Judge on considering the idea in constitutional law from the founding to the present rate this event was hosted by the American Enterprise institute. Hi everybody thank you for being here and for helping us. Rembert 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 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. As 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 requires the 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 hashtag where you can send questions. And with that help me too welcome judge neomi rao. The floor is yours. Thank you so much you all for that very kind introduction. Its a pleasure spit ai to give a lecture 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 check gpt 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 tonight lecture about pluralism in the constitution. Without a joke. So today often focuses on the division in americas political and social life. We hear a lot about polarization the decline of trust and the ine breakdown of the institution. 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 it 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 recognize the inevitability of human differences in the pursuit of happyness. Was deeply connected to individual liberty served as an important principle find the specific form of government established by the constitution. Tonight out to elaborate on the theme. 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. For instance meta sent medicine recognizeas long as thn continues fallible different opinions will form. Because it is inevitable at the American People hold different opinions, interests and beliefs the constitution was designed to protect individual liberties and establish processing for representing and negotiating the very interest across society. Second ill discuss the vitality of pluralism in our constitutional tradition and any Supreme Court jurisprudence. Just as pastor and 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 constitutional protection for pluralism. The original expertise is fundamentally at odds. Moreover moving lawmaking out of congress into executive agency has unraveled one of the primary institutions for negotiating our pluralism. Agencies cannot replicate the legitimacy them processes. Private ordering is replaced with public ordering, local control replaced by National Control and replaced by administrative edicts. Those ideals are not reflected in the regulatory policy of the day and feel marginalized. The penchant breach of regulation to all manner of social, religious and Economic Activity often occurs for little regard to pluralism. This process may intensify polarization and the strength enterprise of our constitutional democracy. Restoring the legislative power to congress would help to realign the Administrative State with the original constitution. I would further the rule of law might also reinvigorate the political process necessary to peacefully accommodate pluralism and our diverse and vibrant nation. So let me begin with the founders understanding of pluralism. The founders acknowledged except the inevitability of human difference and created constitution that accounted for pluralism by structuring and limiting government in order to protect individual liberty, Property Rights and minority interest. Political influence her on the framers recognized the inevitability of human difference across matters of conscious and economic interests. For instance jon claude described in recognize the deep pluralism within and across human society. It was a fact he said was necessarily assumed. He maintains although there are objective to law human consensus on moral and legal matters was unlikely. Its precisely for this reason individuals must come together and establish a government that cant 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 contrasts the necessity of law to name just a few. To be short whether the finders are they relied upon are relative to this they did not always agree about the benefits of pluralism. Yet they recognize diversity inherent in human nature and reflected in our varied interests and beliefs and pursuits. The diversity was particulate manifested and matters of conscious requires a free exercise of original. Its medicine emphasize the religion of every man spieth left to the conviction and conscience of every man because its the right of every man to exercise it is god may dictate. George washington similarly stressed the conscientious scruples of all men should be treated with great delicacy and tenderness and extensively accommodated. Pluralism is apparent in individual talents and interests. As medicine recognize and federalist tethers diversity in the faculties of men for which the rights to property originate. The protection of the faculties is a first object of government from the protection of different unequal faculties acquiring properties the division of society into different interests. I was sewn in the nature of man. The primary combination was ultimately structure and political. The constitution begins with article one which alt alllegislative power and a collective congress. A Representative Legislature in which different viewpoints could be expressed, debated ideally harmonized into a legislative solution competent to the public good. As i have also asked by the constitution legislative power and a collective congress in order to group to create a government that brings together all the desperate interests of society create laws that further the general good, avoid corruption, protect the rights of individuals. Medical theorists in history have long debated where the founders and division the legislative process would identify an objective comment good. Or simply 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 liberty and prudence they establish a Constitutional Government designed to secure the welfare and prosperity of a group blowing and diverse nation. Next i would like to explore the essential connection between individual liberty Constitutional Rights and pluralism that runs for 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. I pulled in 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 dems 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. At the Supreme Court has said no official can prescribe what shall be orthodox in politics nationalism religion or other matters. This passive term created the courthouse at colorado could not require website designers to create expressive designs for samesex couples. Justice proclaimed the First Amendment envisions the United States is it rich and complex place all persons are free to think and speak as they wish that as the government demands. The constitution required government evenhandedness and intolerance 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 Justice Holmes said to protect the speech we hates it. 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. For example the chest 19 American Legion case the court upheld the peace cross that was part of it world war i memorial. This just exclaimed that because of the constitution into Foster Society in which people of all beliefs can live together harmoniously. From a somewhat different perspective justice kagans concurrence the pluralism and the values of futrell the neutralityinclusion the first at demands. The 14th amendment extends the constitutional commitment to pluralism that was promised but not fully realized in the original constitution. The 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 prohibitss discrimination on the basis. 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 posting 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 protection federalism the separation of powers are also inextricably linked to individual rights and accommodated what madison calls a Great Variety of interested parties across our republic. As said the federal structure allows policies more sensitive to the diverse needs of a heterogeneous society. Permits innovation and experimentation, enables greater citizen involvement with more responsive mason sitters rate the freedom of the individual. In a Pluralist Society federalism provides more society federalism provides more opportunities for representative politics and for important issues in the local communities. And dobbs versus Jackson Health organization americans held a wide range of viewpoints about the morality of abortion the appropriate scope of abortion regulation. In overturning roe versus wade the constitution was silent on matters of abortion. He emphasized time to heed the constitution return issue of abortion to the peoples elected representative. The permissibility of abortion the limitations upon it are should be resolved like most important questions in our democracy by citizens trying to persuade one another and then voting. That is with the constitution and the 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 haps the most essential protection for pluralism. Namely the vesting about of alllegislative power in cong. Congress provides a mechanism for imparting our inevitable disputes resolved like that the lawmaking process of bicameralism improvement in us. Representation of different interest to the house and senate promote deliberation and ultimately the identification of policy that will serve the general welfare. The legislative process and congress is not perfect. But it is fundamentally legitimate, representative and accountable executive lawmaking can never be. And so this brings me to the modern Administrative State. My final points about the particular 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 Administrative State woodrow wilson, frank and others they began with experts could find the right answer to social and economic problems and having found the right answers experts could and 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 condition. Instead they emphasize social problems and reaching the best social policy and organization. The original progressives can advocated for sidelining the messy and unscientific legislative process and weakening judicial review. For administration to succeed americans would have to move beyond the constitution archaic perceptions for individual liberty and private property. In short fundamentally at odds with the puller looks of the protection of individual liberty. It cannot accommodate diverse interests and opinions religious beliefs and economic pursuits. The founders emphasize emphasizedlegislation cell abilt individual liberty. The progressive by contrast press for science, certainty and government control. The threats are more than theoretical. The Administrative State constitutional problems will be familiar to this audience. So my focus today is on how the constitutional problems exacerbate polarization and factionalism. Reaching into every facet of social and economic did endeavor the modern ministry of state hasnt traveled the constitution structural protection for peaceful pluralism. At the most fundamental level the Admin