We want to thank Bryan Jackson for arranging this good weather. He caused it to rain last weekend, so that we are back to perfect California weather once again and all weekend. We must also thank Pepperdine for that. They again do things right here and so so many other things. We want to recognize specifically Dean Kenneth Starr, if he is here, I am not sure. He will be our first speaker, I believe. Certainly Gary Hanson who is the Executive Vice President, acting for President Andy Benton is here. Maybe you have some remarks prepared Gary that could help. We appreciate them and their staffs. The alumni at Pepperdine, the alumni staffs and the the Dean's office have just been extraordinary and I must mention four people, Margaret Barfield heads up the staff, Lorraine Grossman, Patty Hayes and Stacy Taylor. Are any of you here, raise your hands if you are here. They are working. They are doing a good work. This is our second annual attorney law student conference and it follows the great success that we had last year in Washington DC and at the Georgetown Law Center. If you want to hear where our conference is next year, you'll have to come back to this room tomorrow morning and Liz Jackson will tell you. She is the conference chair, the student conference chair. Seated on the stand are some persons who have made this conference possible and raise your hands when I mention your names. First only after Pepperdine is the Law School of BYU, J. Reuben Clark Law School is extraordinary in every way and Dean Kevin Worthen is here and the Associate Deans Scott Cameron and Mary Hoagland also. Although our society members come from many, many law schools around the world BYU does host and support us in every possible way. Other members of the J.Reuben Clark Law Society Executive Board around the stand and that's Brent Belnap who is the chair-elect for the society and past chairs Lu Kramer and Bill Atkin, where is Bill?. Bill tends to hide sometimes. Now the conference chairs that I have already mentioned Bryan Jackson and Liz Jackson, they are not related even though they have the same last name and the head of hair. Love that red hair, that's been a theme throughout this conference. Bryan in fact, said if you don't have red hair, you don't really matter. Roaming the hall somewhere is Doug Bush who is the head of our conference committee for the society and we appreciate all that Doug has done. Also Richard Peterson has been our liaison on the board with Pepperdine a member of the faculty and has worked tirelessly. In fact, Adam Ravitch where is Adam? Adam was to be up here with us. These five people have given their lives to this conference. Adam, Liz, Bryan and Doug and we appreciate all that they have done. So lets have a - lets have an applause. They worked with a planning committee that has been second to none and an arming of - army of willing workers that could have done the the Normandy invasion, and they put this conference together. In fact if we are ever if I am ever in battle I would like to be with these folks and their leaders. I would like all of them to stand, everyone that's been on any of the planning committees for this conference, please stand up. Oh, John they are lot more than one or two. Finally I must mention a group for for whom we owe great debt, they have been most generous and supportive and that's our sponsors. There are many levels of sponsorship, we especially appreciate and recognize those whose names are in the program. I have given my program away but they have some of them have tables just outside here with information about them, Merrill Lynch and Fragomen and some of the other sponsors we invite you to also visit the J.Reuben Clark Law Society table upstairs where you checked in, there you will - you will find membership brochures and for sale is the new paperback version of Life and the Law. Our sessions are being recorded by Fora TV, I believe with would they raise their hand if they are here, there we are clear straight back. Fora is a new organization in partnership with C-SPAN. That's a new organization that's dedicated to covering the most notable events that make news around the world. Fora will make these sessions available on our website for the Law Society and also through our lending library. And we are really grateful that they could be here to do this, both here and out at the Reagan Resident Presidential Library tonight. Well, what is it that makes this conference so notable that C SPAN would cover. First, our speakers. There is a dazzling array of extraordinary speakers. Federal judges, law professors, six of them from Pepperdine and most of them are here. Deans two deans of law schools and church and general authorities, authorities on the Supreme Court and the United Nations, a U.S. senator will be joining us tonight by the way his assistant called me on the way in my car yesterday to say that there is an emergency vote that was called tomorrow morning at 10:00 am and he must be there, but he has prepared the best talk he has ever prepared and he will come, give the talk tonight and then catch a red eye. So don't miss Senator Smith at the Reagan Library. We have a former governor and some very distinguish panelists, so we thank all of the speakers who have made this conference so outstanding. The size alone is notable also. This is the largest gathering in one place that our society has ever had and it maybe one of the largest here at the law school. What unites all of us, I think, is our mission statement in which we enthusiastically subscribe and I hope we we know it by heart. We affirm the strength brought to the law by our lawyers, personal religious conviction. We strive through public service and professional excellence to promote fairness and virtue founded upon the rule of law. Those 32 words define who we are and what we strive to achieve. This conference will try to them consider the ways and means of achieving that inspired mission. We plan here today and tomorrow to grapple with many of the issues that we face as lawyers and persons of faith in today's increasingly hostile world. We believe that our law society has a divine destiny. We believe that we are not lawyers by accident. That we were sent here, at this time, in this place with a purpose to help make this world a better place. And that we have been ordained by God to do that. I personally believe that this university in this place and this law school have a manifest destiny. The first Pepperdine Chancellor Norvel Young used to have in saying about Malibu, Pepperdine at Malibu. He said that was this place is sun kissed, ocean washed and heaven blessed and I concur. In 1970 I was able to help the University acquire the first piece of land here and then later that same year we obtained the permits and ground was broken to develop the undergraduate campus. Two years later exactly the first week in September of 1972 Seaver College opened for business just days before the monumental Supreme Court decision Friends of Mammoth. That would have required an environmental impact report for this entire project. And you could imagine what that would do in environmentally sensitive place like Malibu. They are really I know some of you from Southern California Northern California might dispute this, but I don't think there is a more sensitive environmental minded place than Malibu. Exactly to the day, 60 days after the campus opened in the November 1972 election the citizens in the State of California voted for the California Coastal Zone Conservation Act, which also would overlay the campus and would have been then subject to regulation by the Coastal Commission. Now even more dramatic than these fortuitous events was the amazing failure of an attempted appeal from the Regional Coastal Commission issuance of a coastal permit for this building, the fine arts building, the administration building, faculty housing and most critical of all a new self-contained sewage disposal system. Now if you are not familiar with Malibu that's how that's one way that growth is regulated in Malibu. They are no central sewage systems. Everyone has septic tanks or other things. All of this was wrapped together as one big project and was was so controversial that literally bus loads of our closest neighbors came down to the hearing hall, it was a Twin City chambers on that day, June 13th 1977. This project was the only subject of the hearing and it went all day. But at the end of the day, the permit was issued by a ten to one vote. Now the opponents had exactly 10 working days to appeal the project. And until 5 pm, the regulations were very clear it must be there by 5 pm. On that very last day, I called the Coastal Commission just before 5:00, it was about five minutes to 5:00, then I was informed that both the telegram and a telephone call had come and been received from the opposition. But that neither was adequate under their existing regulations. The next day I called back and learned that at 5:15, at the previous day, a completed and proper PO had arrived on the prescribed form but was declared untimely and therefore void. Immediately because of our project those rules were changed and substantial compliance would have sufficed. If that appeal had been allowed, not only would it have put a stop to the facilities that I mentioned but a bond issue, a very critical California Educational Facilities Act, bond issue CEFA, the very next month would not have issued and the campus likely would have closed. At least there would have been major postponement of any new construction including this law school. Now there are just so many coincidences wrapped together and things of this kind, and this isn't all, this is just for my own personal experience. Tom Boston is here you could add to that and others who - who lived through those early days at Pepperdine. But I am convinced that there is divine destiny that attends this place. I believe the Pepperdine faculty, administrators and staffs, they know about these things. They believe that the students do and I just thought you might want to know some reasons why I feel that same way. Our program today will proceed as follows. Our implication will be offered by our Conference Chair, Brian Jackson, he doesn't know that but we appreciate it Brian and then, Gary Hanson who is - who for 25 years was General Counsel at Pepperdine, dear friend of ours and is now the Executive Vice-President. He will introduce our first speaker, Dean Starr or Gary will elaborate with his own remarks. Following that, the first panel will be under the direction of Rob O'Brien. Robert has been the head of our speaker's committee and he has been recently a delegate to the United Nations from the United States. And so, he will introduce the first panel on the Church and the United Nations. After that, we will take a 10 minute break and then reconvene here sharply at 10:30 and please do come. Because at 10:30, there will be a - a panel presided by Robert Cochran of Pepperdine Cole Durham and others who will discuss issues of law and religion both here and around the world. They will stop at 11:30 sharp; we'll break for lunch and please keep the lines moving and eat quickly. Come back here at 12:30 because the church's general council and Elder Lance B. Wickman who will then speak to us in a way you haven't heard before I suspect. You've heard his marvelously well prepared classic masterpiece on the In Search of Atticus Finch at last years worldwide satellite broadcast. But he will also be willing to talk about some of the current legal issues that church is facing and take some questions. So bring some good ones. That will be at - at 11:30 till 12:30 right here and - and then after lunch and Elder Wickman - you will have to put choices several panels that are in your program and the rules have not being announced but we will do so at that time, may be we do it. Okay, in - in your folders, in - in these folders there should be a map with the program that will show you where those panels are being held. Then finally at 3:30 - oh, I need to tell you that - that Sister Chieko Okazaki who is - who is marvelous, any of who have heard her would travel continents to come back and hear her again. Don't miss her, call your spouses, tell them to be sure and come at 2:30 to hear Sister Okazaki. She will then fly from here to Seattle for another conference. But after her remarks I won't plan to say this again but at 3:30, we'll ask you to dismiss from your sessions and I also should note the several - the leaders from Utah from the World Trade Centre are here partly because of Pepperdine's renowned alterative dispute resolution program and they - they are considering the establishment of an arbitration center in Utah. So any who are interested in - in meeting informally with them for a few minutes will have that room to announce - yeah, that's room B, where one of the seminars has been held. So then the rest of you - we would invite you to drive directly out to the Regan Presidential Library. You can spend several days there you can spend the whole day but we'll only have a couple of hours. If so you leave immediately, you be there Friday afternoon rush. And there will be the library, there will be the museum, but most significantly Airforce-1, a real bottle - at such a bottleneck - I don't know that we can get everybody through. But the sooner you can get there to go through Airforce-1 the better. And of course then dinner will follow after that. If you have any questions about directions, I think it's all in the folder but if you need to know more either Liz or Brian will answer your questions. Thank you again for being here and then Brian will ask you to offer the prayer. Our Dear Heavenly Father, we are indeed blessed with this beautiful day. We are so thankful that you shared with us this beautiful place where we could convene and hear from many great speakers who have worked hard to be here. We are thankful for their sacrifice for our benefit and we ask for Thy blessing and Thy spirit might rest with them, that they might be able to speak from their heart and from their mind and to edify us all. And my Father, we are so thankful for the weather that Thou has provided, while the rest of the nation is gripped in horrible winter weather that we are enjoying such bounty. We are thankful for those who had traveled from far and wide that have come here safely and we ask Thy blessing up on them as they travel throughout this conference weekend for the - those difficulty on the roads for many of the - are not used to this highway travel and that they might be blessed in that regard. We are also thankful for Pepperdine University Heavenly Father who has hosted us so graciously to open their facilities and their hearts to us and for all the students who have worked so hard and tirelessly to put on this conference and the attorneys and their conference committees. We ask Thy blessing also up on the many members of our families who are at home who missed our presence but know that we are here to benefit and to strengthen and to comeback more resolved to be better citizens, better lawyers and better family members. Finally, Heavenly Father, we ask Thy blessing upon all those who are present and that Kenneth Starr might have Thy blessing as he has sacrificed much to be with us, as our next speaker. And we'll say these things humbly in the name of Jesus Christ, Amen. Well, good morning and welcome to Pepperdine University. We - as - as Joe walked you through a little bit of the miracle at Malabo I couldn't help thinking about all the different people in this room who have really contributed to the success and development of this University. Certainly, Joe who walked us through many-many real-estate and related challenges over the years, (Boyd Black) who walked us through many tax and nonprofit related issues. Of course we worked over the years with Jean Brain Hill and Tom Griffith before he went to DC out of BYU on a variety of issues. And - and even a - a former member of the society, Whitney Clayton who - who worked with us for many years before being appointed as the general authority in LDS Church. And so, I just couldn't help to think what a pleasure it's been to work with so many who represented this Law Society so very - very well as - as people of integrity. And - and so, Joe asked me to do two things this morning, one, to bring a welcome from Pepperdine and two, to introduce your morning keynote speaker. So as the introduction to Pepperdine I want to leave you with two folks. The first is from George Pepperdine who really was a Horatio Alger story. A man of humble means, who started with $5 and parlayed that into a fortune and then he turned around and he gave it away to start a Christian College called Pepperdine University. And in his dedicatory address, George Pepperdine said that there are many - many excellent colleges and universities in this country but if in establishing Pepperdine we don't do something more than impart academic knowledge and information then there is really no reason for us to exist. And so those us who have been here for a few years have tried to take that and incorporate that into our mission which says that we are dedicated to the highest standards of academic excellence on one hand and Christian values on the other hand. And hopefully in that process we mell those two vitally important items to strengthen students for lives of purpose and service and leadership. And so I just wanted to leave you with that much about Pepperdine University really as a word of encouragement because in know that that's very similar to the mission of this law society. And I want you to know that there are partners out there that, that are trying to do great things that are trying to do noble things and then share your interests in a common commitment to religious standards. And so that's the first quote. The second quote is from the great philosopher Will Durant who taught at Pepperdine many years ago and when he left he left a note for the president and that note said, "Oh to be young again and to study Christ and Plato. In these halls and on these hills and under these beautiful Malibu skies and so my hope is and, by the way, we only have two kinds of weather in Malibu beautiful and unusual. And so I am glad have some beautiful weather for you today. But I hope too that as you are here these two days, that in a sense you will feel young again, as students, with an outstanding program before you, as you learn and as you are edified and inspired by this program. And so welcome to Pepperdine University. My second task is an easy one and that is the introduction of Ken Starr. Ken has a long and distinguished legal resume and I could spend a long time walking you through that. Certainly in service that Gibson, Dunn & Crutcher and of course, at Kirkland & Ellis service on the Appellate Court in the DC circuit. He was Whitewater special prosecutor which, I believe, shows the true depth of his commitment to public service in a very difficult assignment and then of course, Solicitor General of the United States where in addition to the variety of duties of Solicitor General he argued many cases before the United States Supreme court and continues to do so today even as he serves the role of Dean of this law School. But for this group I thought I would add a little bit to that resume and to say that Ken is also a man of deep and sincere faith. He is a man devoted to his wife, dedicated to his children. He is what every law school in this country should hope for in a Dean. A man of leadership, a man of faith, a man of integrity and a man of vision with a servant's heart. And so for a society whose tenants are religious conviction, public service and professional excellence you could not have picked a finer key note speaker this morning. Please join me in welcoming to the podium Dean Kenneth W. Starr. Well I like that description Tom of Malibu weather. I got to remember that, but we were praying for rain, we do need some unusual weather but I am delighted for your sake that it is another beautiful day here in Malibu but very importantly at this special place. We really do take pride non-vaingloriously in being a welcoming community. We all set and fall short of the glory of Gods. So if we fall short in any respect let us know but I am holding a copy of one my favorite books, it was written very recently by our wonderful Provost Darryl Tippens and the name of the book is Pilgrim Heart and he has his marvelous chapter on welcoming, opening doors to strangers. Well you all don't look like strangers to me. If I am welcome we are delighted that you are here. So Hardy let me second to Gary Hansons word of welcome to our community and do let us know if there is any way that we can be helpful in making sure that the pass are as straight and as smooth as they possibly can be. Let me also acknowledge with thanks Liz Jackson who has worked so tirelessly and I hope you have recognized already if you haven't would you join me in saying Liz. Thank you. And then one of our inspirational leaders here on this campus, your wonderful friend and brother, Richard, what would we do without you, we would have to do something to say please, go to Orange County, convince Richard Peterson to come be a part of this community. What an inspiration he is, what a great serving heart and so Richard, thank you for your help and assistance. Although he made it very clear yesterday that he had just turned everything over to Liz. So Liz thank you and I think Professor Peterson is simply basking in your reflected glory and and hard work. You know, I brought out some notes today before I move into some observations about our constitutional order our constitutional - don't you love the sound of little ones. That crave always welcome. Because I had the great to privilege in blessing to be in the company of Elder Wickman and Von Keetch who is here. I think there are folks from a wonderful law firm in Salt Lake are here with whom I have been and so Elder Wickman, I went back to my notes from that visit and I was so moved by the visit to Salt Lake and to various and sundry important places to the LDS Community. I just stopped writing but these are my notes. And that was that was a one day visit but I just I either ran out of the ink or whatever but Welfare Square, West Salt Lake. 160 of these in the United States and the concept, the care for the poor and the needy but also self-help and that story, 1936 officially started with Harold Lee and 1937 - the 10 acre parcel purchased for a 100 bucks. Pretty good price and a root seller and then I canary and I and I recall by the way learning about the fast offering and then so forth of wonderful practices of the LDS Community. The fasting for two meals once a month and of that empowers the community to do in such a powerful way - the employment centers worldwide. I can keep going but I will just say it was such a moving visit in so many respects. So thank you for your hospitality when I was in Salt Lake which I have - of course been to many number of times but this was a very special visit and the combination was the world's most delicious chocolate milk. Do you know what I'm talking about? Do the people here know about what I'm talking about? Elder Wickman, do they know what I'm talking about? They don't. It was wonderful that dairy oh my word my cholesterol that the lord will provide. I did want to share a few thoughts about our constitutional tradition at a time when in fact there are very serious and fundamental questions being asked about what is the role of the courts, what is the role of the judiciary in the interpretation of this organic document and the various and sundry amendments. So in frequently amended of course 10 times famously at the founding of the Republic in 1791. We all know the great issues that Mr. Madison and others faced in terms of the fight for ratification and in a sense that a political mistake have been made in Philadelphia and willingness to come to grips, great lawyers and thinkers that they were aware of the political reality which is in the United States the baseline is freedom. And that baseline was viewed as insufficiently protected by the structural arrangements that we are all very familiar with his lawyers and his friends of the law. The twin pillar is a separation of powers and all of that means what a rich concept that is and of federalism. The vast commercial republic but divided into states with as our friend Akhil Amar from the Yale Law School reminds us in his beautiful biography America's Constitution. Our Constitution was ever looking westward and also looking toward the eradication of slavery and the perfecting of the union to eventually the shedding of blood in the civil war, in the post civil war amendments. Throughout that process, of course, that question arose even though it was not debated extensively is what will the power of this new government be especially with respect to the power set forth in the shortest article of the three empowering articles, namely article three and Mr. Hamilton, of course lifted up very familiarly and famously a vision and his Federalist 78. His vision was that this, of course, and we were all familiar with these Foundational Documents, but this is by way of a gentle reminder before moving to then, the more current issues and that what I am saying is the erosion of the great constitutional tradition of the country. And for shadowing some of the debates that are with us to this day Mr. Hamilton said essentially be of good cheer, fear not, for the judiciary is that arm of government where judgment and not will is to be exercised. There is no power of the sword, there is no power of the purse, it is only the power of judgment and resolving a case or controversy and we are familiar with issues of standing and rightness and justice-ability. This kind of a limiting principles that are designed to maintain a limited federal judiciary and leave aside issues of the state constitutional power as interpreted by the state, of course, in the state Supreme Court. That was the vision but he also had a word of warning that it might very well be that the courts would, in fact, usurp their proper and limited authority in the exercise of judicial review. What is to be done in that circumstance? He didn't really resolve it in 78 he simply said a sort of a political word of assurance that is a potential danger. But that danger is less than the danger of the legislature eroding your freedom. Now we might with the great wisdom of Mr. Hamilton say, you know, maybe he was right for his time given the threats, the experiences, the dealing with parliament was such an enormous threat to the liberties, the freedoms of English persons and so forth. But we live in a different era. But that was the idea that be of good cheer because the judiciary well, in fact, be inclined simply to exercise judgment and not will to impose its will policy preferences as it were. But, of course, we are fallen and so it that there have been issues along the way and I want to begin with these reflections on what I am calling the eroding, - the great tradition of constitutionalism in the United States. A 102 years ago so to move all the way from the founding to Holmes's remarkable descent in Lochner versus New York. Like so many great constitutional cases Lochner as every student of constitutional law knows involved a very simple issue. The constitutionality of a law passed by a state legislature that imposed maximum hours that bakers and confectionary workers could devote in a single day and in a single week. 11 hours a day that was it, no more. No overtime, they just that's it. You can't work anymore and this is for you - of course, its important remedial legislation but it also was viewed as interfering with the right of individuals to contract one with another and so the case found its way to the Supreme Court of the United States which famously struck down the legislation as a violation of the freedom of contract protected by the 14th Amendment's Due Process Clause. And in his astonishingly sure descent Oliver Wendell Holmes, Jr. and I think this is something that I would comment to you as as a take away assignment if you would be so kind, no grades. But I think we are edified when we return to certain dimensions of the constitutional canon. He begins with an apology. I sincerely regret that I am unable to agree with the judgment in this case and that I think it my duty to express my descent. He then writes two paragraphs. So short, so powerful. And one of the many things that he says in this this is all very familiar to us as the 14th amendment does not, in fact, embody Mr. Herbert Spencer's Social Statics (contemporary) that meaningless to us largely but it had a real power with the readers of the day and he talks about quickly chronicles the various incendiary ways in which laws impinge upon the ability of an individual to contract, carry on his or her trade and so forth. And he says that these various laws embody convictions which judges are likely to share. But some judges may not share these convictions and then these words. But a constitution is not intended to embody a particular economic theory whether in paternalism and the organic relation of the citizen to the state are of laissez-faire. It is made, familiar words now, yet the constitution is made for people of fundamentally differing views and the accident of our finding certain opinions, natural and familiar or novel or even shocking are not to conclude our judgment upon the question of whether statutes embodying them conflict with the constitution of the United States. An idea of an organic instrument designed for people of fundamentally different values and that does not in fact yield up a specific answer. Rebuking his colleagues who felt that it did that the constitution did indeed have an answer, that answer was the primacy of contract. This constitutional tradition which I hope very briefly to describe has been embedded and embodied very recent jurisprudence of the Supreme Court, this year we celebrate the 10th anniversary. I hope it will be marked in law schools across the United States, but certainly friends of the constitution should be in this assisted suicide cases from exactly 10 years ago when the Supreme Court of the United States following this vision of Oliver Wendell Holmes Junior said the constitution does not yield up an answer with respect to assisted suicide laws. And in fact in his marvelous opinion for the majority Chief Justice Rehnquist now deceased spoke that by extending constitutional protection to an asserted liberty interest, we to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field lest the liberty protected by the due process clause be subtly transformed into the policy preferences of the members of this court. From Oliver Wendell Holmes, Jr. to William Rehnquist just 10 years ago and along the way voices, yes Holmes and what Holmes said to us and continues to say to us in the pages he writes in these reports were words that he basically had penned 15 years before when serving on the Supreme Judicial Court of Massachusetts. He felt the same way as a judge interpreting the state constitution to be very, very cautious and careful in interpreting the document that Mr. Adams basically grafted, virtually a committee of one, the Massachusetts Commonwealth Constitution. Be careful. So here is this person of this great genius nonetheless calling for humility along the way joined by Brandeis and Brandeis's famous descents giving voice to the idea that there should be in fact a vigorous market place of ideas that is protected. But that policy issues in economic and yes, social policy need to be hammered out in the cauldron of democracy. Alexander Bickel, in looking back on the Warren Court, a political liberal himself but nonetheless, a great believer in this tradition that Homes gave voice to. "The only abiding" these are the words of Alexander Bickel from the Supreme Court of the Idea of Progress, page 175. "The only abiding thing" as Brandeis liked to say "is change." And in the broad realm of social policy, judicial supremacy, we much conclude, is simply not possible. Now this is Alexander Bickel at the Yale Law School. The judicial process is too - it was principle prone and principle bound. It has to be for there is no other justification or explanation for the role the judiciary plays. It is also too remote from the conditions and the deals case by case and deals with too narrow a slice of human reality. It is not accessible to all the varied interests that are in play and any decision of great consequence. It is very properly, independent. It is passive. It has difficulty controlling the stages by which it approaches a problem. It rushes, this is the judicial process, it rushes forward too fast or it lags behind, it's pace hardly ever seems just right. For all those reasons, it is in a vast complex changeable society, a most unsuitable instrument for the fashioning of social policy. This is a great political liberal and disciple of Felix Frankfurter and so let me scroll back to not overlook. Frankfurter and his tribute to Holmes and as Holmes lecture's at the Harvard Law School in 1965. Mr. Justice Homes and the Supreme Court, and he traces the Holmesian philosophy through 50 years of jurisprudence. Holmes did not read merely his own mind to discover the powers that may be exercised by a great nation. His personal views often are encountered to legislation which came before him for judgment. We know from his writings that Holmes was a social Darwinian and holds some views that we would find quite repugnant. He privately distrusted attempts at improving society by what he deemed futile if not mischievous economic tinkering. The progressive era, Lochner versus New York. This is folly. He would go thrice wounded in the civil war. He was Darwinian in his views. But it was not his business; it was not for him to prescribe versus society or to deny it the right of experimentation within limits that are very wide. This was to be left for contest by the political forces in the State. The duty of the court was to keep the ring free, a vigorous robust view of the first amendment. Or consider the person who when, Cardoso was asked who is the greatest Judge on the Supreme Court and he was on the Supreme Court. He said, the greatest Judge now sitting in the English speaking world is the Tenth Justice, not the Solicitor General - Learned Hand. In his magisterial biography of Learned Hand, who had absorbed the philosophy of Holmes and of Brandeis and had embraced it as his own as perhaps the most brilliant student ever to pass through the hallls of the Harvard Law School. In his introduction of Gunther's biography of Judge Hand, Justice Lewis Powell says this, "Judge Hand was suspicious of judicial interference with the decisions of elected legislatures. He voted only twice to invalidate statues on constitutional grounds." He was a judge for almost a half century. And his correspondence shows that he regretted not having maintained a perfect record in that respect. This is not to say that Judge Hand viewed the democratic process with unqualified trust. To the contrary, he feared in the age of mass communication that society could fall under Holmes's - excuse me Hands words "the power of the conglomerate conscience of a mass of babbitts who intelligence we do not approve and whose standards we may detest. Hand, like Holmes, was an elitist. None the last Judge Hand's steadfastly believed that the democratic process was superior to any available alternatives. The worst form of Government as Churchill said, except all others. And then on page 303, here is the voice of Joe Gunther, whose voice we miss from the Stanford Law School, "Judge Hand never permitted sarcastic contempt to get in the way of full and fair examination of the cases. Similarly his strong sense of the authoritative voice of precedent and his deference to legislatures choice, a public policy misguided as it might be in Hands own eyes, did not mean detachment and aloofness from the tribulations of man kind." And then a beautiful mini essay about how Judge Hand had the sense, this great heart of caring and concern and he had at the same time not willing to displace the considered judgment of the legislative branch. This is the grand tradition in American constitutional law. They can trace, it's roots far further back. But, I think, for purposes of our conversations with our colleagues, with at times our worthy opponents; a good starting place is Holmes and Lochner in committing that to once said of armaments of ideas that here is where we stand. We may agree or we may disagree with the policy but let we the people decide. Now one might say, well this sounds as if it has a certain grandeur about it, but it's a little bit old, isn't it, I mean. If you got to go back to 102 years ago, can you give us a little bit something more recent? Yes and now I am going to move to what might be viewed as the very opposite side of the ideological and philosophical spectrum. And let me summon up enclosing three examples of the same kind of voice. Stephen Breyer, Active liberty. "My thesis", Justice Breyer says, "is the court should take greater account in their interpretation of the constitution. Of the constitution's democratic nature; when they interpret the constitutional text." That thesis in encompasses well-known arguments for judicial modesty. "The judge compared to the legislate "- this is Steven Breyer; "lacks relevant expertise. 'The People' must develop their own political experience and obtain", his words "the moral education and stimulus that comes from correcting their own errors." This is Justice Stephen Breyer, Active Liberty 2005. And then if we want to move from the main stream, ideological, liberal side, if I may use those words, and I hesitate to do it. How about Mark Tushnet, sometimes viewed as a bit of a radical and a lovely guy, we've had him here. He's really wonderful. Well, and what is Mark Tushnet whose definitely from the ideological left saying, "We must take the constitution and get it back from the Court's." That's the name of his book, "Taking The Constitution Away From The Courts". And he begins with Lincoln's first inaugural where Mr. Lincoln says, in condemning the Dred Scott decision, that we cannot, in fact, and he was deeply respectful, as Mr. Lincoln always was. We cannot, in fact, turn over our constitution to the judges. Our constitution is too valuable to turn it over to the Judges. Oh yes, it is too valuable to turn it over to the judges. Oh yes, it binds the parties but do not assume that that voice is the final authoritative voice. That sounds almost radical to us, doesn't it? But it was also the voice of Thomas Jefferson, it was the voice of Andrew Jackson, it was the voice of Abraham Lincoln and it was the voice of Franklin Deleanor Roosevelt. So what is Mark Tushnet from the ideological well I have to say, we need a populist constitutional law and that rests on a commitment to democracy. A commitment itself embodied in he (list) of the Declaration of Independence. No one can guarantee that this is Mark Tushnet that democratic processes will always yield results I agree with. Reasonable people can disagree with the judgments I make, about what the Declaration of Independence principles require but democracy is a way of resolving such disagreements without routinely risking severe social disorder. This is the voice that the populist laughed or Larry Kramer now the Dean at Elder Wickman's home (indiscernible), we still claim you here at Pepperdine Elder Wickman. Larry Kramer the Dean at Stanford wrote in a book, 2004 the people themselves, popular constitutionalism and judicial review and he condemns what he sees as a latter day apostasy on the part of legal culture in simply entrusting constitutional interpretation with extraordinary deference to the judges. This is the Stanford Law School Dean. His words, both in our origins and for most of our history American Constitutionalism assigned ordinary citizens a central and pivotal role in implementing their constitution, final interpretive authority rested with the people themselves. From Oliver Wendell Holmes, Jr. to Mark Tushnet and Larry Kramer. I am very thankful and pleased and honored to represent the church in the unfolding case. And now in the Supreme Court of California in re Marriage Cases, judicial counsel coordination proceeding, number 4365 the law has way of making even urgent issues seem very technical. City and county of San Francisco versus the State of California. Keeping prayer of the efforts that will now be underway in the coming weeks and few months but I want to commend those in this room but lead by elder Whitman and others and his role and then my colleagues at Kirton & McConkie because here is the application for leave to file a amicae curiae brief and the amicae curiae brief. At the church of Jesus Christ of Latter Day Saints the California Catholic Conference, there National Association of Evangelicals and the Union of Orthodox Jewish congregations all with one voice and I was so honored and am so honored to be a part of that voice in saying a number of things including the fundamental and foundational importance of marriage on which the church has spoken and it is spoken in a very loving and caring way, a way of saying that our concern is a sanctity of marriage and family life. It has everything to do with marriage. And the people should be able to determine these kinds of fundamental, social orders that the courts of California should not in fact embrace the approach of a very deeply divided Massachusetts Supreme Judicial court in it's 4-3 decision in the Goodrich case. It rather should, in fact, especially, given the nature of our gathering here in California that in California the voice of the people is extremely important. It has great constitutional significance in our constitutional structure, initiatives and referenda whether wise or unwise that is the way we have ordered our affairs here in this state. Judges, please respect that process of the ability of the people to govern themselves. May God's grace we enjoy success in the California Supreme Court as the Church takes this leadership role in articulating and seeking to vindicate a grand constitutional traditional in American law. Thank you and welcome to Pepperdine.
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