I appreciate the chance to be with you today and to speak in
this distinguished series of lectures, named after a true friend
and great scholar, Russell Kirk. Russell affected the lives of many
people, both through his writings and through personal contact. I
remember my first meeting with him. At that time, I was joined by a
not-yet-famous State Representative and a number of other political
hopefuls as we traveled to Mecosta for a meeting with the Kirks. I
came away with a number of books, of course, which I still
The State Representative who joined me has gone on to become
rather well-known as Governor John Engler, and whatever success I
have had I also owe to experiences like the one I had in
My relationship with Russell and his wife Annette Kirk did not
end with that meeting, however. Russell helped in many ways with
the founding of the Federalist Society and the Harvard Journal
of Law & Public Policy. What is more, when I was the
Michigan State GOP Chair, Russell and Annette were extremely
helpful in putting out the fires that threatened party unity during
the 1988 election. We were successful in bringing the party
together, and ultimately successful in the election. I will always
remember those years with fondness and gratitude.
Kirk left us three years ago today, and it was a great loss, but
I think that we should be celebrating his legacy. And it is an
important--and in important ways hopeful--legacy. He left us well
over 30 books, and thanks to his wife, Annette, we can look forward
to seeing still more of his work in collections of his most
Central to his work is the belief that we must help preserve the
"permanent things." In daily life, perhaps the most important of
these are religious truth, individual virtue, our duty to care for
one another, and maintenance of traditions that help us learn to
act as we ought to act. Also key was Kirk's recognition that
politics cannot give us these permanent things. Politics is the art
of the possible. It should aim at balancing the needs of freedom
and order by protecting society's fundamental institutions.
A primary means by which we organize our political life is our
Constitution. Kirk once said that "The aim of a good constitution
is to achieve in a society a high degree of political harmony, so
that order and justice and freedom may be maintained." Maintaining
this harmony does not entail a "war on poverty" or any other
utopian project. It means protecting the institutions that allow
people to go about their lives, following permanent standards of
Today we face dangers to our way of life from an intrusive
federal government, taking for itself powers that belong to the
states or the people; from an activist judiciary that interferes
with the ability of the people to deal with one another as they
should; and from the breakdown of public standards of civility. In
addressing these challenges, I think we would do well to look at
the vision of a Conservative Constitution that is so much a part of
Russell Kirk's legacy.
I would like to talk about three fundamental aspects of the
Conservative Constitution that we have begun to lose, as well as
some reforms I think can help us reclaim them. These fundamental
aspects are federalism, or what Kirk called "territorial
democracy"; our unwritten constitution, the shared customs and
practices on which public peace and well-being rely; and, finally,
order itself, for without order there can be no freedom, no
prosperity, no real nation.
The first aspect of a Conservative Constitution we must reclaim
is federalism. Local governments are familiar with the
circumstances of their people. They know best what policies will
work and will be accepted; they know best how to follow the will of
the governed effectively. Unfortunately, for decades now, the
federal government in Washington, D.C., has been usurping powers
that belong to our states and localities.
Thankfully, in its last session, Congress finally returned
control over significant welfare policy decisions to the states.
States now can set up work requirements, time limits, and other
programs to encourage people to get back into the workforce so that
they can lead productive lives.
At least as important, the federal government no longer forbids
states and localities to cooperate with faith-based nonprofit
organizations. For too long, Americans who need help have been
forced to look to the government and its bureaucratic forms. It is
time we returned some responsibility to faith-based organizations
that can actually help people lead better lives.
No longer will faith-based groups have to give up their
religious character to receive government money as they seek to
help people who need them. Also, by returning control over
important issues to the local level, these reforms will help
revitalize local government and make it important, once again, to
I believe welfare reform should be the beginning of a rebirth of
local control and federalism in our country. That is why I am
re-introducing legislation to require that a Constitutional
Authority Clause be included in every bill considered by Congress.
The clause would state which section of the Constitution grants
Congress the authority to pass each particular bill. This will help
us recapture the limits on federal power given us by the
Constitution's Article I and the Tenth Amendment. It will perform
three important functions:
First, it will encourage Members of Congress to consider
whether the action they are considering should be taken by the
states or left to the people rather than being carried out by the
Second, it will put Congress's view concerning its proper
powers on the record for the people to judge. This will encourage
politicians and citizens to reflect on the proper distribution of
powers in our federal system.
Finally, this statement will help courts evaluate
legislation's constitutionality. Convincing statements of authority
will clear up many questions. Unconvincing ones will help courts
and the people hold Congress responsible for overreaching its
OUR UNWRITTEN CONSTITUTION
The Constitutional Authority Clause would help us regain the
limits on central authority built into our written Constitution.
But we should be just as concerned to preserve our unwritten
Our written Constitution rests on centuries of law and political
experience. It incorporates our legal, religious, and practical
traditions, and we allow these traditions to atrophy at the risk of
losing our constitutional order.
Kirk argued that "no matter how admirable a constitution may
look upon paper, it will be ineffectual unless the unwritten
constitution, the web of custom and convention, affirms an enduring
moral order of obligation and personal responsibility." I agree
with Kirk on this point, and I find it ironic that some people are
misinterpreting our written Constitution in such a way as to
undermine the unwritten constitution that gives it life.
One of the fundamental bases of our moral order--recognized by
Judaism, Christianity, and Islam alike--is the Ten Commandments.
The moral principles laid out in these commandments, including love
of God as well as rules against murder and perjury, literally gave
birth to our society. We ignore them at our peril. Unfortunately,
at least one judge has sought to bar expression of these principles
from our public square.
Recently, an Alabama judge ordered his colleague, Judge Roy S.
Moore, to stop displaying the Ten Commandments in his courtroom.
This ruling, now on hold, rests on the mistaken belief that the
Constitution's Religion Clause forbids such displays. It also rests
on hostility toward public affirmations of our religious and legal
heritage. It can only undermine our adherence to the principles
underlying our legal order.
A resolution introduced by my colleague, Jeff Sessions, would
state that Judge Moore should be allowed to continue displaying the
Ten Commandments in his courtroom. I believe that this is the
CONSERVATIVE DISPUTE RESOLUTION
By attacking public displays of religious belief without sound
bases, courts undermine the public civility they claim to seek.
Civility and community cannot exist without trust, and trust
requires common rules of conduct. The Ten Commandments are at the
base of such rules in our society, but our rules also include
numerous customs, including those governing how we settle
Since I became a United States Senator, I have been particularly
concerned about the litigation explosion because I believe that
lawsuit abuse is tearing our society apart. It is destroying mutual
trust and undermining our ability to help one another and maintain
a decent society. It is turning neighbors into potential plaintiffs
Frivolous litigation is expensive. The research group
Tillinghast reports that Americans spent $132 billion on civil
courts in 1991 alone. Tort costs add 2.2 percent, on average, to a
product's price. They add $500 to the price of a new car and $170
for a motorized wheelchair.
Concerned by these costs, I have sponsored broad civil justice
reform. Unfortunately, no broad reform has made it past the
President. This is unfortunate for our country, particularly
because a primary victim of the litigation explosion is our
nonprofit sector. Let me tell you what I mean.
The United States has a network of 114,000 nonprofit
organizations, ranging from schools to hospitals to food programs.
All told, they engaged in $465 billion worth of nonprofit activity
in 1990 alone. Nonprofits care for the poor and the sick, counsel
the troubled, comfort the weary, and teach all of us how to care
for our fellow man. They rely heavily on volunteers, who become the
backbone of our civil society. According to Independent Sector,
Americans donated 9.7 billion hours of their time to nonprofits in
Unfortunately, the percentage of Americans volunteering dropped
from 54 percent in 1989 to 48 percent in 1993. Combined with rising
costs, this loss of volunteers is hurting our nonprofits. Even if
government could take over the roles of these volunteers--which it
cannot--this would be a tragedy. As the noted French observer of
American politics Alexis de Tocqueville noted long ago, "The morals
and intelligence of a democratic people would be in as much danger
as its commerce and industry if ever a government wholly usurped
the place of voluntary associations."
This must not--and, in my view, need not--happen. We can and
must see legal reform as part of a larger effort to restore
civility to our public life. I firmly believe that, across the
United States, people have an abundance of desire to help the less
fortunate, to rebuild our cities, and stop moral decay in our
society. But all too often, the federal government creates
impediments and fails to provide the incentives we need to spur
community renewal. The federal government's War on Poverty, for
example, has been an obvious failure. We spent $5.4 trillion over
three decades fighting poverty, yet today's poverty rate is
essentially the same as in 1966.
We must promote non-governmental solutions to human problems,
inviting, encouraging, and empowering charities, families,
churches, small businesses, and community organizations to be more
active in the hard, essential work of social renewal. We need to
reduce governmental barriers to allow the culture and private
sector to renew American society.
Our civil justice system, by allowing frivolous lawsuits into
court, has become a significant barrier to voluntary activity that
we can and must address. Insurance costs are one problem. John
Graham of the American Society of Association Executives testified
before Congress last year that association liability premiums went
up an average 155 percent in recent years.
What kinds of suits add to insurance costs? The ASAE reports on
a New Jersey umpire forced by a court to pay a catcher $24,000.
Why? While playing without a mask, the catcher was hit in the eye
by a softball. He complained that the umpire should have lent him
Even insurance cannot cover all the costs of lawsuit abuse.
Charles Kolb of United Way says deductibles for his organization
fall into the $25,000-$30,000 range. When, as in recent years, the
organization faces three or four lawsuits per year, $100,000 or
more must be diverted from charitable programs.
Another problem is joint and several liability, in which one
defendant is made to pay for all damages even though responsible
for only a small portion. Such findings are a severe burden on
United Way, a national organization sponsoring numerous local
nonprofits. Although it cannot control local operations, United Way
often must defend itself in suits arising from injuries caused by
the local entity. Such findings also discourage large organizations
from cooperating with smaller, more innovative grassroots
These litigation-spawned problems endanger our nonprofits and
our nation. To the extent we allow our charitable organizations to
be hampered by frivolous lawsuits, we impair our society's capacity
to care for those in need and to teach caring to its rising
Now, I know that President Clinton has been participating in an
important summit on the role of volunteers in our society. I
congratulate him for that, as I congratulate General Colin Powell
and former President George Bush for their participation. But if
the President wants to do something substantive for volunteers in
this country, I would urge him to support legislation protecting
them from frivolous lawsuits.
That is the intent behind the Volunteer Protection Act,
legislation authored by Senator Paul Coverdell (R-GA), Senator
Mitch McConnell (R-KY), and myself. This bill protects volunteers
from liability when they have acted properly or in simple
negligence. Volunteers who truly exceed the bounds of appropriate
conduct should be liable, but in the many ridiculous cases where no
wrongdoing occurs, they should not face lawsuits.
In lawsuits based on the actions of a volunteer, the bill limits
punitive damage awards to cases in which the volunteer acted
willfully or criminally, or showed a conscious, flagrant disregard
for the rights and safety of the individual harmed. This should
ensure that punitive damages, which are intended to punish a
defendant and not to compensate an injured person, will be
available only where the defendant's conduct merits punishment.
The bill also protects volunteers from excessive joint and
several liability. It provides that the defendant volunteer,
nonprofit, or government entity will be jointly and severally
responsible for the full share of economic damages, but for
noneconomic damages only in proportion to the harm that defendant
Finally, this bill was drafted to respect the role of the states
in our federal system. It does not preempt state legislation
providing greater protections to volunteers. Indeed, it permits a
state, in cases involving only parties from that state, to enact a
statute opting out of the Volunteer Protection Act altogether.
Probably no states will do so, but respect for federalism demands
that they be given the option.
These reforms can help create a system in which plaintiffs sue
only with good reason, and sue only those responsible for their
damages--and in which only responsible parties must pay.
Such reforms will create an atmosphere in which our fear of one
another is lessened and our ability to join associations in which
we learn to care for one another is increased. And that will make
for a better America. Protecting volunteers and restoring public
rules discouraging lawsuits will help shore up the customs of
mutual trust and aid crucial to our unwritten constitution.
There is one final element of our Conservative Constitution that
I would like to address: order. Kirk often said there can be no
freedom without order. Yet for years we have allowed criminals to
undermine public standards and endanger our public through improper
interpretations and expansions of their rights.
Last year, I sponsored the Prison Litigation Reform Act. The
PLRA, which has become law, was designed to rein in frivolous
prisoner lawsuits and needless prison micromanagement by federal
judges. Over 95 percent of prisoner lawsuits are found to be
without merit, but they divert an enormous amount of state and
local time and resources away from incarcerating dangerous
offenders. The National Association of Attorneys General estimates
nationwide costs at $81.3 million. At one point, there were more
prisoner lawsuits in this country than there were criminal
To halt frivolous inmate litigation, the PLRA penalizes filers
of non-meritorious cases. It also limits attorney's fees to
reasonable levels and to cases in which a prisoner's rights have
actually been violated.
The PLRA also limits judicial interference in our prisons.
Prisons in some 39 states, including 300 of the nation's largest
jails, are being micromanaged by federal courts at huge public
expense. The court orders, including one rising from a lawsuit
against the Michigan prison system, regulate everything from how
warm the food is to whether prison barbers are licensed; they are
undermining the legitimacy and the punitive and deterrent effect of
Even worse are decrees that "cure" prison crowding by releasing
dangerous criminals. The most egregious example is in Philadelphia,
where a federal judge for eight years oversaw releases of up to 600
defendants per week to keep the prison population at an
"appropriate level." Even a murderer, if his current arrest were
for a "non-violent crime," was freed pending trial--and "non
violent crimes" included stalking, carjacking, drug dealing,
manslaughter, and terroristic threats. Thus, tragically, in one
18-month period alone, 9,723 criminals out on the streets because
of the cap were rearrested for new crimes, including 79 murders,
959 robberies, 2,215 drug-dealing charges, 90 rapes, and 1,113
All of this would be bad enough if the order were needed to
correct serious constitutional violations. But it was not. A
different federal judge recently found that conditions in what is
widely regarded as Philadelphia's worst facility--Holmesburg
Prison--met constitutional standards.
Convicted criminals, while they must be accorded their
constitutional rights, deserve to be punished, and law-abiding
citizens should not have to pay for prison comforts required by
neither Constitution nor law merely because a federal judge finds
The PLRA forbids courts from entering orders for prospective
relief (such as regulating food temperatures) unless necessary to
correct violations of individual plaintiffs' federal rights. It
also requires that relief be narrowly drawn, use the least
intrusive means, and take into account any adverse impact on public
safety or operation of the criminal justice system. And the act
forbids courts from releasing criminals unless they first ordered
less intrusive relief that failed to cure the violation of federal
rights. Just as important, old prospective relief orders will be
terminated unless the court finds that the original rights
violations still exist.
These reforms will decrease prisoner lawsuit abuse, return order
to our prisons, and keep dangerous criminals off our streets.
Indeed, early figures indicate that prisoner lawsuit abuse is
already on the decline. The prison reform model is working. It has
succeeded in putting rational restraints on judicial power. It
shows, I believe, that we can rein in judicial activism. In light
of that, I believe we should look to this model in passing further
reforms to correct other instances of judicial overreach, and I
will be working on this in the near future with my colleagues in
These reforms can help us regain our determination to punish
crime and maintain public order, both of which are necessary if we
are to protect our people and maintain the fundamental peace and
stability necessary to the survival of any community.
Order is necessary for society to survive, but it would be
inappropriate to end a Russell Kirk lecture on so negative a note
as prison behavior. Instead, I would like to point out an obvious
fact that we in the conservative camp are too likely to overlook:
Our Constitution has survived the trials of a growing,
industrializing nation, of a Civil War and two World Wars. It will
survive its current crisis--the onslaught of judges who fail to
respect its meaning and intent-- provided we retain our faith in
it, and in the fundamental unwritten constitution of our
So long as we are willing to fight for the fundamental
principles that made our people the great, free, and ordered nation
we still are, renewal will be ours, and we can reclaim the
Conservative Constitution that is our patrimony.