Discusses Housing Solutions at an event hosted by the partisan Bipartisan Policy Center at 11 a. M. Eastern on cspan, cspan now or online at cspan. Org. D. C. Circuit court judge discussed the constitution. This is hosted by the American Enterprise institute. Yuval levin hi, everybody. Thank you for being here and for helping us remember walter burns and celebrate the constitution from director of social studies. It is my great pleasure to welcome what is the 12th annual constitutional day lecture held in honor of the great walter burns. We honor walter just the way he would like to be remembered become together to think about the constitution. And we do it each year with the help of some someone particularly wellplaced and gifted for helping us do that. That is very much the case. We could hardly ask for a better guide and thinking together about the constitution that are speaker tonight. On the u. S. Court of appeals for the district of columbia. It isas for one thing a Public Service of the highest caliber. She served in all three branches of government. She was a Senate JudiciaryCommittee Staff artworks on the council office. She was the administrator of the office of information and Regulatory Affairs at omb. And she has been a judges 2019. She is also a real scholar jurist sheet not only sheet taught and studied and has written about an extraordinary range of constitutional issues in particular as a law professor at george mason university. She is really a model of the kind of judge that our republic needs. We are grateful to have it with us tonight. And the american constitution. And after her remarks she and adam white of ai will have a conversation about the subject that will open things up to questions from all of you. Those of you watching online you can find right next to the video you are watching the email address or Twitter Twitter hashtag where you can send questions. And with that, help me too welcome judge neomi rao. The floor is yours. Neomi rao thank you so much you all for that very kind introduction. Its a pleasure spit ai to give to be here at ai to give a lecture that so many remarkable jurists and individuals have given before me. And i ask them to help me find a joke to start off my speech. They came up with nothing. But one of them did try chat gpt and im not sure quite what they put in but maybe something constitutional law joke in the style of judge neomi rao and nothing was funny. So i think ill just start off tonights lecture about pluralism in the constitution. Without a joke. So today, our discourse often focuses on the division in americas political and social life. We hear a lot about polarization , the decline of trust and the breakdown of the institutions. America is one of the most vibrant countries in the world with a long tradition of religious and economic. There are signs everywhere we are less able to appreciate and respect difference. And importantly, less thoughtful about what such diversity requires from our government and our reports. And so on this occasion, on constitution day, i want to recover the relationship between pluralism and our constitutional tradition. By pluralism the inherent differences between individuals religious belief in their chosen work. The framers of our constitution recognized the inevitability of human differences in the pursuit of happyness. It was deeply connected to individual liberty, served as an important principle find the specific form of government established by the constitution. First those who shape our constitution have firm and passionate belief about what was true in religion and politics. They were certainly not relative to this. They recognize others would invariably hold different passionate beliefs. As long as the reason of man continues fallible different opinions will form. Because it is inevitable at the that the American People would hold different opinions, interests and beliefs, the constitution was designed to protect individual liberties and establish processes for representing and negotiating across society. Second, i will discuss the vitality of pluralism in our constitutional tradition and Supreme Court jurisprudence. The court struck down harvards affirmative Action Program holding such Racial Discrimination runs a foul of the equal protection clause. Justice thomas exclaimed a Pluralistic Society equal treatment by the government. Not divisive and arbitrary racial preferences. And finally i will consider healthy have undermined the how they have undermined the constitutional protection for pluralism. Expertise is fundamentally at odds with pluralism. Moving lawmaking out of congress into executive agency has unraveled one of the primary institutions for negotiating our pluralism. Agencies cannot replicate the which intimacy and processes. When private ordering is replaced with public ordering, local control replaced by National Control and replaced by administrative edicts. Those whose ideals are not reflected in the regulatory policy of the day feel marginalized. The penetrating reach of regulation into all manner of activities occurs with little regard for pluralism. When legend legislative is lacking they strain the strength of our constitutional democracy. Restoring the legislative power to congress would help to realign the Administrative State with the original constitution. This would further the rule of law and might also reinvigorate the political process necessary to peacefully accommodate pluralism in our diverse and vibrant nation. The founders acknowledged and accepted the inevitability of human difference and created a constitution that accounted for pluralism by structuring and limiting government in order to protect individual liberty, Property Rights and minority interests. The political philosophers recognized human difference across conscious and economic interests. John locke described and recognized the pluralism across human society. It was a fact that was necessarily assumed. He maintains that although there are principles of law, human consensus was unlikely. Its precisely for this reason individuals must come together and establish a government that can mediate the differences in a peaceful way. Through a legislative process aimed at the general welfare. An inevitable human diversity also requires protection for private property and individual rights. Similar ideas about the social contract and the necessity of law were expressed by montesquieu and hobbes. To be sure whether the founders did always agree about the benefits of pluralism, they recognize diversity inherent in human nature and reflected in our varied interests, beliefs and pursuits. Diversity was particularly manifested in matters of consciousness. The religious of every man must be left to the the religion of every man must be left to the conscience of every man. George washington similarly stressed the conscientious scribbles of all men should be treated with delicacy and tenderness and accommodated. Pluralism was apparent in individual talents and interest. As madison recognizes, there is diversity in the faculties of men for which the rights of property originate. The protection of faculties is the first object of government, from the protection of different faculties acquiring properties, in sued division of society into different interests. The causes of faction are sewn in the nature of man. The primary combination was ultimately structure and political. The constitution begins with article one which invests legislative power in collective congress. A Representative Legislature in which different viewpoints could be expressed, debated ideally harmonized into a legislative solution consummate to the public good. The constitution vests legislative power in a collective congress to create a government that brings together the interests of society and creates laws that further the general good, avoids corruption and protects the rights of individuals. Political theorists and historians have debated whether the founders envisioned the process would identify as objective common good or negotiate different interests. But either way there is widespread recognition that congress was the Central Institution for mediating diverse interests across society. While the legislative power was essential for negotiating pluralism, the constitution established other structural protections for personal liberties. These include federalism and the separation of power. A unitarian executive, an independent judiciary to uphold the rule of law. The structural safeguards are supplemented by the enumeration of specific individual rights such as a freedom of speech and religious exercise as well as protection for private property. Pluralism is a fact of the human condition. The framers did not seek to level out pluralism, rather in the spirit of liberty and pretense, prudence they establish a Constitutional Government designed to secure the welfare and prosperity of a growing in diverse nation. Next i would like to explore the essential connection between individual liberty, Constitutional Rights and pluralism that runs in many of the Supreme Court decisions. Individual liberty and pluralism are in a sense two sides of the same coin. Each person is unique and all men are created equal and endowed by their creator with certain unalienable rights. By upholding the structure of the constitution and enforcing individual rights against the government the judiciary can help maintain a peaceful Pluralist Society that protects each individual life, liberty and pursuit of happiness. A few examples are at the vitality of pluralism in our constitutional tradition in the Supreme Court jurisprudence. The theme of first about frequently runs to the decision upon the First Amendment protection for freedom of speech and religion. As the Supreme Court has said, no official can prescribe what shall be orthodox in politics , nationalism, religion or matters of opinion. They held that colorado could not require website designers to create expressive designs for samesex couples. Justice proclaimed the First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. The constitution required government evenhandedness and tolerance of different viewpoints. The government may speak as it chooses but it cannot dictate the speech and expression of individuals or interfere with the free marketplace of ideas. Freedom of speech is important for unpopular ideas and is as Justice Holmes said, to protect the speech we hates. Maintaining free and open debate further promotes robust democratic deliberation. Pluralism animates many of the Supreme Court religious liberty cases. Free exercise frequently involves the importance of protecting minority religion. While establishment clause for many years promoted secularism rather than religious pluralism. In recent years it has emphasized the government cannot force religion underground or promote policy hostile. In the 2019 American Legion case, the court upheld the peace cross that was part of it world war i memorial. As Justice Alito explained, the religion clause of the constitution aims to foster a society in which people of all beliefs can live together harmoniously. From a somewhat different perspective justice kagans concurrence emphasized pluralism in the values of neutrality and inclusion that the First Amendment demands. The 14th amendment extends the constitutional commitment to pluralism that was promised but not fully realized in the original constitution. The equal protection clause protects pluralism by prohibiting government discrimination and prohibiting between citizens. Supreme Court Decisions in this area have historically been somewhat mixed. But last term students admissions versus harvard as chief Justice Roberts explains equal protection call prohibits equal protection clause prohibits discrimination on the basis of race and eliminating Racial Discrimination means eliminating all of it. In his concurrence Justice Thomas explicitly linked equal protection of the law to pluralism. He noted our constitution protects individuals not racial groups or classes. The declaration of independence set forth our National Creed that all men are created equal and therefore it must be treated equally by the government. Affirmative action he said was simply naked racism that promoted a factionalism based on ever shifting sand of skin color and racial category. Justice thomas continues rather than forming a more Pluralistic Society that strips us of our individuality and undermines the very diversity of thought that universities purport to seek. By upholding the equal protection of the laws the Court Protects the rights of individuals. And it prevents a factionalism that results in the government divides its citizens distribute to benefits and burdens on the basis of growth. The constitution structural protections, federalism and separation of power are linked to individual rights and accommodating what madison calls a Great Variety of interests and parties across our republic. As the court said, the federal structure allows policies more sensitive to the diverse needs of a heterogenous society. It permits innovation and experimentation, enables greater citizen involvement and makes government more responsive by putting states in competition. In a Pluralist Society federalism provides more opportunities for representative politics and for important issues to be worked out in local communities. In dobbs versus Jackson Health organization, the Supreme Court recognized americans held a wide range of viewpoints about the morality of abortion inappropriate scope of regulation. In overturning roe v. Wade, they explained the constitution was silent on matters of abortion. He emphasized it is time to heed the constitution and return the issue of abortion to elected representatives. The permissibility of abortion and limitations should be resolved like most questions in democracy, by citizens trying to persuade one another and voting. That is what the constitution and rule of law demands. To the proper exercise of judicial review article three courts help preserve a vibrant pluralism by upholding Constitutional Rights and maintaining the structural limits on federal government. The Supreme Court however has failed to uphold the structure of the constitution with respect to perhaps the most essential protection for pluralism. The vesting of legislative power in congress. Congress provides a mechanism for imparting our inevitable disputes resolved like that the lawmaking process of bicameralism improvement in us. Representation of different interests promote deliberation and identification of policies that serve general welfare. The legislative process in congress is not perfect, but it is legitimate, representative and accountable in a way that lawmaking can never be. This brings me to the modern Administrative State. My final points about the ways in which the Administrative State threatens the peaceful pluralism protected by the constitution. To begin with the progressive ideology behind the expansive Administrative State is at odds with pluralism. The original progressives with the modern Administrative State woodrow wilson, frank and others, they began with experts who could find the right answers to social and economic problems. Having found the right answers, experts should impose them on the American People. The progressives did not concern themselves with individuals and the inherent differences between individuals that are part of the human condition. Instead they emphasize social problems and reaching the best social policy and organization. The original progressives advocated for sidelining the unscientific legislative process and weakening judicial review. For administration to succeed americans would have to move beyond the constitution archaic protections for individual liberty and private property. In short, the zeitgeist is at odds with pluralism and the protection of liberties. It cannot accommodate diverse interests, opinions, religious beliefs and economic pursuits. The founders emphasize fallibility and individual liberty. The progressive by contrast press for science, certainty and government control. The threats are more than theoretical. In ministry of states constitutional problems will be familiar with this audience. My focus is on how constitutional problems exacerbate polarization and factionalism. Reaching into every facet of social and economic endeavor, the modern state has unraveled the constitutions protection for peaceful pluralism. At the most fundamental level the Administrative State has shifted policymaking from congress to the executive branch. In practice legislative power is exercised by administrative agencies. Why is this a problem . There are many reasons. One of