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tv   Book Discussion on The Road from Runnymede  CSPAN  February 14, 2016 1:30pm-2:31pm EST

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rights. amount of applause for the bill of rights. [applause] and jeffrey rosen, president of this wonderful institution, the national constitution center, which is the only jewish in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. and we have a thread in bill of rights. we've got a block buster show up for marvelous books about the bill of rights. do it here about the origins of magna carta, about madison note and as absurd to change his own role in the drafting of the constitution. you hear about the value dissent and a great book trying to channel the writers of the federalist papers and imagine what they would think about and controversies it is a wonderful
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substantive day. i'm so excited to introduce bill of rights by introducing you to a mac sent new interactive tool for constitution of center launched on constitution day and is now thrilled to distribute to every student in america from 1880s. i want all of you in our great c-span viewers to follow along with me as i show you this remarkable nonpartisan tool and tell you what it can do and also the perfect introduction to her first panel about the relationship between the magna carta. it is an exciting project between three great organizations. the federalist society, the american constitution society and the college board that has made this a centerpiece in ap history government exams. what they've done with the help of our great partners is to ask
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the leading scholars in america from every perspective, liberal and conservative and everywhere in between to write about every clause of the constitution and what they disagree about. you can be confident when you read the statement about what the scholars agree about, this is a bulletproof bipartisan statement in which scholars of the divergent actives agree. a unanimous supreme court opinion. the separate statements are like separate concurrent dates. here we have not only the first bill of rights, but all 15 amendment building up the rest of it the next two years. let's begin with the fifth amendment, which includes what is called the due process clause which says no person should be deprived of life, liberty or
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property. what is the core of meaning for historic sources of that clause? you can click on the common statement and see roger fairfax and john harrison, two of the leading scholars of the due process clause telling you, and i'm ready now, the principles of government should be limited in how it makes it deficient is very old and anglo-american law. the magna carta, and it became well known over the centuries chapter 39 provide no freeman shall be arrested except for lawful judgment of peers with a lot of land. this language gave rights to due process. read the rest of the statement in your hear about the development of the due process clause. and you can read professor fairfax and harrison with their disagreement about how the fifth amendment should apply today.
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that is not all. with this great tool you can not only explore the actual revolutionary era constitution as well as english common law that gave rise to the due process clause. you can click on writing right now we want to begin with the fifth amendment because that is the one we're talking about. and you will see the authoritative sources that james mattis and provide done when he wrote the bill of rights. he cut and paste from revolutionary state can't tuition and from english common law sources including the magna carta. here we can click on the magna carta and see article xxxix to be seas of his free customs or outlawed or eggs i'll were any other wise destroyed. nor condemn them by lawful judgment and the law of the
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land. they trace back through madison's first proposal, which doesn't look exactly like the fit amendment. here it is. the due process clause should not be a witness of himself, nor deprived of life, liberty and we can compare madison's first proposal, which does contain the language. and you can watch it as it moves through the senate and through congress and ends up in its final form. it is also language arts and i hope students from eight to 80 can engage and carefully follow the evolution of this great principle. this one exciting thing this tool can do. we are at it started agreement
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or disagreement. we move back in time to see its roots in the magna carta and revolutionary state constitution which has a phrase that no one can be tried at the liberty except by the laws of the land. isn't it interesting 1776 cents language which sounds even more like article xxxix of mac card and the final draft of sentiment else. not only can you start with the president then go back in time, but now you can trace the spread of these celebrities across the globe and in this astonishing final platform around the world, you can click on the due process guarantee which is right here and you will see the due process clause and then you can see every other country in yellow that has a version of the due process clause. if you click on the united
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kingdom, you'll find the magna carta article xxxix of health as well as the human rights act of 1998 which says no one shall be deprived of liberty dated in the following cases and gives examples to compare the historic sources at the contemporary duration. and then you can click on other countries that protect you process this file including germany which in the court every person shall be entitled to a hearing in accordance with law. how wonderful it is to see international does yours to the constitutional center see this platform which you can access in our beautiful bill of rights gallery which has a right that interest them in the american constitution and compare it with the way their constitution is an exciting new cons draft in mind that google has helped support at the constitution center bringing together drafters of constitution as to compare with the way these rights are protected.
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it's an incredible tool. we hope it will transform and we want to bring it to every student in america. i want you in our secret or check it out. dig deep into it. compare the historic contemporary and international sources about right. tell us how we can improve it and let's work together to transform constitutional education. i enthusiastic -- and as you can tell when i am on the spot for very fired up. it is now made and honor to introduce magna carta in america. we are so lucky to kick off our bill of rights day. we have been answered to get into the constitution center for a long time and there is no more auspicious moment or distinguished scholars and to begin our proceedings today. he is the way burkett miller -- university of virginia school of
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law. burroughs scholar and law clerk on the supreme court, one of my favorite justices. one of my sons is named hugo. they were twins on the floor so we picked yuko. he's a hero because hugo black really believed in forcing the constitution and he believed more than anyone else. professor howard has federal bodies. it's often consulted by draftsmen another's date and he has held draft can't additions in brazil, hungary, czechoslovakia, real internationalist baseman. he preached in argued cases before the supreme court and it many books and articles include the magna carta and constitutionalist son in america. ladies and gentlemen, please join me in welcoming professor
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a.e. dick howard. [applause] >> thank you. that was an enthusiastic introduction. i can pick up my classes at the university of virginia with this state of enthusiasm. just as certainly alerted you to the reason why we are turning the bill of rights magna carta and otherwise the idiosyncratic choice of british and english document 800 years ago and what they got to do with the bill of rights. the road to the bill of rights really begins in many ways with magna carta. as many of you know, this is the 800th year since the magna carta was first agreed to and indeed the 15th of this year, the exact anniversary date. i come back with a sense of what the english were celebrating it.
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it makes great sense they would be making a lot of anniversary. the question i want to put to you is why should we care? why should we care about the reluctant john and the aggressive view at 1215. well, the story takes us back and begins with king john himself. i didn't really meet king john. [laughter] my students think is the philadelphia convention. but i was first introduced the idea of king john when i was a kid and my parents would read to me and one of the books, the winnie the pooh -- i'm sure many of you are winnie the pooh fans. he also wrote a wonderful book called now we are six. if you don't know that book for your children and grandchildren, it is a wonderful read it one of the poems in there is king john's chris ms.
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that point begins something like king john was not a good man. sometimes no one spoke to him for days and days and days. well, when you are a little kid, be shunned like that nobody was good to you, this is pretty bad. well, i grew up, i said nobody can be as bad. i grew up and started reading about john. maybe worse. he certainly was morally corrupt. it's no accident that no king of england has ever been named john since king john and there never will be one. he was not only morally bankrupt, but also the most inept king perhaps in history. he was a terrible military leader. he lost most of the landholdings
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and over the appointment of the archbishop of canterbury he finally had to give in to the pope's wishes. the townspeople were interested in the town of london. but above all, he made enemies themselves. these are the makers and shakers of their time. he was always leaning on them to finance his military adventures and the like. he would talk money from them in ways that were not established english price is. finally, they all ganged up on him and the rest of was june the 15th for the bearing presented their demand and john roller delay acquiesce. i am not going to walk you through the provisions of the magna carta and most of us about things that need not concern us,
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but the centerpiece of magna carta is the one that jeff hardy pointed to and that is what was called chapter 39. that is the one that provides that no one shall be preceded again except by the law of the land. the law of the land came with a century or so after the magna carta to the interchangeable with what we today call due process in the law. so when you read this it and 14th amendments, the process clauses you will see a can't do it which is right back to magna carta. that is where it all started. magna carta, got to annul magna carta. and if that his father was, we wouldn't be talking about time the card. the king john died the next year. one of the chronicles with
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peaches into cider. you are going to play that way. his successor, henry the third is 90 years old. this is the middle ages. what he said to be to his majority, maybe so, maybe not. a faulty "game of thrones" come you know of thrones coming out that period of history was like. this region, william marshall hit upon what i think we would call it public relations gesture. let's get this young print to reissued magna carta. he did not and that set in motion a tradition that excessive english monarchs would begin their reign by reissuing
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magna carta is a sort of statement of good faith. so that is where it begins. one of the issues a century or two after the magna carta, a statute was passed, basically an instruction that said if magna carta that he would prefer magna carta. magna carta was thought to be better than their superior. that begins to set in trade promotion that today we would call constitutional supremacy. they were already beginning to emerge as early as the middle ages in england. i'm going to pass over i guess the reign of henry viii has never been thought of as a great constitutional government, certainly they wouldn't have
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felt that. let me jump over to the 17th century. this is a century in which of course the first permanent english-speaking comments were planted in this continent. it's also in england the turbulent period of civil war of conflict of every kind. i think it must've been a dreadful time to live in england because i take it the civil war the civil war in and then the status civil war in this country. the century began in constitutional terms when queen elizabeth died and the crowd went to james the sixth and became james the first. so the house of stuart came. james brought with him a can't that of the divide right of kings. you can mention that was not accepted as a traditional
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english precept. it was on a collision course. one of the leaders of the parliamentary opposition and his pretensions was sir edward cooke pronounced coke -- spelled coke, but pronounced coke. sir edward coke was the leader of the opposition. during debates in parliament, the king's prerogative that magna carta is such a fellow, in other words, even the king was limited with the precepts of magna carta. it was a determinate century and the execution of charles the first, which brought into being the commonwealth. you and i live in commonwealth
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virginia. that name has its early origins in the 17th century. well, after the regime, they came back and asked in dixie. struggles continued. there is still debate and finally historians use to call the glorious resolutions which brought william and mary to the throne and put an end to the charles says and will you marry is a part of the constitutional settlement agreed to the great english bill of rights. 1689 and the bill of rights in england, which in so many ways prefigures anticipate for our bill of rights if you later to document side-by-side u.s. the provisions of the english bill of rights. word for word a bird can't do to shame. that is what was going on in the
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17th century. let me at that point take the story over to the american side because as i've mentioned with all this constitutional refiguring was going on in england in the 17th century, the american colonies were getting their start. each one had a charter. virginia, for example, 16 of seven operated under the virginia company charter 16 s. six. most of the charter about commercial matters and everybody thought they would get rich discovering old and older. if university of virginia lately, you are not likely to see a great deal of gold and silver. but aside from all the commercial provisions, the most interesting mind in the virginia charter guarantees to those who emigrated to virginia the privileges, franchises and
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immunities that these colonists would have enjoyed. so the idea was to much of this wilderness called virginia. you didn't leave your price behind. now one might fairly debate the content of those right are clearly did to conclude that guarantees that the magna carta. i can tie your stories which time i'll permit this morning, but a number of stories of ways in which columnist during the 17th century and places like massachusetts, here in pennsylvania and elsewhere insisted on the rights of magna carta and struggles with their own governors and their own court and colonial institutions. so magna carta and the english common law would be thoroughly infused into american law. not surprisingly. so magna carta has become a part of the common language of
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american law and constitutionalism. in the 17th century, let me then suggest how we get on the early period to the revolutionary. starting in about 1960s, the pot was boiling and a famous case was argued in 1761. arguing the famous ritz of assistant case and he was representing austin merchants who are objecting to certify general search warrants that were not limit it. they wouldn't satisfy today's fourth amendment requirements. they basically allowed officials to go in and search the house for anything they are willing to do. they said this is not constitutional. at this point, there was no written constitution.
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but he was making a case that today would recognize the constitutional case and decided sir edward cooke back in the early 17th century. cook had decided the case in 1610 and admit the language set an act of parliament between right and reason. that doctrine never really took hold. by proclaiming to be part of the fabric of british constitutionalism in opposing assistant. in london, the cabinet couldn't make sense of argument. by this point you have commentaries. and in it, black sense of
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parliament calls the shots and he didn't recognize traditional or constitutional limitations of what parliament could do. parliament might pass crazy laws and moral laws, unjust laws, but they were laws. they were saying their constitutional to what parliament can do. you have on the two sides of the atlantic to quite opposing points of view. it's no wonder that the revolution finally came about because the english and americans were really talking past each other. now, the stamp act was passed in 1760s. the first-time parliament had sought to impose an internal tax and no have the american colonists reacted to that no taxation without consent. they also complained the trust
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of these cases would be admiralty court and the right to trial by jury was one that americans chased back. the sons of liberty through the tea into the boston harbor. the british coast ports abbas then. they quarter troops and they have a colonial assembly. these actions which the colonists called the coercive or intolerable acts sparked cooperation on all the colonies. the other colonies came to the sport of massachusetts in the continental congress. and that process, by way of resolution.
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how was it that we americans have these right there where proclaiming against the british. there is manchester debate that went on. we have to point to the charter language but one i just quoted. others said we had to put a non-magna carta and others said it's natural right. is the will of god. these are different ways of thinking about right. but america doesn't apply to people choose one or another. the system altogether in one basket. they base these claims of right and all these different sources. the lawyers to study law and american constitutional law to be messy. we've done it that way for a long time. we are not like the french were very analytical and organize.
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so that was the cotton on the congress and its resolution. with the beginning of the revolutionary war in williamsburg, virginia may 1776, the convention that was making the lower house of the legislature dissolved by the governor, said they simply went across the street, and his folks were the ones who in may 15, 1776 and struck it the continental congress in philadelphia to introduce a resolution. so the resolution that finally became a factor in july of that year began in williamsburg in may of 76 and on the same day that they passed the resolution, the virginian set to work on a
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constitution for virginia. actually, they set to work on two documents. first a declaration of rights, which again owe so much to the english declaration and having passed back, then a frame of government for the body of the constitution. the importance of the tooth that process. job law. social compact. the notion of people enjoy inherent natural rights before they frame the government. those right to pay an independently of a government. so social compact has concrete form in the virginia two-step process. .. to be the branch of
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government closest to the poplar will. in the process, one of the people that com plained about have virginia legislation was thomas jefferson. it is written into my contract that i cannot give a speech out a reference to thomas jeffson. so it will be recorded i made
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that reference. thomas jefferson hated that first constitution. my theory is he hated it because he wasn't there. his objection was that the same body of men who is making ordinary laws for virginia also reported to make the constitution. he said if they can do that they could unmake it. it is simply no more than another law. you want a separate body to make a constitution which is superior to ordinary law. what we did not do in virginia in 1776 i have to give credit to my friends in massachusetts. in 1780, they called a constitutional convention elected with delegates elected by the people, expressly to write the constitution and went to the people t in referendum for radification. americans at that point -- ratification -- invented
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something the europeans didn't. it is an american practice that transforms the way we make constitutions in this country. a vote of gratitude to my friends in massachusetts. i was up there giving something called the james odis lecture and i was imprudent enough to suggest my friends in massachusetts are very good at words. we know john adams and all of that. but they are not so good at numbers because they don't understand 1607 comes before 1620. so you get to the stage -- state constitution which is federal law. the federal convention, 1787, as you probably know there is no
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notes about this, and i may be wrong, but i am not aware of anyone mentioning magna carta in the debates in philadelphia. if i think it is such a big deal how come it would not by part of the debate in philadelphia? assuming it wasn't, and i was able to query my federalist friends, why didn't you talk about magna carta i think their answer would have been magna carta was an adjustment of power between the power of the king. we are setting up to create a new government. that is a totally different enterprise. and i think they would argue magna carter limited justice order and we are writing to limit all government branches. and he would have said magna carter was in effect a grant by
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the king to the other people in england. we are writing a constitution founded on poplar sovereignty. we the people. i think they would have distinguished whatever their intellectual reasoning and i am sure you know the nearly fatal mistake in filled was not including the -- philadelphia -- the bill of rights. there was a petition by george mason and others too a bill of rights that was rejecteded and of course that created a center of opposition which came to be known as the anti-federalist camp who said look at the new constitution. no bill of rights. they are not recognizing our rights. james madison was a good enough politician to say okay, i get the point. just ratify the constitution and we will undertake it the first congress to add a bill of rig s rights. he was as good as his word,
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wrote out proposals from the state and those proposals became what we call the bill of rights today. so we have a constitution, a bill of rights and what we have at this point if you step back and think about the respect played by the british tradition in the magna carta and the english bill of rights and the american ideas on the other hand. i think you have an interesting blend of american innovation, american federalism had no direct counter european part, judicial review. if you look at global constitution perhaps america's most important contribution. innovation on one hand but tradition on the other. ideas like due process of law, cruel and unusual punishment, a number of perception that owe
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england. how do i sum up magna carta? what does it have to say to us? first,i think it is the iconic example of what we would like to call the rule of law. that is a phrase that american lawyers love to talk about. they are very proud of it. it is not self-revealing than one might think. i was at a meeting in what is now st. petersberg working with the first draft of the soviet constitution. i think it was 20-odd years ago but seemed like a long time ago. those were the days we thought russia might join the liberal constitutional democratic countries but in the age of
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putin that is not happening as far as i can see. at any rate, in my discussions i don't speak any russian so we were work through a translator and i discovered she was rendering the english phrase rule of law as socially delicate. well, i had to say that is not exactly what we in the west mean by rule of law. second legacy of magna carta is the articulation of fundamental rights. in all of my travel i know of no country where talk about rights or the language of rights is so c conspicus. when we have a problem we show up in court. we are good at turning garden varietys into lutes. sometimes i think our national motto ought to be something like
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i will see you in court. fundamental rights. and thirdly, put it in writing is an anglo-american tradition of the documents i have been talking about starting with magna carta to the bill official right do is the constitution. it here in america that we take written documents seriously. partly perhaps because of the religious influence with biblical teachings and the like is perhaps another subject. fourthly, and i think this one really matters in terms of the influence of magna carta, and that is it put us on the road to the notion of constitutional supremacy. i told you about the quote from lord cook that said even
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parliament or legislative bodies by extension are limited by the constitution. it is an idea that takes you finally to john marshall's opinion 1803 in marberry versus madison. those of you who have stood in law may first remembering reading marberry and you may have been struck by the fact that of the notion if you are going to write a constitution you must mean for it to be superior to ordinary law. as if that is self-evident. and later in the opinion, we have an after thought, he said oh, yes, by the way there is article six of the constitution. this constitution and all laws inacted in pursuant to their own shall be the supreme law of the land. -- enacted -- in marshall's time
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the general principles were so self-evident to him because he had great authority. finally, you are talking about magna carta's legacy and i think there is the tradition of an organic evolving unfolding constitution. i am looking around the room and don't see justice skalia here. if he is i might be more careful of what i had to say. he might be tempted to come beat up the lecture. it brings us to what today might be called the living constitution. those are the words i think justice scalia might not like to here. but when they object to it it is there. it is so much a part of the way we do constitutional law. cruel and unusual punishment has never been limited to what it meant in 1971.
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i think for example of cases decide by the supreme court as late as 1989 where the court rejected the argument that capitol punishment for youthful offenders or another case for the somewhat mentally retarded violated the 8th amendment. in 2003-2005 the court overruled those precedents and ruled there was a violation on cruel and unusual punishment. there is a more dramatic example. thinking about the due process clause. if you know something about the system, is there any example in constitutional history of a valuable concept that could change the service of more
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things over the years. >> let -- let me read you a couple lines from justice kennedy in lawrence versus texas. this is striking down the sodomy law. at the end of the opinion, justice kennedy said those who drew can and ratified the due process clause did not presume to know the components of liberty. the times can blind us to certain truths and later generations can see that laws once thought necessary and proper serve only to oppress. as the constitution endures persons in every generation can invoke its principles in their own search for greater freedom.
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so that say justice kennedy, lawrence versus texas 2003. it is therefore all the more intriguing if you look at the same justice's opinion in the case from this year, the same-sex marriage case, all of you know about. at the end of that opinion you find that identical language. normally when you find that language in one opinion from another it will be in quotation marks with a citation. not here. he just says it. he doesn't tell you where it came from. but it is clear he is using the same language. the way i think about this is it has become for justice kennedy such an obvious statement of the law he doesn't have to reference who said it. there you have some notions of justice kennedy and due process of law. finally, before i wrap all of
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this up, a word or two about the documents called magna carta. where are they? there are 17 copies of magna carta from the year 1215-1297 when it went on the statutes books of england. four copies of the original '15 charters. two in the british library, one at lincoln cathedral and one at salisberry cathedral. they are all in england except for two. one is in australia and one is at the national archives in washington. one of the 1297 charters. i was on a plane flying to england and my seat mate was a lawyer from texas who was ross perot's person lawyer and he chatted. he told me the family of ross
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perot wanted a copy of magna carta. they finally struck, this was back in the 1980's, a deal for $1.5 million. in the 1980's that was a fair amount of change. i said that is interesting. how did you bring it over to this country? surely england has laws of exporting patrimony and the like? we said i took it, rolled it up, and put it in the mailing tube. and i said you put this priceless document into mailing tube? and he said yes, i did. then i went to the airport, like heathrow airport. what did the custom agents ask? and he said yes, they asked what was in the copy of the tube and
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he said i have a copy of the magna carta and they said go on through. i said okay you got it through customs and you on the airplane. and he said i put it in the overhead bin. somehow this document survived. maybe this is the way they do things in texas. they rough it. it survived the trip. in year's past and i guess ross perot decided he didn't need the copy of the magna carta and put it up for auction. another man, david stein, heard about it and bid for it. after the bidding finished the price was $21.5 million. now you know why he has a lot of money. even from inflation that is a
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nice profit. so the national archives gave me a call saying professor howard would you give a talk on the occasion of the instillation of this copy of magna carta on permanent loan at the national archives and i said i would be happy to do that. i open up the "washington post" -- the week before the "post" has a box with three or four things you might like to know about that are happening in washington next week. this particular thursday it said on tuesday, march 10th, at 7:30 p.m. at the national archives professor dick howard from the university of virginia will talk about magna carta and his book and his purchase of a copy of magna carta for $21.5 million.
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so i read this thing and i came home that night and i told my wife, i said mary, we are going to start getting some interesting telephone calls. we are going to get invited to fanc fancy dinners and receptions. i said don't ask any questions. just say yes. that copy is on display up there. you should, if you have noticed it, next time you go into the archives it is like you are going into a cathedral. it is i would submit very much a part -- it is at the very core of american constitutionalism. we don't live in the middle ages and are not worried about kings but those ideas that were given birth to are very much with us. i invite you to think about that
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as we start your celebration of the bill of rights today in philadelphia. thank you so much. [applause] >> i understand we have a few minutes for questions. there is a microphone right here. there is only one on this side. but if anybody cared to challenge me on english constitutional history or whatever sin your mind. >> with the bill official rights, there were originally more than ten, what were the other two and why were they not adopted? >> what were the other two? okay. i have a non-answer to the first question. some other expert on the bill of rights today will have to answer that. we will pass on to maybe one i can answer. this lady on the aisle over
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here. >> on the amendment that talks about the right to bear arms -- >> yes. >> was that intended for individuals or did the founders mean the militia? >> how can we not talk about the second amendment. the conventional wisdom for years including a supreme court case in 1939 was the right to bear arms was a collective right. it was this way until a challenge in washington, d.c. to a local ordinance restricting having arms. and in the district of columbia versus hiller the court ruled the majority held it is an
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individual right. if you want to know my reaction to that opinion. i think it is bad history. i think the language itself invites you to think of the right in collective terms because it begins with a prefteral phrase about maintaining state militias and talks about the right to bear arms shall not be infringed. i think the english notion of bearing arms suggested we don't bear arms individually we bear arms collectively in the militia. but i am a law professor not a justice. i didn't get to vote on it. but i can respectfully agree with the majority. both sides in that dc versus hiller case the majority started with history. in a sense the originalist, those who think we should go to
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the original meaning, seemed to carry the day because they started the history, but it reminds you how history is made by the lands of lawyers and judges. one of the weakeness -- weakness of the decision is such. may i say the court got it wrong, but the opinion justice skalia wrote i think was written to keep the other four justice in the majority because all it says is you have a personal right in your home to have traditional weapons. it leaves open any number of questions about registration, gun shows, guns in schools, and on and on. lots of questions like that.
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so this is like so many supreme court constitutional cases they tend to open as many questions as they answer. it is wonderful annuity bill for american lawyers. keeps us going. another question? there we are. right there. >> considering the influence and power of the magna carta and the english bill of rights how do you explain the english don't have a written constitution? >> i was in england in june giving lectures and the most common question asked was should the united kingdom have a written constitution. and i said i am an american v t visitor. but i would be happy to help you write it. the response is we have
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tradition, custom and convention. we know how to do things right. there are concern ways that english people do and you americans might need a written constitution but we really don't. i think that answer is more tentative and undermined by circumstances in the uk today. they are much more diverse population than they used to be. diversity leads to minorities and leads to discrimination and questions like that. they are also now part of the european union. they have the european convention on human rights which sets out norms and invites thinking in constitutional terms. what the british have done is a way station between no constitution at all. a full-fledged document like the one we have. they have the human rights act of 1998 which instructs english judges they may find an act of
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parliament to be incompatible with the european convention. all they can do is tell the government this act is not constitutional in the european terms. it is a political directive in effect to the parliament to clean up the statute. yes, sir, right here? >> to the point you just speaking of, if cook's premise that magna carta is supreme is true and the divine right of kings is dead, why does the sovereign upon accepting the crown have to reissue the magna ca carta? >> that tradition of reissuing persisted for decades. once you got past the 17th century, what the english bill of rights and the glorious revolution accomplished was the restructuring, it is basically the foundation for the modern
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british constitutional system in which sovereignty lies with parliament. parliament is the center of the enterprise. up to 1689 it was possible for sovereign to claim certain prerogatives of distensing. if you were a favorite they could say you have a get out of jail free card or suspend the law. that all ended with the english bill of rights so magna carta becomes a treasured ancestor but not part of the working fabric of british constitutionalism. >> the reissuance of it represented the tension that was around? >> that is right. they were reissued as long as the crown had power. they are prerogative powers and were misusing them. john wasn't the only one. he was just inheriting what he
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had seen for a long time. running through centuries of history is the constant struggle between crown, divorce money and the parliament devoted. thank you for that question. we have a gentlemen here. >> the people in guantanamo bay i don't believe have been given their due process. and i don't believe that amendment says anything about citizens. >> that is correct. >> this could be the subject of another whole lecture: guantanamo bay and the bill of rights. i am sure you know the supreme court is always a bit cautious treading into areas of foreign relations and military affairs. when the first detention post-9/11 detention cases came up the court did say in affect we play a role. the political branches are not free to do whatever they like
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and people are entitled to some kind of due process. but you get the sense, the cases haven't fledged thus out, but the due process you get as a prisoner at guantanamo bay is not necessarily the same due process you might get as an american citizen in an american court. so it is one more example, i like the question, it is one more example of how inelastic the concept of due process is. it shifts between circumstances. >> there are many countries throughout the world that have constitutions. don't you need more than just the written constitution? don't you need the culture of the country to support the constitution? >> these are wonderful questions. i plant these questions. this one is especially interesting. i think every country in the world has a written constitution.
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israel doesn't because of israeli politics. new zealand has an incomplete constitution. the uk we agreed doesn't have one. i think swazi land's king said he is the constitution. so that makes it simple. but with those exceptions every other country has a constitution and you are on the mark saying that is only the beginning. there is so much more to the idea of constitutional government than the constitution. soviet union had a beautiful constitution but it was a joke. everybody knew your rights and duties depend on the constitution but depended on what the party said. any number of countries, cuba is an example, zimbabwe are
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examples. you mention the world culture. that is the key. if i could plant any thought for you to carry away it would be the notion of constitutional culture. and that is for a constitutional system to survive and thrive and actually be reality it has to somehow be planted in the minds and hearts of people. you take south africa after an apartheid and millions of people were voting who were never given any education at all. no fault of theirs. but they were denied. how would you get them into the mode of thinking about what constitutions are and what constitutional government is. it is one reason why i appreciate this national constitutional center is doing. it is doing the hard work of reminding generations it it takes culture and civil education and a general sharing
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of values to make the constitution more than a scrap of paper. that is very valid. i think that is one reason magna carta survived as part of the sense of constitutional is that the in the anglo-american world these ideas have taken root. as you move to other cultural systems and you all follow the news and know what i am talking about. other parts of the world the political leaders insist the values we take for granted they will say that is culture imperilimperi emperilism. we don't live that way. the leaders have always insulted their own people about how they feel about the pronouncements. thank you for that question. are we running out of time? thank you so much. i appreciate you. here is look at some


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