Supervision of democracy because majority rule is the essence of the american project. There are, however, two things wrong with this formulation. First, it is utterly unrealistic and simple minded to think that there is a majority support for or majority interest in or even majority awareness of even a tiny fraction of what modern governments do in dishing out advantages to economic factions. Does anyone really think that when the nashville City Government dispenses favors for the taxi and limo cartels, it is acting on a will of the majority of the citys residents . Can anyone actually believe that a majority of louisianans give a tinkers dam about who sells caskets or arranges flowers . We know because he said so clearly and often that lincoln took his political bearings from the declaration of independence. Which brings me back again to 1854 to the kansas nebraska act and to lincolns noble recoil from the idea of popular sovereignty in the territories regarding slavery. That recoil propelled lincoln from semiretirement from politics and into a debate that still reverberates. Lincolns recoil against the idea of untrammeled majorities produced the most luminous public life in our history and i believe world history. For many years and for several years, many of my fellow conservatives have unreflectively and imprudently celebrated judicial restraint. For many years, i, too, was guilty of this. The reasons for this include an understandable disapproval of some of the more free reeling unconstitutional rulings of the court and law schools that train future judges and law reviews that influence current judges are on balance and not balanced. They give short shrift to conservatism. It is high time for conservatives to rethink what they should believe about the role of courts in the american regime. Another reason many conservatisms favor restraint is what is called the conservative populist temptation. Conservatives are hardly immune to the temptation to pander and preach that the things legislators do are right because they reflect the will of the virtuous majority. However, the essential drama of democracy derives from the inherent tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority deems necessary and proper. Natural rights are affirmed by the declaration of independence. Majority rule is constructed by the constitution. Timothy sanderford in his book rightly emphasizes that the declaration is not just chronologically prior to the constitution, its logically prior. Because it sets the framework for reading the constitution, it is the constitutions conscience. By the terms by which the declaration articulates the constitutions purpose, the purpose is to secure unalienable and natural rights. The declaration intimates standards by which to distinguish the proper from improper exercises of majority rule. Freedom, writes sanderford, is the starting point of politics. Liberty is the goal at which democracy aims. Not the other way around. The progressive project, now entering its second century, has been to reverse this by giving majority rule priority over liberty when the two conflict as they inevitably and frequently do. This reflects progressive belief that rights are the result of government and that they are spaces of privacy that government has chosen to carve out and protect. If the sole or overriding goal of the constitution can be reduced to establishing democracy, and if the distilled essence in whatever sphere of life where majorities wish to rule, then the court is indeed a deviant institution. But such a reductionist understanding of american constitutionalism is passing strange. It is excessive to say as often has been said that the constitution is undemocratic or antidemocratic or antimajoritarian. It is not, however, too much to say that the constitution regards majority rule as but one component in a system of liberty. The principle of judicial restraint distilled to its essence frequently as principle that an act of government should be presumed constitutional and that the party disputing the acts constitution bears the heavy burden of demonstrating the acts unconstitutionality beyond a reasonable doubt. The contrary principle that i will call judicial engagement is that the judiciarys principle duty is the defense of liberty and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the constitutions architecture, the purpose of which is to protect liberty. The federal government can dispatch this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power. A state or local government can dispatch the burden by demonstrating that its act is within the constitutionally prescribed limits of its police power. Judge don willett of the Texas Supreme Court has addressed and largely dissolved the supposed countermajoritarian difficulty. There are, he says, two different but not equal majorities involved. He begins as judicial review began in 1803 with marbury v. Madison in which Justice Marshall wrote, the powers of the legislature are defined and limited and that those limits may not be mistaken or forgotten the constitution is written. In distinguishing between proper judicial deference to legislative majorities and dereliction of the judicial duty to police majoritarian excesses, willett says, in our democracy the legislatures policy making power though unrivaled is not unlimited. The constitution is supreme and desirable is not a synonym for constitutional. Although the political branches decide if laws pass, it is for courts to decide that laws pass muster. So if judicial review means anything, it is that judicial restraint does not allow everything. To avoid a constitutional Tipping Point where adjudication more resembles abdication, courts must not extinguish constitutional liberties with nonchalance. This requires fidelity to the supermajority against with other majorities must be measured. The supermajority of those who wrote and ratified the constitution, there must, Justice Willett writes in a texas case, remain judicially enforceable constraints of legislative actions that are irreconcilable with constitutional commands. Why must . Because, says willett, the Texas Constitution like the u. S. Constitution is irrefutably framed in prescription. It declares an emphatic no to myriad government undertakings even if majorities desire them. Judicial review means preventing any contemporary majority from overturning yesterdays supermajority that wrote and ratified the constitution. Federal judges are accountable to no current constituency but when construing the constitution, todays judges are duty bound to be faithful to the constituency of those that framed and ratified it. This, says willett, is the profound difference between an improperly activist judge and a properly engaged judge. The former creates writes that are neither specified in nor implied by the constitution. The latter defends rights the framers actually placed there and prevents the elected branches from usurping the judiciarys duty to declare what the constitution means and implies. It is not true that as dr. Stockman declares in henry gibsons play, the enemy of the people the majority is always wrong. It is true, that the majority often is wrong and that the majority even when wrong, often has a right to work its will anyway. Often but not always. The challenge is to determine the borders of the majoritys right to have its way and to have those borders policed by a nonmajoritarian institution, the judiciary. So to the question about how lincoln has influenced my life, my answer is this. By his noble rejection of the kansas nebraska act and the idea of popular sovereignty as the way to decide the question of slavery in the territories, lincoln concentrated my mind on two timeless truths. One, is that majority rule is inevitable but not inevitably reasonable. The other is that moral reasoning properly done and the constitution properly construed both affirm that many things should be beyond the reach of majorities. Thank you very much. [ applause ] terrific. Very deep and thoughtful. [ applause ] that was terrific. It was provocative. Thoughtful. And i have a lot of questions myself. Im not going to ask them. Im going to open the floor to you all to do that. Before i do, i want to give mr. Will just a token of our appreciation. A reminder that hes always welcome to come back home and see us any time. Thank you. One more hand for him. Thank you very much. [ applause ] that concludes mr. Wills formal presentation. In a moment well open the mike to a few questions. We dont have a ton of time. We have ten minutes or so for people to ask him appropriate questions and hes been gracious enough to answer a few. If you want to ask one, please come up to the mike here on my right side. Could they bring up the house lights so we can see. Is there a way that we can bring up the house lights . Let there be light. I answered every question. Let me throw one out then for him. Here comes lady. Better still. I collect famous legal footnotes and you made reference to one and i lost track of where it came from. Footnote 4. Where the Supreme Court i should be here. Where the Supreme Court without justification and text history or logic of the constitution decided that it would now have a hierarchy of rights. There would be some that were declared fundamental and others declared inferior. That the court would make that distinction and then invariably has it turns out economic liberty, the liberty for which we fought the civil war, would be an inferior and not a fundamental right. Good evening, mr. Will. My name is paul. Im a secondyear student at college of law and long admired your work. My question to you is about the passing of Justice Scalia and particularly i found provocative your talk of the movement especially in american conservative legal minds for judicial restraint and deference to popular majority legislature. As conservatives move away from this being that it is a progressive thought, who especially in the light of passing of Justice Scalia embodies a jurist thought . Thats a good question. Im wearing my Federalist Society necktie tonight founded in 1982. I assume theres a chapter at the university of illinois. Scalia was a very important mentor of this. Justice scalia and i i knew him before he was on the Supreme Court. Known him a long time. We had a robust disagreement that when president s overstepped their bounds, its not the judiciarys duty to jerk the leash of the executive branch. His answer was impeach the president. I told him i thought that was awkward. And unrealistic. Anyway, closest on the Supreme Court in my view to these things is Clarence Thomas who has a healthy disregard or at least refusal to genuflect. If its wrong, get rid of it he would relitigate the slaughterhouse cases. My son is secondyear lawsuit at the university of virginia and i told him his lifes work is to get rid of rationale basis test and relitigate the slaughterhouse cases. Justice willett of the Texas Supreme Court, clint bolick appointed a few weeks ago from the Goldwater Institute to the arizona Supreme Court, they all understand this. Were gaining on the rascals. Do you want to make your way to the mike . I can just speak loudly. [ inaudible question ] [ applause ] i can tell you the latter in about two hours. I can understand why numerous people in our society are sad, angry, uncertain. For white males without college educations, they havent had a raise for 40 years. Economic stagnation, a sense that life is passing them by, a sense that the system is indeed rigged as in my judgment gig government is always rigged in favor of the strong, the articulate and the well lawyered. I understand this. What i do not understand is this man as a vessel for those anxieties. Hes an anticonstitutional authoritarian. Hes in every instinct prepared to double down on what i consider the most disagreeable feature of the obama years which is his executive overreach. And as i said in a recent column, the breath and depth of his ignorance is the eighth wonder of the world. To take one example, his sister is a federal judge. In defending her, not that anyone attacked her, but in defending her in the houston debate last thursday, trump said why shes so conservative, she signed a bill that Justice Alito of the Supreme Court also signed. This man who proposes to head the executive branch of our government believes that judges and justices sign bills. Hes the first who would flunk an eighth grade civics exam. Its astonishing. Its going to be a long time putting him back in his cage. Time for one more . One more. Yes, sir. Mr. Will, im a firstyear law student. My question since this is about lincoln, do you have a favorite quote of lincolns that you could share with us tonight . Favorite quote of lincolns . Well, so many lincoln stories, im not quite sure of their providence but lincoln said, if i call a tail a leg, how many legs does a dog have . Five . No, four, because calling a tail a leg doesnt make it a leg. Words to live by. Thank you. [ applause ] thank you all so much for being here. I wish you all a good night. Cspan3s American History tv is in prime time during the democratic convention. Tonights programs are about Abraham Lincoln. Starting at 8 00 p. M. Eastern, a look at his action with immigrants as a lawyer and later as president and bob woodward reflects on Abraham Lincolns legacy and how it affects his successors including richard nixon, Ronald Reagan and barack obama. And later, columnist george will reflects on president lincolns view of judicial review and the constitution. All of this coming up tonight on American History tv on cspan3. Tonight, Hillary Clinton becomes the first woman to accept a Major Political partys nomination for president of the united states. And with cspan, you have many Convenient Options for watching the entire speech without any interruptions. Watch her historic acceptance speech live on cspan. Listen to it on the cspan radio app. Watch it live or on demand on your desktop, tablet or smartphone. Hillary clintons historic speech tonight on cspan, cspan radio app and cspan. Org. Up next on American History tv, historian jason h. Silverman talks about his book lincoln and the immigrant describing lincolns interaction with immigrants. He concludes these encounters boosted americas economy. The event is about an hour. And now for our speaker this evening. Jason h. Silverman is the professor of history at winthrop university. Prior to that he taught at Yale University for four years. Author or editor of 11 books, several of which nominated for National Book awards, his recent work lincoln and the immigrant is a volume in the series published by Southern IllinoisUniversity Press and was released in september. Of the 16,500 and counting volumes published on Abraham Lincoln, this is the first full length study of its kind. Dr. Silverman received his undergraduate degree at the university of virginia and his graduate degree at Colorado State and the university of kentucky. He has received many distinguished teaching awards. Currently working on a companion volume detailing president lincolns reputation in 19th century europe. He also served two elected terms on his local school board. So lets welcome professor jason silverman. [ applause ] thank you so much. That last part about the eight years on the Rockhill School board, forget about all my education. Thats when i learned the real meaning of civil war. I have a been interested in Abraham Lincoln since the fourth grade. We had a parents night which we were going to do silent vignettes. A signing of the declaration of independence, all sorts of things. One of the silent vignettes was Lincoln Douglas debates and my fourth grade teacher told me you cant be Abraham Lincoln, youre not tall enough. To add insult to injury, she said, you have to be Steven Douglas. So i swore by all that was sacred that i was going to study Abraham Lincoln for the rest of my life and try to make a contribution. Now, i grew up right across the river in alexandria, virginia. Im a product of the virginia Public Schools and i can tell you that very little about Abraham Lincoln was said flatteringly in the state of virginia as i was growing up. But those comments were glowing compared to what i encountered when i first came to South Carolina in 1984. So one of my proudest accomplishments is the fact that for 32 years now, i just finished my 32nd year, ive been teaching courses to packed classrooms on Abraham Lincoln in the state of South Carolina, which i dont think is a small accomplishment whatsoever. [ applause ] so im going to tell you what i tell my students before each class. Come back with me in history. Fasten your seatbelts. Were going to take a Magic Carpet Ride tonight through the study of Abraham Lincoln and his relationship with immigrants. May 4th, 1865, oakridge cemetery, springfield, illinois. The weather is warm and the sun is peeking through the clouds. The day is peaceful and a slight wind