The D.C. Circuit held its Bench and Bar Judicial Conference in Colonial Williamsburg on June 23-26.  In addition to the obligatory session on AI (led by Stanford’s Dan Ho), a review of the Supreme Court term (with Irv Gornstein, Kelsi Corkran, Roman Martinez, and Jeff Wall), and moving tributes to recently departed judges (Judge Urbina by Judge Contreras, Judges Green and Collyer by Judge Friedman, and Judge Buckley by soon-to-be Chief Judge Millett), there were panel discussions examining the major legal developments from the Founding to today. 

The Conference also included a dinner at which the American Inns of Court presented me an award.  What follows is based on the remarks I offered in response on how best to celebrate America 250:

I am grateful to the American Inns of Court for this award.  Seeing my name among the prior recipients brings to mind the Sesame Street song, “One of these things is not like the others.  One of these things doesn’t belong.”

The American Inns of Court has been a leader in showing the legal profession the importance of civility in discourse, especially when we disagree about vital matters.  In a recent op-ed, Alan Hurst, who argued in the Supreme Court the contentious issue of whether states can limit transgender students to participation in school sports based on their biological sex, described the contrast between what took place in the Court and the shouting match that took place outside the court.  The former was marked with vigorous but respectful disagreement.  The latter was full-throated enmity.  As lawyers and judges we are ethically bound to carry on our disagreements over the most contentious issues with civility.[1]  We use reasoned arguments, not bullhorns.

But civility is only a good start.  Arthur Brooks remarked, “Tell people, ‘My spouse and I are civil to each other,’ and they’ll tell you to get counseling.”[2]  Today we need more than civility.

It is my view that the Constitution is hanging by a thread.  But I’m not referring to the threat posed by a muscular exercise of Executive power or the supine response of Congress.  I am concerned about both those, but I have confidence that the judiciary will play its role in defending the separation of powers and that the electorate will exercise good judgment.

I’m referring instead to an existential threat posed by the toxic polarization that has seeped into every nook and cranny of American life.  The polarization we are experiencing today is different and more dangerous than the divisions we faced in earlier generations.  Social science research reveals that large majorities of both Democrats and Republicans think that those on the other side of the aisle are not just mistaken in their policy preferences; they are evil.  The United States is the only industrialized nation in which a majority of its citizens think that most of the people in the country are bad.  The Constitution can withstand vigorous disagreement.  It was built for that.  But, as the late Michael Gerson warned, the Constitution cannot withstand a citizenry that holds one another in contempt.[3]  Today in America contempt has replaced disagreement.  The Constitution will not survive this polarization unless it is overcome.

Yesterday, we heard Jane Kamensky, President and CEO of Monticello, tell us that the “civic friendship” between Thomas Jefferson and John Adams in their later years is a model for what is needed today.  Political scientist Matthew Holland calls this “civic charity,” and argues that this virtue has always been a strain in the American DNA from the Massachusetts Bay Colony, through the Founding, on to Lincoln’s two Inaugural addresses and at Gettysburg, and then with the ministry of the Rev. Dr. Martin Luther King, Jr.[4]

Derek Webb of the law school at Catholic University has written that “civic charity” was present at the Constitutional Convention in 1787.[5]  We know the story.  In July the Convention was failing.  Delegates were threatening to leave Philadelphia and abandon the project.  Yet by September 17, they had created a constitution that has survived for almost 250 years.  One popular history calls this Miracle at Philadelphia.[6]  I believe in miracles.  There was the 1969 Mets and the 2019 Nationals.  As a Christian I also believe in religious miracles.  But as I understand it, a miracle is something that defies rational explanation.  By that definition, no miracle took place in Philadelphia that summer.  We know how the Constitution was created.  The Great Man himself told us.

In George Washington’s letter transmitting the Constitution to the Continental Congress, he explained, “This Constitution . . . is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensible.”[7]  Amity.  Mutual deference.  Concession.  These are the virtues that created the Constitution.  They are the virtues that can rescue the Constitution today.  The “peculiarity of our political situation” at this moment in time renders these virtues “indispensable.”

For most of my life I thought that the Constitution was primarily about protecting rights  — freedom of speech, religion, the press and others — and limiting government overreach through the separation of powers.  Those are fundamental components of the Constitution, and we must be ever vigilant to protect them.  But I’m now of the view that there is something even more fundamental at work in the Constitution, and I credit Yuval Levin in his landmark book, American Covenant: How the Constitution Unified Our Nation — And Could Again.[8]

According to Levin, the most important feature of the Constitution is that it shows us how to work together when we disagree.  Under the form of government the Constitution creates an electoral victory is not a license to dominate.  It only gets you a seat at the bargaining table.  The real work of our democratic republic takes place at that bargaining table.  The Constitution calls for a new type of citizen — one who is willing to understand what his political opponents care about and is willing to compromise with them for the sake of unity.  

The finest and most succinct expression of this insight I know comes from Dallin H. Oaks, who, after clerking on the Supreme Court for Chief Justice Earl Warren went on to be a tenured professor at the University of Chicago Law School (where he taught my colleague on the D.C. Circuit, David Tatel), a university president, a state supreme court justice, and is now an ecclesiastical leader.  “On contested issues,” Oaks said, “we should seek to moderate and to unify.”[9]

There are, of course, limits to what we are willing to compromise.  We are a creedal nation committed to liberty and equality, and although we will have vigorous debates and discussions about what liberty is and what equality means, we will not give up on those ideals.  Even though we have never fully realized these aspirations, we will not cease trying.  Arguing about what they mean is central to their effort.  But we must carry on those debates and discussions treating our opponents with the dignity they deserve simply because they are human beings created equal by a God who has endowed them with the unalienable rights of life, liberty, and the pursuit of happiness.

We must never lose sight of what our greatest president urged upon us at our greatest moment of national peril, when the cause of democracy was on the brink of failure.  Standing on the steps of the Capitol, the symbol of our Nation’s commitment to the Constitution, Abraham Lincoln declared, “We are not enemies, but friends.”  Then he implored, “We must not be enemies.  Though passion may have strained, it must not break our bonds of affection.”[10]

Civility is a good start.  It’s a necessary start.  But what is most needed at this moment of national peril is lawyers and judges who will work to restore and strengthen our bonds of affection.  We have all taken an oath to support and defend the Constitution of the United States.  I can think of no better way to fulfill that oath than to restore and strengthen our bonds of affection across the political lines that divide.

Here is an assignment for all of us, myself included.  After we’ve watched the fireworks, cheered on the Nats, and eaten our hot dogs this Fourth of July, find someone who sees the world in a much different way than you do.  Take him to lunch.  Pay for that lunch.  And after your food is delivered, begin the conversation by asking, “So, what do you think?”  Then listen.  Just listen.  Listen, not to prepare an argument in response.  Listen to understand the hopes and fears of your fellow citizen.  That’s how we strengthen our bonds of affection.  That’s how we support and defend the Constitution.  That’s how we do the hard work of “form[ing] a more perfect union.”[11]

May God bless us, and may God bless the United States of America.

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[1] Alan Hurst, I Argued the Recent Transgender Sports Case at the Supreme Court. Here’s What Stood Out, Deseret News (July 2, 2026).

[2] ARTHUR C. BROOKS, LOVE YOUR ENEMIES: HOW DECENT PEOPLE CAN SAVE AMERICA FROM THE CULTURE OF CONTEMPT 12 (2019).

[3] Michael Gerson, Opinion, A primer on political reality, WASH. POST (Feb. 19, 2010).

[4] MATTHEW S. HOLLAND, BONDS OF AFFECTION—CIVIC CHARITY AND THE MAKING OF AMERICA: WINTHROP, JEFFERSON, AND LINCOLN (2007).

[5] Derek A. Webb, The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention, 64 S.C. L. REV. 183 (2012).

[6] CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF THE CONSTITIONAL CONVENTION, MAY TO SEPTEMBER 1787 (1966).

[7] Letter from George Washington to the Continental Congress (Sept. 17, 1787).

[8] YUVAL LEVIN, AMERICAN COVENANT: HOW THE CONSTITUTION UNIFIED OUR NATION—AND COULD AGAIN 10 (2024).

[9] Dallin H. Oaks, Perspective: Our Inspired Constitution, DESERET NEWS (July 30, 2021, 10:00 PM MDT).   

[10] Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in THE WRITINGS OF ABRAHAM LIN-COLN 324, 332 (Steven B. Smith ed., 2012). 

[11] U.S. Const. pmbl.