Welcome, welcome. As we just noted, we are here to talk about constitutions and the rule of law. With a particular focus on a few got a rule of law, how do you keep it . How do you nurture it . How do you make it stick . And we got three extraordinarily distinguished panelists to lead these conversations. Each of them is directly involved in the workings of constitutional democracy studying it, thinking about it, writing about it, teaching about it, and in judge gregorys case, actually directly involved in its workings. Let me introduce this triumvirate. Roger gregory is the chief judge of the court of appeals for the Fourth Circuit. And judge gregory has served on that court for 20 years, almost 20 years, and is now the chief judge. He has the distinction of having been nominated for the court by both president clinton and president george w. Bush, and he was confirmed by the senate 931. [laughter] judge gregory is the first africanamerican to serve on the Fourth Circuit. Before going on the bench, he practiced law for almost 20 years, including founding a law firm with doug wilder, the first africanamerican governor of virginia. A. E. Dick howard is a cheered chair professor of law and Public Affairs at the university of university of virginia and served on the faculty longer than any other mortal. [laughter] mortal, dead or alive. [laughter] he is still going strong 55 years into the mission. Professor howard has devoted his professional life to probing the mysteries of the u. S. Supreme court and to understanding constitutions. He was the principal draftsmen of the last revision of virginias constitution of 1968, and helped to write constitutions in many countries. He has been acclaimed of one of the great virginians of the 20th century. Jeffrey rosen, here on my left, is the president and ceo of the National Constitution center, which helps students learn on a nonpartisan basis about the u. S. Constitution. He is also a professor at George WashingtonUniversity Law school and a contributing editor of atlantic magazine. Professor rosen is an absolutely prolific scholar and a writer. And i think it is fair to say, he is one of our countrys most compelling analysts and commentators on legal matters, if not perhaps the most compelling. You all have probably read the description of this panel in the program for the day. Rule of man or rule of law . Society without checks and balances. What is the role of constitutions in making the rule of law take hold in emerging representative systems . And what makes a constitution last . You cannot build a Free Society Without the rule of law being paramount. The question is how to make the rule of law stick. Now, when it comes to the rule of law, it seems to me that past experience makes pretty clear that it is often easier for a country to talk the talk than to walk the walk. Constitutions are written and adopted around the globe with provisions for the protection of civil rights, independent judiciary, checks and balances, and much more, but when it comes to implementing these constitutional provisions, the rule of law often cannot compete with the rule of power, privilege, greed. So, what factors really do account for the success of the rule of law in some countries, but not others . And once the rule of law takes hold, how can it be nourished over time . How can it be made to stick . And are there reasons for us to believe that the rule of law will hold increasingly in the centuries to come . Or has the rule of law had its brief moment in the sun, and now constitutional democracies are an endangered species, sinking in a sea of enormous technological change and societal alienation . Now, these are questions i will grace our panel with at the end of their presentations, assuming they leave enough time to get to the questions. The real battle for this panel will be that each panelists gets eight to 10 minutes, uninterrupted, to give his perspective on constitutions and the rule of law, and then we will have a conversation together along the lines that i just sketched. And lets begin with judge gregory in the middle. He is actively involved in making constitutional democracy work as a judge, and he obviously has thoughts about the role of an independent judiciary and a functioning rule of law. Judge gregory, you are unleashed. [laughter] judge gregory thank you. As any good trial lawyer would know, when you have great experts, you just get out of the way and let them when the case for you. In this case, i have great experts and my job is easy in that regard. The role of a judiciary is absolutely essential, and that is my answer. But it is true. In september 1787, when our framers came out of that musty room in philadelphia, someone asked ben franklin, what have you wrought . And he said, a republic, if you can keep it. It was important because he said, if you can keep it. He was not speaking to the people who had just formed this document to bring forth a new nation. He said this republic will be here if you keep it. And i think the constitution has stuck, it sticks, and i think it will stick as long as we, the people, understand that it belongs to us. The idea that the people seated this power to a government for its purpose. It amazes me that most men do not cite the preamble when they come before our court. These are very pressing constitutional issues. The reason being because, i say that because our framers spoke in broad language and broad principles. So, everything is not there just from the text to read, but the preamble said we do this in order to establish a more perfect union, and it was also to first mandate to establish justice, so i say the preamble should be cited because whatever we do with interpretation, the end mission is always justice. Therefore, i would always argue, if i were the litigant, if there is a question, if there is a doubt, if there is a bend, it must be towards justice. Dr. King said the moral arc of the universe is long that it always bends toward justice. That is probably the most enduring thing the framers gave us with the preamble because the arc must bend to what is established. So, the biggest tool we have as the judiciary as we are independent. Federalist paper 78 says that the constitution is the fundamental law and judges shall regard it as such. But it also says in terms of judicial review that establishes the rule of law that it becomes the primary law regarding, not men and women, but the law, and further, federalist paper 78 said that it is the peculiar province of the courts to interpret the law. Proper, peculiar province of the courts. That is a heavy assignment to interpret the law under judicial review. It came through that in terms of understanding. But i say this, that power is intrusted to us by the people, and i think the most important part of the analogy i would give is like an anvil. Its the anvil upon which the constitution has worked. You see because it has to be worked. Not with a hammer beating people down, but if you will, to make it a tool that becomes the utility for selfgovernment because there was so much the framers left open. Most people who watch police shows know about miranda rights. But that is not in the constitution. But it is in the constitution that you shall not be made to give testimony against yourself. So, it should not be a place you were somehow coerced or intimidated, so what grew from that is judicial creation for the purpose of carrying out the spirit of what the framers did, and that is what we are always trying to do. Not just find out about the text. You cannot work it just by reading. There has to be context. It is history in the classic forms of government. That is what they gave us. A republic. As a judge, i have had some incredible cases since i have been on the Fourth Circuit. They are always difficult. They are tough. That is what the whole challenge is, to make sure that selfgovernance is preserved. Rights are protected. Because again, it is the people that gave it, and going back to the federalist paper 78, it talks about in terms of judicial review and nullifying the acts of congress, or acts of the executive, it says that when you get to ascertaining what the constitution is, and this is what keeps me in check because the people gave me this power. A very sacred one. First, ascertain what the constitution says and understand it. Then, ascertain what the statute or the act is. And then determine whether or not there is an irreconcilable variance. If there is so, you always prefer the constitution over the statute. Not because you want to do it, but because the intention of the people, which is expressed in a constitution, should always prevail over the intentions of its agents. I love that phrase. Because again, you own it. You gave it to me with the sacred trust that i will do so without fear or favor, but in terms of the constitution, making it a living document, making it a tool that is useful, that can carry out selfgovernment. I remember i was on a big case, and i was about to come on for oral arguments, and i could hear crowds of people outside circling the court. They had placards. I thought, how wonderful this country is. That people are free to assemble and to express their views. Now, i cannot look out there and try to count noses to see what try to count noses to see what was the prevailing thought. Like justice, i am blind to that. But the peoples sacred trust must be kept in the confines of understanding that constitution. One of the greatest compliments i had since i have been chief. A man i was introduced in church, but he said to me, an africanamerican man said to me, the Fourth Circuit is a just circuit. It turns out he had a habeas case. He had won his case, but that was not the point. He said, i went from an incarcerated person, and 18 months later he owned a home. He said this is a symbol i use. I go back to the prison and tell other people where i was, how they can do something to change their lives. And that is what to me makes the judiciary important over the constitution in trying to do what it dictates our importance because it gives us a chance for all of us to understand selfgovernance and being who you can be, the highest person, all people, and making it inclusive. We talked about the glaring things left out of the constitution. The right to vote and citizenship are not defined. Its on an anvil. It is beaten not with a hammer but a pen. And yes, we have a republic. The question is, we must keep people engaged, and i am happy that the judicial has a role in that. And a friend of mine who died not too long ago, he had a case that talked about executive privilege, and said democracy dies behind closed doors, but we must be transparent. That is why we write opinions. Read them, understand them, disagree with them, but know that they are done so faithfully to be faithful to the rule of law that selfgovernance will always prevail. Thank you. [applause] roger, thank you. [applause] we are glad you are on the Fourth Circuit. Judge gregory thank you. Professor rosen. Role ofard about the judiciary. Ent how about addressing the structural checks and balances that guide and restrain and lead to compromise . Mr. Rosen its a great honor to be here. I was born in new york and now philadelphia at the great constitution center. Right across from Independence Hall where jefferson wrote the declaration, and madison and those other great framers wrote the constitution. What was madison thinking when he created the greatest human document of freedom . What was the centrality of the structural guarantee for the preservation of the rule of law . The summer before he came to philadelphia, madison had a reading project that had been sent to him by jefferson. Jefferson sent him two trunk fulls of books from paris about the failures of ancients democracies, in particular greece and rome. And madison was concerned that america might go the way of greece. In federalist 55, he wrote, in all large assemblies, passion never fails to rest the scepter of reason. Even if every athenian had been socrates, athens would still have been a mob. So, madison deduced from his reading that unchecked mobs deliberating facetoface can be seized by passion and lead to factions, which he defined as groups animated by passion rather than reason. By selfinterest, rather than the public good, which judge gregory so memorably defined. So, madison and the other framers set out to design a system where people would be ruled by reason instead of passion. Structural protections were at the core of that project. In particular, madison was concerned about mobs like shays rebellion in massachusetts. The tried to repudiate debts from their creditors. He wanted to design a system that slowed down the liberation. He is particularly encouraged by the large size of the American Republic. He thinks because america is so big, it would be hard for mobs to discover each other, and by the time they do, they will get tired and go home, therefore, their representatives will be able to deliberate thoughtfully by reason rather than passion. That is why representation, which judge gregory so powerfully reminded us, is the core of a representative republic, is key. Unlike athens, the framers did not want direct democracy. They didnt want referenda or brexit vote or twitter poles. They wanted thoughtful representatives of the people to deliberate and compromise. And that is why it is so significant that we are here on the 400th anniversary of representation. How did they express these guarantees in the constitution itself . At the National Constitution center, which i want you to visit if you have not yet. We have the five earliest drafts of the constitution ever written, including the very first draft written by that forgotten, but heroic framer, james wilson, who wrote the first words ever written about the constitution. And the very first draft says in the preamble that the government of the United States shall consist of the executive, legislative, and judicial branch. That was it. Separation of powers. The idea of we the people came later. And that, too, was wilsons words. It was only the third draft that said we the people of the United States. Signaling wilsons belief that we as a whole were sovereign. But separation of powers was the crucial, central innovation. Where did wilson get this notion of separation of powers . Well, from the revolutionary era state constitutions. And in particular, from the virginia declaration of rights. It is always so meaningful for a lover and scholar and learner of the constitution to come to virginia because not only is virginia responsible for the 400 anniversary of the rule of law, it is responsible for the rights of 1776, which jefferson had by his side when he wrote the declaration of independence, and when madison wrote the amendments that would eventually become the bill of rights. We also have at our center one of the 12 original copies of the bill of rights. And you can find online, drafts of the amendments that madison proposed, but were not ultimately adopted. You can find this on the National Constitutions interactive app, and i want you to download it, but not right now because im talking, but after the panel. You will find two drafts that madison drafted that he cut and pasted from the declaration of rights. The first directly channeled and basically reproduced what jefferson put in the second sentence of the declaration of independence, that all men are created equal, they are endowed with natural rights from god or governments that government has to secure these rights. That is the lockean statement of natural rights. It reminds us that governments must be limited by constitutions, and when they threaten rights rather than protecting them, they people have the right and duty to change them. But the Second Amendment that madison proposed and was not adopted also comes from the virginia declaration, and it says the legislative branch cannot exercise judicial power. It was a separation of powers amendment, and it reiterated what the virginia declaration had emphasized, that it was cruciallyimportant for each branch to stay within its own lane in order to preserve the sovereignty of the people itself. Judge gregory powerfully quoted hamiltons notion that whenever there was a conflict between the will of the people and the will of the representatives, you prefer the principal to the agent. That is based on the idea that the three branches dont speak for the people, only we the people speak for ourselves. Our will is embodied in the constitution. Judges can enforce that by ensuring that each branch staves to its own lane. And that is why madison originally thought a bill of rights was unnecessary or dangerous. Unnecessary because the constitution itself was a bill of rights by limiting power, and only specifying enumerated powers to the congress and to the executive and the judicial branch. He thought it was dangerous because if you write down certain rights, people might wrongly assume that if a right was not written down, it was not protected, but all of the other framers thought right came from god and not from government that it would be impossible to limit the number of rights. He changed his mind for prudential reasons. And we have the bill of rights taken largely from the virginia declaration. Madison and the other framers thought those rights would be parchment barriers unless the structural guarantees of the constitution were preserved. That is why that is so crucial to the rule of law. I will end by asking, was madison too optimistic that the separation of powers and checks and balances would ensure a role by reason rather than passion . Remember, the whole system is based on when passionate factions or mobs try to mobilize, they wont be able to discover each other, and based on the idea that thoughtful representatives of the people will set aside the self interests of their partisan constituents, and will deliberate in the public good. We all know that we are living in a world of twitter and facebook, where mobs can mobilize immediately and quickly, where false news travels faster and further than fake news because it is more appealing to the passions, and when we are living in filter bubbles and echo chambers, the people themselves are increasingly unwilling to listen thoughtfully to arguments on the other side, and to allow our representatives the time to deliberate in the public because that is the question, is there enough time . I want to recommend madisons metronome. Madison thought we should slow down deliberation. At a time when the speed of deliberation is undermining the speed bumps and cooling mechanisms, we need to talk seriously about whether reason can adequately be served by the structural mechanisms. Ultimately, i am optimistic that they can be,