges assiduously should avoid public involvement in this intensely political arena of course the nominee under present conditions has no alternative but to become something very much like a political candidate during the endless weeks between his or her nomination and the senate hearings if the nominee does not seek to martial support with the help of political institutions he or she risked being crushed and personally destroyed nevertheless in my view that necessary political posture should never be allowed to affect subsequent decision-making as a supreme court justice nominees to the supreme court or for that matter to any federal court should therefore refuse to answer questions in the confirmation hearings that bear even indirectly on controversies that will come before them the notion that it is perfectly appropriate to discuss the doctrinal basis of a class of cases so long as the nominee avoids explicitly saying how he or she would cast a vote in a concrete case is in my view fatuous going down that road one can quickly say so much as to make the final step unnecessary moreover the reason it is inappropriate to indicate one's vote in a particular case that it undermines the integrity and the independence of the subsequent adjudicatory process applies equally to general discussions of doctrine in either event the nominee under oath is led to restrict his or her future freedom of decision making which is necessarily unfair to litigants if one is forced to use the famous example to swear fieldy to the right of privacy recognized in griswold versus connecticut is not he or she psychologically hampered if subsequently as a justice he or she hears an argument that seeks to limit or even re-examine griswold's premises many would say that is perfectly all right because of their strong view of the merits of griswold but it should be recognized that this is not a principled position it is actually much worse for a nominee to answer these kinds of questions in the crucible of confirmation hearings than it would be to give a public speech on the subject an answer to a senator's question could be seen to be a quid pro quo for a confirmation vote putting a future justice or judge in a more difficult position to offer the requisite open mind to litigants it might be thought that this is strictly a matter for any nominee to decide looking only to his or her conscience but i would disagree the type of confirmation dialogue we have suffered through and now have come to expect as i said before threatens the independence of the judiciary and all judges have an interest in protecting that independence i realize that after the bork hearings and subsequent confirmations the purest position has become difficult to hold to but it is time to call a halt to the slide recent nominees have been astonishingly resourceful in seeking to avoid confirmation commitments but it gets harder and harder justice thomas deft use of the phrase i have no quarrel with that decision which of course is exactly what any open-minded judge who has not yet read briefs attacking a president should say will i am afraid no longer suffice i do not blame senators for asking searching questions the answers to which i believe improper the responsibility to decline is the nominees but he or she deserves the full support of the judiciary and the bar i wish to focus this talk however on another aspect of the confirmation process the proper public role for judges regarding the appointment of other judges or justices unfortunately the intensity of the battle over the confirmation of justice thomas led judges to cut the mooring lines that should have restrained them from drifting into the political fray perhaps most striking judge john newman of the second circuit wrote an op-ed piece in the new york times at the height of the structure urging the president to withdraw the nomination and to nominate instead another black judge from the second circuit who is like judge newman a carter appointed i do not see how it could possibly be suggested that judge newman's dramatic entry into the intense political controversy was appropriate conduct for a federal judge yet i saw no public criticism of his extraordinary action not from the bar not from the law schools and certainly not in the press after justice thomas was confirmed another circuit judge this time from the third circuit former chief judge leon higginbot wrote justice thomas an open letter immediately thereafter published in the university of pennsylvania law review the letter can only be described as a political polemic which among other things attacked justice thomas's statements when chairman of the eoc the party executive branch as well as the positions of american conservative political figures such as presidents ronald reagan and george bush the letter's patronizing tone telling a new justice how to vote we're surely in shockingly bad taste but it's political cast it could have served nicely as an election campaign speech breached any conceivable standards of judicial ethics again not a word was raised in protest by the bar nor in academia and the press covered judge screed with unconcealed admiration and delight still i believe the more important influence and the key explanation for the recent misbehavior of judges is the press mr dooley said as you will recall that judges followed election returns not so they of course owe their appointments to the electoral process but in past decades the courts protect perhaps particularly the supreme court and seem to take pride in ignoring popular will federal judges have instead appeared particularly prone to listen very carefully to the views of what has been described as the new class or lately the chattering classes and the united states that very much means the press it is a common place that in a democracy we expect the press to patrol the abuses of government officials certainly the press often performs that role why then has it not restrained judges from getting into the political disputes that i described earlier why is it that these judges know in their bones if you will that a certain kind of public utterance or action regardless of its impropriety will not be questioned the answer as i suspect i have foreshadowed is that the american working press has to a man and woman accepted and embrace the tenets of judicial activism unlike the law schools where one can still find a few very few but a few professors who assert the virtues of judicial restraint i have never met a legal reporter who holds to that view some columnists and editorial writers to be sure but no reporters and the cumulative weight of american legal reporters overwhelms those few columnists or editorial writers whose opinions are openly on display i once thought that was so because journalists covering the courts are primarily non-lawyers and might therefore be thought to be interested only in cases as policy issues but the truth is that the lawyer reporters are among the most unbalanced the least abashed at asserting the value of judicial activism the worst in my view with the notable exception of the wicked witch of the airwaves [Applause] the worst in my view are found on the pages of the new york times whose general news coverage in recent years has seemed to approach a daily version of the nation we never realized how much discipline abe rosenthal exercised until he retired and the advocates were allowed to run free it seems that the primary objective of the times legal reporters is to put activist heat on recently appointed supreme court justices tom sole has described this technique as the greenhouse effect [Music] it has occurred to me that one could draw a parallel between modern judicial activism and what could be called journalistic activism both likely stem from the new classes in patients with the workings of american democracy in the latter half of the 20th century if one believes that reporters had some sort of obligation to seek objectivity and reporting both could be thought an abuse of power but one probably cannot draw from the first amendment the same sort of corollary obligation to neutrality that one must certainly take from article 3. journalists have a legal right to be as partial as they wish it may be there is no real ethical obligation restraining partiality either in any event i doubt if i outstanding to raise that issue except to know the hypocrisy with which journalists discuss the matter i can however legitimately describe the nature of journalists reporting on the judiciary because it has impact on judicial behavior since it is virtually impossible doctrinally to defend judicial activism in a democracy the strategy of those journalists who wish to support judicial activism is to deny the possibility of judicial restraint to challenge the notion that there is anything to the pursuit of neutral principles or alternatively to so use the terms as the hopelessly confused debate it reminds me very much of my experience in foreign policy communist and third world opponents of democracy would never frontally attack the concept they would instead seek to debase to debase the currency by misusing the term thus democracy was used often to refer to coercive methods to achieve relative equality of nominal income my particular favorite though was the phrase communist ideologists used and invented to describe dictatorial decision making they called it democratic centralism i expect that in the same orwellian fashion this speech criticizing judges for political interventions will in turn be described as political reporters will often describe an opinion they dislike as activists when it strikes down an act of congress is unconstitutional if one believes that the constitution is positive law rather than a delegation to a continuing constitutional convention that charge is of course silly or sometimes we see a court described as activist for overruling prior precedent particularly when that earlier decision was itself the product of press approved judicial activism a decent respect for precedent is to be sure an element of judicial restraint but the core knows infusing the philosophy of judicial restraint is that judges are not policymakers and should as much as humanly possible issue policy choices when a precedent is based on nothing more than such a policy choice it may be improved but it is hardly activists to vote to overrule that case the press is ceaseless advocacy of judicial activism not only induces judges to misbehave in the manner i have described earlier but also its has its impact on judges decision making over time when i once served in the executive branch i watched the press shape the behavior of senior appointees some it seemed to allow their entire daily agendas to be set by the morning papers the desire to carry favor with and avoid criticism from the washington press corps outranked for many loyalty to the president or respect for the congress i do not think i fully appreciate it until i became a judge however how much impact press coverage can have on judges of course those of us who had been involved in judicial selection had watched with great disappointment as jurors seemed to change on the bench or as the press would say grew [Music] it was quite frustrating to see those particular jurors come to accept and even relish the temptations of activism they were rewarded by being described approvingly as non-ideological deciding each case on its merits which as far as i can tell meant that they were expected to reshape the law each time to conform to a desired outcome ironically hardcore warren type activists are never described as ideological so i understand better today the reason for the evolution of some judges more often than not it is attributable to their paying too close attention to newspaper accounts of their opinions you'd be amazed at how thin skinned some judges are i am convinced that there can be no freedom and opportunity for many in our society if our criminal laws lose sight of the importance of individual responsibility indeed in my mind the principal reason for a criminal justice system is to hold people accountable for the consequences of their actions put simply it is to hold people's feet to the fire when they do something harmful to individuals or to society as a whole an effective criminal justice system one that holds people accountable for harmful conduct simply cannot be sustained under conditions where there are boundless excuses for violent behavior and no moral authority for the state to punish if people know what they are if people know that they are not going to be held accountable because of a myriad of excuses how will our society be able to influence behavior and provide incentives to follow the law how can we teach future generations right from wrong if the idea of criminal responsibility is riddled with exceptions and our governing institution and courts lack the moral self-confidence necessary to enforce the laws a society that does not hold someone accountable for harmful behavior can be viewed as condoning or even worse endorsing such conduct in the long run a society that abandons personal responsibility will lose its moral sense and it is the urban poor whose lives are being destroyed the most by this loss of the moral sense this is not surprising a system that does not hold individuals accountable for their harmful acts treats them as less than full citizens in such a world people are reduced to the status of children or even worse treated as though they are animals without a soul there may be a hard lesson here in the face of injustice on the part of society it is natural and easy to demand recompense or dispensation from conventional norms but all too often doing so involves the individual accepting diminished responsibility for his future does the acceptance of diminished responsibility assure that the human spirit will not rise above the tragedies of one's existence when we demand something from our oppressors more lenient standards of conduct for example are we merely going from a state of slavery to a more deceptive but equally destructive state of dependency it also appears bears noting that contemporary efforts to rehabilitate criminals will never work in a system that often neglects to assign blame to individuals to their for their harmful acts how can we discourage or encourage criminals not to return to crime if our justice system fosters the idea that it is the society that has perpetuated racism and poverty not the individual who engaged in harmful conduct that is to blame for aggression and crime and thus in the greatest need of rehabilitation and reform let me close by observing that the transformation of the criminal justice system has had and will continue to have its greatest impact in our urban areas it is there that modern excuses for criminal behavior abound poverty substandard education faltering families unemployment a lack of respect for authority because of the deep feelings of oppression i have no doubt that the rights revolution had a noble purpose to stop society from treating blacks the poor and other groups many of whom today occupy our urban areas as if they were invisible not worthy of attention but the revolution missed a larger point by merely changing their status from invisible to victimized minorities and the poor are humans capable of dignity as well as shame folly as well as success with that said we should be treated as such thank you uh i think that this court is not a conservative court i think it is a radical court that is radically tearing up by the roots established principles uh in at least three important senses number one substantive policy principles substantive values that are entrenched in our constitution in our bill of rights these are the most fundamental principles for the courts to enforce and this court has not been enforcing those principles it has been radically contracting the bill of rights uh and not reading them according to their plain language or their original intent i could give many examples but one that immediately springs to mind is the fourth amendment which used to protect us in our personal privacy against unwarranted unreasonable searches and seizures not based on reasonable suspicion or probable cause this court seems to have read that language completely out of the constitution and we are all now subject to an increasing host of types of searches that are completely lacking any kind of individualized suspicion mass intrusive searches and seizures now that leads me to a second criterion for conservatism which this court also violates and uh here i turn for a definition to that great political philosopher ronald reagan uh who said that his view of conservatism was getting the government off the backs of the american people i thought that was a pretty good definition and has this court done that hardly i've just given you one example in terms of allowing government to insist on all kinds of invasions for example warrantless suspicionless mass random urinalysis drug testing you have to urinate in a bottle in front of a government agent if you are going to keep a job inside or get a job in certain government agencies without any basis to believe that you have abused drugs or indeed that anybody in your agency has this is hardly getting the government off our backs likewise with respect to the abortion example that i gave previously this court has sanctioned all kinds of onerous restrictions that for all practical purposes make it impossible for a woman to make that most basic decision about her autonomy herself this court also upheld the so-called gag rule that prohibited doctors and other health professionals at family planning clinics that get government money from giving truthful accurate medically sound advice to their patients i mean this is not getting the government off our backs it's putting it in our mouths in our wombs and in the most private aspects of our lives again i could give you many other examples but before i take everybody's time let me just mention my third criterion for conservatism which is also violated by this court and that has to do with the judicial process a court that exercises judicial restraint respects precedent it does not reach uh sweeping issues of constitutional law unless it absolutely has to it defers to the decisions of elected branches of government this court has violated every single one of those basic tenets of judicial restraint and uh for lack of time let me just mention one example uh and that is the issue of starry decisis since john has already raised that issue in 1991 the term that ended 1991 this court overturned a record number of precedents far more than any other supreme court had in a single term of the court it overturned eight of its own precedents two of which were very recent uh one of which was only two years old and as if that wasn't drastic enough into to show you how drastic it was the previous record number of overturnings in a single term was two so we had a a quadrupling of that and as if that wasn't damaging enough in the opinion in which the court accomplished its eighth overturning it announced that henceforth it would feel freer to overturn past precedence specifically in the area of individual and minority rights civil rights and civil liberties according to new looser criteria and it was that ruling that led then justice thurgood marshall to issue what was his last dissent uh in which he said that the court was abandoning its traditional role as the protector of the powerless this is not a conservative court by any of the three definitions of the term okay well then it's a it's a feebly conservative court intermittently or a radical out of control revolutionary radical conservative supreme court um do you agree with all of that judge park i agree with everything everybody said i don't think it's good enough to talk about liberal and conservative on a court and i would not classify an original as court as a conservative court i think an originalist court is a court that's doing its job it's behaving as good lawyers do and if the legislation or the constitution is liberal they'll interpret that that way and if it's not they will interpret the other way but then there are people who run judges who run their own moral philosophy or political philosophy into their decision making and they're to be contrasted with an originalist court and uh those people can be either liberal or conservative and i think it's more it's better to speak of liberal or conservative when you're talking about a judge who is being political rather than about a judge who's being an originalist as being a conservative these days i think we have a court that is moderately liberal on the hot social issues that come up under the constitution and in other areas unlike the warren court which saw ideology everywhere this court when you get to areas of business law taxation and i trust administrative law and so forth crime i think it is a rather straightforward lawyer's court and it's only when you get to the issues of uh sexuality and sexual behavior and procreation and perhaps race that it is not and in those areas it becomes a mildly liberal court we uh talk i must say uh i think the the death of the fourth amendment is a little over advertised i don't notice that some of those decisions i think went the wrong way and allowed searches they shouldn't have but that's not the general pattern and of course the aclu looks at this from its own perspective they object to security devices at airports to see if you're carrying a gun onto the plane and i think perhaps that's a kind of a search that we can live with somehow at least if i'm going to fly i'm going to live with it to give the abortion decision as an example of a reach contraction of the bill of rights seems to me to be perhaps perverse is the word the fact is the constitution says nothing about abortion or about any aspect of sexuality or procreation it is silent on it is one of those topics like most topics that the constitution leaves the democratic process and the good sense and moral judgment of the american people uh the abortion right was made up out of whole cloth you can read those opinions redraw against wait until you're blue in the face and you will find no argument in there for an abortion right you'll find a dick taught when you come to uh when you come to casey i kind of enjoy that opinion because there the only statement about why abortion why row against weight is not being overruled is we suddenly have a new right it's not privacy this is the three the three judges assigned the joint opinion it is not privacy any longer it is a right of personal dignity and autonomy nobody knows what that means except that a judge will fill in those rights with his or her personal moral philosophy which will then supersede our moral philosophy uh and if we're talking about respect for precedent i think it was a year or two ago when the court five to four upheld the state death penalty law the same law was challenged uh in another case and a day later i believe it was i may be wrong about that i think it's a day later two of the five recused themselves and now the law was declared unconstitutional four to three uh if you want to talk about uprooting uh uprooting uh precedent and that you know within a day's time and that was done by the liberal wing of the court now i don't think we have conservatives have much to apologize on that scale but if you look at uh if you look at the present court i think you have at least one conservative i think you have several mild liberals and several rather pungent liberals uh and i think for example that i i would classify scalia as pretty much of an originalist and and i know he's viewed as a as a conservative but i don't think he is i think he's an originalist i think thomas may be becoming that too uh so that i don't think it's i don't think you should put those people on a category of liberal or conservative on a spectrum you should ask whether their originalism is in fact plausibly done but this is this is not the warren court it is not adventurous in all areas it is mildly liberal on hot social topics that come up under the constitution may i ask judge bourque a follow-up question of course who are the the pungent liberals and what is the particular aroma well let me let me just say this i argue up there from time to time twice last year i do not intend to answer that question for that reason thank you all thank you thank you all thank you well that's the warmest welcome i've received in uh september in quite some time i'd like to thank so many of my friends and especially my good friend leonard leo for such a warm welcome and wonderful introduction and i'd like to acknowledge and thank my wife for being here virginia thomas and so many of my friends and very dear and close friends for being here um considering the deluge outside i thought that maybe we'd have a much smaller crowd but i am most appreciative and i'd like to once again thank my friends at the federalist society for having me here and hopefully i can do justice to the fine introduction that leonard gave me once again being here the federal society is important and it's important to be a part of such a timely conference and timely issue i would like to begin by returning to the topic that leonard mentioned and topic that i touched on in my last speech at a conference co-sponsored by this organization and that is personal responsibility it said something about current state of affairs in our society that a conference on victims and on the rise of the practice of blaming circumstances for one situation rather than taking responsibility for changing things for the better is even necessary as many of you have heard me say before the very notion of submitting to submitting to one circumstances was unthinkable in the household in which i was raised the mere suggestion that difficult circumstances could prevail over individual effort would evoke a response that my brother and i could all but lip sync on cue old man can is dead i help bury him or another favorite of my grandfather where there's a will there's a way under this philosophy the essential truth of which we all recognize in our hearts victims have no refuge it may have seemed harsh at the time to be told that failure was one's own fault indeed there may have been many circumstances beyond our control but there was much that my family and my community did to reinforce this message of self-determination and self-worth much that which had the effect of inoculating us against the victim plague that was highly contagious in the hot humid climate of segregation what has become clear to me over the years as i've witnessed the transformation of our society into one based upon victims rather than heroes is that there is a more positive message to adversity success as well as failure as a result of one's own talents morals decisions and actions accepting responsibility for victory as well as for defeat is a liberating and is as liberating and as empowering as it is unpopular today overcoming adversity not only gives us our measure as individuals it also reinforces those basic principles and rules without which a society based upon freedom and liberty cannot function in those years of my youth there was a deep appreciation of heroes and heroic virtue art literature and even popular culture unlike today often focused on people who demonstrated heroic virtues courage persistence discipline hard work humility triumph in the face of adversity just to mention a few these building blocks of self-reliance were replicated and reinforced at home school and the church the rags to riches horatio algiers stories were powerful messages of hope and inspiration to those of us struggling for a better life and many of us used to read and dream about heroes not to mention our favorite television heroes our heroes and books and sometimes perhaps this is unbelievable today that we would have television heroes i'm certain that many of you who attended grammar school in the 1950s or earlier probably remember reading a favorite account of the integrity and the work of george washington or of abraham lincoln or of george washington carver or even of some baseball or football legend it seemed that we all had heroes not role models a term far more more recent in vintage indeed it would have been odd for a child of several decades ago not to have had a hero but today our culture is far less likely to raise up heroes than it is to exalt victims individuals who are overcome by the sting of oppression injustice adversity neglect or misfortune today victims of discrimination racism poverty sickness and societal neglect abound in the popular press today there are few if any heroes often it seems that those who have succumbed to their circumstances are more likely to be singled out than those who have overcome the very same circumstances what caused this cultural shift from an emphasis on heroes to a preoccupation with victims why are there more victims and virtually no heroes recognized today why in years past was there much less of an ins of an emphasis on victimage i think two things contributed to this change in the state of affairs the first is that our political and legal systems now actively encourage people to claim victim status and to make demands on society for reparations and recompense the second is that our culture actually seeks to denigrate or deconstruct heroes why would a civilized society travel down to such destructive paths why has it become no more admirable to rise valiantly above one's circumstances than it is to submit to them all the while aggressively transferring responsibility for one's condition to others preoccupation with victim status has caused people to focus covetously on what they do not have in comparison to others or on what has happened to them in the past many fail to see the freedom they do have and the talents and resources that are there that are are at their disposal our culture today discourages and even at times stifles heroic virtues fortitude character courage a sense of self-worth for so many the will the spirit and a firm sense of self-respect and self-worth have become suffocated many in today's society do not expect the less fortunate to accept responsibility for and overcome their present circumstances because they are given no chance to overcome their circumstances they will not have the chance to savor the triumph over adversity they are instead given the right to fret and complain and are encouraged to avoid responsibility and self-help this is a poor substitute for the empowering rewards of true victory over adversity one of my favorite memories of my grandfather is how he would walk slowly by the cornfield admiring the fruits of his labor i have often thought that just the sight of a tall stand of corn must have been more nourishing to a spirit than the corn itself was to his body but the culture of victimology with its emphasis on the so-called benevolent state delivers an additional and perhaps worst blow to dignity and self-worth when the less fortunate do accomplish something they are often denied the sense of achievement which is so very important for strengthening and empowering the human spirit they owe all their achievement to those anointed who are supposedly or who have supposedly changed the circumstances they do not owe these achievements to their own efforts long hours hard work discipline and sacrifice all become irrelevant in a world where the less fortunate are given special treatment and benefits and significantly where they are told that whatever gains or successes they have realized would not be possible without protected status and special benefits the so-called beneficiaries of state-sponsored benevolence are denied the opportunity to derive any sense of satisfaction from their hard work and self-help there's not a one among us who views what others do for us the same way we view what we do for ourselves the idea that whole groups or classes are victims robs individuals of an independent spirit they are just moving along with the herd of other victims such individuals also lack any incentive to be independent because they know that as a part of an oppressed group they will neither be singled out for the life choices they make nor can they distinguish themselves by their own efforts as individual as victim ideology flourishes and people are demoralized by its grip more and more people begin to think that they must claim victim status to get anywhere in life indeed is it any surprise that anyone and everyone can claim to be a victim of something these days most recently there is the backlash against affirmative action by angry white males i do not question a person's belief that affirmative action is unjust because it judges people based on their sex or the color of their skin but something far more insidious is afoot for some white men preoccupation with oppression has become the defining feature of their existence they have fallen prey to the very aspect of the modern ideology of victimology that they in fact deplore some critics of affirmative action for example fault today's civil rights movement for demanding equality yet supporting policies that discriminate based on race these critics expect the intended beneficiaries of the civil rights regime to break away from the ideology of victimhood to cherish freedom to accept responsibility and where necessary to demonstrate fortitude in the face of unfairness i do not quarrel with this but these critics should hold themselves to the same standards resisting the temptation to allow resentment over what they consider reverse discrimination to take hold their lives and to get the best of them they must remember that if we are to play the victim game the very people they decry have the better claim to victim status of course de-emphasizing heroism exacerbates all these problems human beings have always faced a temptation to permit adversity or hate to dominate and destroy their lives to counter this tendency society had heroes people capable of overcoming the very adversity or injustice that currently affects today's victims they rose above their circumstances and inherent imperfections heroes cherished freedoms and tried to accomplish much with what little they had heroes demonstrated perseverance in the face of adversity and used hardship as a means to strive for greater virtue and heroes accepted responsibility they did they did what they did despite fear and temptation and tried to do the right thing when presented with a choice between good and evil it is awfully hard for society to inculcate these values without some useful models from the past and the present i may not have i may not have realized it as a child but my grandfather was a hero who had a tremendous impact on my life he certainly would not be a celebrity by today's standards though barely able to read and saddled with the burdens of segregation he worked hard to provide for his family he was a deeply religious man who lived by the christian virtues he was a man who believed in responsibility and self-help and though this could not bring him freedom in a segregated society it at least gave him independence from its daily demeaning clutches and all the years i spent my grandparents house i never heard them complain that they were victims now they did not like segregation or think that anyone who believed in segregation was good in fact there was no question that segregation was immoral and indeed that anyone who promoted it was morally reprehensible but there was work to be done and i assure you that i did not enjoy the demands he placed on us i saw no value in rising with the chickens and unlike him i was not obsessed with what i will refer to as the reverse dracula syndrome and that is the fear that the rising sun will catch me in bed it would not be until i was exposed to the most fortunate and best educated people in our society that i would be informed that all this time and all during my youth i was indeed a victim i am sure that you can imagine what it was like when i returned home to savannah and informed my grandparents that with the education i had received because of their tremendous foresight and sacrifice i had discovered our oppressed and victimized status in society needless to say relations were quite strained for some years and our vacation visits were somewhat difficult my grandfather was no victim and he didn't send me to school to become one there are many people like my grandfather alive today but the cultural elite does not honor them as the heroes they are but instead views them as people who are sadly ignorant of their victim status or who have forgotten where they came from our social institutions do not train today's young to view such people as heroes and do not urge them to emulate their virtues now in idealizing heroic virtue and criticizing the victim ideology of our day i'm not saying that society is free from intractable and very saddening injustice and harm that would not be true but the idea that government can be the primary instrument for the elimination of misfortune is a fundamental misunderstanding of the human condition there's always been bad and suffering in the world and we must admit that wrongs have been and continue to be committed people will always be treated unfairly we can never eliminate oppression or adversity completely though we can and should fight injustice as best we can but keep in mind that all of us are easily tempted to think of ourselves as victims and thereby permit adversity to be the defining feature of our lives in so doing we deny the very attributes that are at the core of human dignity freedom of will the capacity to choose between good and bad and the ability to endure adversity and to use it for our own gain victimhood destroys the human spirit i am also not saying that we should expect everyone to be a hero all the time we humans are weak by our very nature all of us at times will permit hardship to get the very best of us but having a set of norms to guide us and to push us along the stuff of heroes can be a source of great strength if we do not have a society that honors people who make the right choices in the face of adversity and reject the bad ones far fewer people will make the right choices ultimately without a celebration of heroic virtue we throw ourselves into the state of affairs where man is a passive victim and capable of triumphing over adversity and where aggression resentment envy and other vice toward progress and true happiness what i am saying is that it requires the leadership of heroes and the best efforts of all to advance civilization and to ensure that its people follow the path of virtue and because of the role of law and how the role that law is played in perpetuating victim ideology and because of the influence law can have in teaching people about right and wrong lawyers have a special obligation here we should seek to pare back the victimology that pervades our law and thereby encourage a new generation of heroes to flourish i am reminded of what saint thomas of campus wrote more than 500 years ago about the human spirit his standard is a useful one for thinking about the instruction that our law should be offering take care to ensure that in every place action and outward occupation you remain inwardly free and your own master control circumstances and do not allow them to control you only so can you be a master and ruler of your actions not their servant or slave a free man thank you all very much [Applause] [Music] you

Channel: The Federalist Society

Views: 5,988

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Keywords: #fedsoc, federalist society, conservative, libertarian, fedsoc, federalism, fed soc

Id: 8LgZO75c-2s

Length: 109min 14sec (6554 seconds)

Published: Thu Sep 30 2021