tv U.S. U.K. Supreme Courts CSPAN June 5, 2019 4:27pm-5:49pm EDT
the reviews are in for c-span's "the presidents' book." it's called a milepost in the evolving and ever-changing reputations of our presidents. and from the new york journal of books, "the presidents" makes a fast, engrossing read. and with graduations and father's day approaching, it makes a great gift. from george washington to barack obama. explore the life events that shaped our leaders. challenges they faced. and the legacies they have left behind. c-span's "the president's" is now available as a hard cover or e-book today as c-span.org/thepresidents or wherever books are sold. next, how the u.s. supreme court compares with the british judicial system. the bbc hosted this discussion with the former justice of the supreme court of the united kingdom.
welcome to washington, d.c., and the fourth bbc reflect tour with supreme court judge jonathan sum shun. we're at george washington university, home to 26,000 students. former alumni include the former first lady, jacqueline kennedy onassis, and the former director of the fbi, jay edgar hoover. in his series, jonathan has been interrogating the complex relationship between politics and the law. suggesting that the courts have become too powerful. now he compares the constitutional models of the u.s. and the uk. this lecture is called "rights and the ideal constitution." please welcome the bbc 2019 reflecturer, jonathan sumption. [ applause ]
>> good evening. when the french political writer alexis detovville visited the united states in the 1830s, one of the things that struck him most forcibly was the dominant place occupied by lawyers in the public life of the nation. in his classic account of early american democracy, he suggested that lawyers as a class had succeeded to the beliefs and influence of the old landed arrest to go race. they shared habits, tastes, and above all shared its contempt for popular opinion. the more we reflect upon all that occurs in the united states, he wrote, the more we shall find that the lawyers as a body form the most powerful, if not the only counter poise to the democratic element in the constitution.
there is scarcely any political question in the united states that does not ultimately resolve itself into a judicial question. there was only one other country that he could think of where the legal elite enjoyed a comparable influence over public affairs. and that country was britain. a new addition of detocville written for today would probably make the same point. the twin themes of these lectures have been the decline of politics and the rise of law to fill the void. i have argued that democracies depend for their survival on their ability to mitigate the power and impulses of electoral majority. historically, they have done this in two ways. one is by a system of fundamental law. standing above the elected legislature and enforced by
judges. the other so representative politics. which creates a class of professional politicians with an interest in softening extremes in order to broaden their electoral appeal. representative politics is a very imperfect mechanism for achieving this. but in the long run, political constraints on the power of majorities are likely to be a great deal more effective than legal ones. why do we believe in democracy? or think we do? what are the proper limits of democratic choice? what rights ought a democratic constitution protect, even against the will of the people? when the british argue about these questions as they often do, they generally look to the united states. sometimes as an inspiration,
sometimes as a warning. yet in spite of a class similarity of political outlook, the american constitutional tradition is the polar opposite of the british one. at its most basic level, the difference is between two models of the state. a legal model and a political one. the constitution of the united states is the arc typal legal constitution. britain, by comparison, has historically been the arc typal political state. in britain, as in many other countries, including the united states, we have witnessed a mounting tide of hostility to representative politics over the past three or four decades. this has naturally been accompanied by a growing interest in the legal constitutional model, especially among the judiciary.
this is, therefore, a good time to be assessing its attractions. and washington is a good place in which to do it. for the legal model raises dilemmas in a democracy of which the united states has a longer and more varied experience than any other country in the world. the prime purpose of any constitution is to provide a framework of political rules for making collective decisions. in its original form of 1787, the constitution of the united states did almost nothing else. the protection of rights came later with the ten meants of 1771, which together constitute the bill of rights. 12 years later in 1803 came the decision of the supreme court in marbury and madison, which established the power of the
supreme court to quash acts of congress held to be unconstitutional. so by the beginning of the 19th century, the u.s. constitution had already acquired the three basic features which have come to be regarded as the hallmarks of every legal constitution. first, there is a recent code of rights which prevails over all other law. secondly, it is proof against political amendment, except by some extraordinary procedure, such as a super majority in the legislature or a popular referendum. third, it confers on judges the power to enforce constitutional rights, to strike down any act of the state, including its legislation, which they find to be inconsistent with them. by comparison in britain, at any rate in orthodox constitutional theory, there are no
constitutional limits on the power of the british parliament. there is no fundamental law which parliament cannot alter or abrogate at will. even the treaties of the european union which have prevailed over domestic legislation for the past 46 years, do so only by virtue of an act of parliament which can be repealed at will, as we have seen. we are almost the only country in the world of which this is true. of course, the difference between the legal and the political models of the state has never been absolute. almost all constitutions have some elements of both. the united states has a sophisticated doctrine of the separation of powers, which reserves a large space to political judgments by the executive and the legislature. in britain, law has always had a place in its basically political constitution.
nonetheless, the conceptual difference between the legal and the political model remains a real one, which exposes two very different views about democracy. the attraction of the legal model is that it is based on a body of principle applied by judges whose perceptions are less likely to be swayed by passion, prejudice, self interest or politic than those of politicians or voters. but it's patronizing overtones are perfectly obvious. the legal model seeks to create a body of constitutional rights which is beyond the reach of popular choice. its advocates do not trust elective institutions to form opinions about them with the necessary restraint, intelligence or moral sensibility.
they therefore favor an accretion of power to the sort of people, namely judges, whose superior qualities and independence of public opinion are thought to produce more enlightened judgments. we, the people, are the opening words of the u.s. constitution. but as james madison's contributions to the federal papers show, the founding fathers regarded the people as a bigger threat to liberty than their government. madison looked for a solution to the representative principle. he expected lawmakers to be wiser and more circumspect than their electors. for later generations, however, the representative principle has not been enough. distrust of elected majorities and fear of majorititarian tyranny has always been the driving force behind the idea of
entrenched constitutional rights. now, it is probably true that the decisions of voters and their representatives are not morally pure. they are based on a variable mixture of wisdom and folly, prejudice and understanding, of idealism, pragmatism and self interest. the real question is whether this impurity of motive is a good enough reason for constraining their choices by law. to answer that question, i think that we have to ask ourselves why we believe in counting votes at all. there are, surely, two main reasons. in the first place, all governmental authority, which is not based simply on force, requires some source of
legitimacy. if a political community is to have any long-term stability, then people have to have a reason for obeying laws they do not like, other than the threat of coercion. we, the people, is the emotional foundation of democracy in britain, as well as in the united states. even if the british do not have a document that says so. the second reason why we believe in counting votes is that it reflects our sense of social and political equality. thomas jefferson wrote in one of his letters to the german scientist alexander von humboldt that the lex ma junioris, the law of the majority, is the fundamental law of every society of individuals of equal rights. the critical words in that sentence are the last ones, "of equal rights." the interests and the opinions of citizens conflict.
we cannot all have our own way. what we can expect is that the decisionmaking process will treat our various interests and opinions with equal consideration and respect. that is achieved by giving all of us an equal share in decisionmaking, even if as individual voters' influence on the outcome is minimal. a constitution which is not based on democratic choice but on some embedded scheme of values, such as liberalism, human rights, islamic political theology or the dictatorship of the patrol tear i can't tell would not achieve it. it would be citizens who happen to agree with these values. that might not matter if the values in question were universally or almost universally accepted.
but you do not need to entrench values in the constitution if they are already universally accepted. you only need to entrench them if they are controversial, and therefore liable to be discarded if people are allowed a free choice in the matter. that suggests that the essence of democracy is not moral rectitude, but participation. the proper function of a constitution is to determine how we participate in the decisionmaking processes of the state. and not to determine what the outcome should be. whether voters act from good or bad motives is really not the point. we cannot make a constitution for some imaginary world in which people are without prejudices or indifferent to their own interests. all that our political system
can really aspire to do is to provide a method of decisionmaking which has the best chance of accommodating disagreements between citizens as they actually are. that calls for a political process in which every citizen can engage, whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions. this is arguably a more important priority for a political community than finding the right answers to its moral dilemmas, even assuming that there are right answers or that we can finally hit on them. the problem about the legal model is that it marginalizes the political process. when a judge identifies something as a constitutional or a human or a fundamental right, he is saying that it derives
from a higher law than the ordinary decisionmaking processes of the state. he is declaring that its existence and extent are not to be determined by political choice. yet very many judicial decisions about fundamental rights are themselves political choices, only made by a smaller and unrepresentative body of people. in an american context, perhaps the most interesting example, is the due process clause of the 14th amendment. it provides, among other things, that no state shall deprive any person of liberty without due process of law. successive decisions of the u.s. supreme court have made this the functional equivalent of article 8 of the european convention on human rights and fundamental freedoms. which protects private life.
both provisions have been interpreted as potentially embracing any interference with the personal autonomy of individuals within limits. but within what limits? all interfere with the personal autonomy of individuals. that is what they're there for. if the limits to the right of liberty are to be fixed as a matter of principle, by judges, then the answer must necessarily depend upon a judgment about which interferences with personal autonomy are acceptable and which are not. half a century ago, this problem was energetically debated in the u.s. supreme court in a celebrated case about a connecticut statute forbidding contraception. the court held by a majority that there was a constitutional right of privacy, which the
connecticut statute violated. but this right was nowhere mentioned in the constitution, and confusion about its exact basis is obvious from the diversity of opinion among the justices. some of them thought that a right of privacy existed because it was analogous to other rights specifically mentioned in the constitution. some thought that the right was to be derived from the collective values of the people as the court perceived them to be. one thought that it was enough to say that a right of privacy was implicit in the whole concept of liberty. the dissenters said there was no such right, because the only basis on which it could be said to exist was that enough justices thought that it was a good idea. i think that the dissenters had a point.
when a judge is asked to decide a question as broad as this, the issue is not really whether the right exists, but whether it ought to exist. yet that is surely a question for lawmakers, not judges. over the century and a half since it was added to the constitution, the due process clause has been the basis of some of the most illiberal, as well as some of the most progressive decisions of the federal courts. according to the changing outlook of judges of the day. as is well-known, during the so-called lockner era between the 1890s and the 1930s, the u.s. federal courts struck down as unconstitutional some 150 pieces of employee protection legislation under the due process clause. they did this on the grounds that liberty required absolute freedom of contract, subject
only to limited considerations of public policy. among the laws which they struck down were state laws limiting hours of work in the interests of health, guaranteeing a right to join unions and outlawing child labor. moving to the opposite extreme, the due process clause was also the basis of the decision in roe and wade in 1973. the u.s. supreme court derived a right to abortion from the newly discovered constitutional right of privacy, and autonomy. the same reasoning in a sense lay behind the court's decision more recently about same-sex marriage in 2015. in both cases, the supreme court's decisions were necessarily based on the perception of the justices that this was what liberty now required.
yet it seems likely that if the same issues had come for the first time before the court as it is now constituted, the result would have been different, although nothing would have been changed, apart from the outlook of individual justices. now, one can draw two lessons from the broad range of outcomes, which at different times in american history have been justified under the due process clause. one is that on politically controversial issues, the decisions of judges almost always involve a large element of political value judgment. the case for or against labor regulation is a question of economic and social policy. the case for or against abortion is a question of social and moral values. what liberty requires in either
context and how far it should go are fundamentally political questions. the other lesson is that judicial decisions on issues like these are not necessarily wiser or morally superior to the judgments of the legislature. much of the employee protection legislation struck down by the federal courts in the lockner era had been on the statute book in britain since the middle of the 19th century. as it got there, by ordinary legislation and by political action. the justification commonly put forward for treating such matters as constitutional issues is that it protects minorities against majorityian tyranny. but what constitutes majorityian tyranny very much depends on how you define your majority and what you regard as tyranny.
except, perhaps, in classic discrimination cases, where the animating principle is to treat like cases alike. there are no legal standards by which these questions can be wh questions can be answered. the only available standards are political ones. there is also, although i perhaps hess take to make the point here, a wider issue, namely whether it is wise to make law in this way. i recognize that partisan divisions and institutional block ajs in congress have made controversial legislative change difficult to achieve in the united states. i recognize that that encouraging those who look for a judicial resolution of major social issues. but the chief function of any political system is to accommodate differences of interest and opinion among
citizens. resolving these differences by judicial decision contributes nothing to that end. on the contrary, characterizing something as a constitutional right removes the issue from the arena of political debate and transfers it to judges. in the united states it does in irreversibly unless the supreme court changes its mind or the constitution is amended. personally i'm in favor of a regulated right of abortion. but i question whether it can properly be treated as a fundamental right displaysing legislative or political intervention. abortion was once highly controversial in britain too. after extensive parliamentary debate it was introduced by ordinary legislation in 1967 within carefully defined limits
and subject to a framework of clinical regulation. the same pattern has been followed in europe where all but one state and northern ireland have now legislated for a regula regulated right of abortion. as a result abortion is much less controversial in europe than it is in the united states. i suspect, although i cannot prove it, that one reason why abortion remains so controversial in the united states is that it was introduced judicially, i.e., by a nod which relegated the wider body of americans to irrelevantens. instead on it's kptcy for the supreme court with results that were apparent in the undignified
procedures in the most recent confirmation hearings. in his first inaugural arrest in 1861 abraham ringing drew attention to filling gaps in the constitution by judicial decision. his words are well-known. the candid citizen, he said, must kefz that if the policy of the government on vital questions affecting the whole people is to be err revocably fixed by decisions of the supreme court, the people will have ceased to be their own rulers having to that extent practically resigned their government into the hand of that eminent tribunal. lincoln had in mine the notorious supreme court decision in dred scott which had held that african-americans were not to be treated as citizens. but he was also making a broader point which was about active citizenship. a nation cannot hope to
accommodate divisions among its people unless its citizens actively participate in the process of finding political solutions to common problems. law has its own competing claim to legislate macy. but it is really no substitute for politics. now i'm certainly not saying that there are no rights which should be constitutionally protected in a democracy. but i think that one lesson which britain can learn from u.s. experience that one must be very careful about which rights one regards as so fundamental as to be beyond democratic choice. i suggested in a previous lecture in in series that in a democracy there are only two kinds of right that are truly fundamental in that sense. there are rights to a basic measure of security for life, liberty and property, without which life is reduced to a crude
contest in the exercise of force. and there are rights such as freedom of expression, assembly and association, without which a community cannot function as a democracy at all. these rights will certainly not be enough to prevent majoritiarian tyranny. but no code of rights will do that. the the law simply has no solution to the problem of majoritiarian tyranny, even in a system of perfectly entrenched constitutional rights like that of the united states. law can insist that public authorities have a proper legal basis for everything that they do. but law can supply the basic level of security on which civilized existence depends. law can protect minorities identified by some personal characteristics such as gender, race, sexual orientation from
discrimination. but the courts cannot parry the broader threat that legislative ma jorjts may act oppressively unless they assume legislative powers for themselves. the only effective constraints on the abuse of democratic power are political. any depend on active citizenship, on a culture of political sensitivity and on the capacity of representative institutions to perform in re traditional role of accommodating division and mediating dissent. if that no longer happens in the united states or on some issues in britain, it is because our political culture has lost the capacity to identify common premises, common bonds and common priorities which stand above our differences. this is a serious problem in any
democracy. but there is nothing that the law can do about it. in an essay written in 1942 the great american judge lenrd hand confessed he could not predict whether the spirit of equity and fairness which animated the constitution would survive without judges to enforce them. but he added these words. this much he said i think i do know, that a society so riffen that the spirit of moderation is gone, no court can save. that a society where that spirit flourishes, no court need save, that a society which ee vads its responsibilities by thrusting upon the courts the nurture of that spirit, that spirit will in the end perish. the ultimate expression of claims of law to set limits on political action is a written
constitution. in the next and final lecture in this seriesish look at calls to introduce one in the united kingdom and at what such a constitution might say. thank you. [ applause ] >> so we had a slight technical hitch at the beginning. if if you don't mind just doing the first couple of lines and if we come off applause then is that what you need, jim -- just clean from the start just wait until i sort get out of clipty clopty heels out of the way. if you just start wherever you are comfortable. >> when the french political writer allegesis detokville vichted in the united states in the 1830ss one of the things
striking him forcibly was the dominant place ahmed by lawyers in the public life of the nation. >> thank you very much, jonathan again. come join us. have a seat jonathan. while they are adjusting the microns can i remind if you you'd like to ask a question put your hand up clearly and wait until i've got a microphone to you and where you are are from and if represent an organization. if you did o can dial down the hands in our eyes. i can see the hands. have a microphone there to the gentleman in the front row. no, no, start here. sorry there. gentleman there and come back. and if ke rowe we can get a microphone to the lady over there. let's start with you sir. no sorry hello this gentleman. anglea. here. i do. thank you. >> how are you doing? i'm matt le rosier with the cato
institute an american constitutional lawyers i have some things in common with you. it was a wonderful lecture i appreciate it the the except for the ways in which you fundamentally skull constitutional law kblasing whether or not the government has the power to act in the first place. my question is can we really compare two systems one in which the people view a right that is completely without the scope of government and which one which a it's a view of a right granted by government. if so how is a right in that european system forgive me any different from a privilege if it can be revoked as will. >> i'm not sure i understand the whole of the question. first of all i entirely agree with you that a prime function of the courts -- i think i recognize this in my lecture -- is to ensure that governments have power to do what ever they seek to do. and that's certainly at the common factor as between the
united states and great britain. what i'm interested in is the role of the courts in inhibiting or imposing policy chases which is i think a different question altogether. can you remind me of the second half of your question. >> is there a fundamental -- or a principal distinction between a privilege in a system where rights come through government, are granted by the government? and a right because if the government can take it away what makes it different from a privilege. >> well i'm not aware that the government either in the united states or in in country has the -- orp in the -- in the united kingdom has the constitutional power to confer rights unless it is exercising a statutory power to do so. so i'm not entirely sure how the problem arises. you're obviously right in saying
that if the government had the power either to confer or to take away rights on its own initiative, i.e. without explicit statutory power it wouldn't differ from a privilege taufl. >> can i ask a supplementary question to that? is it not a case of old world arrogance that you will come come over here and tell the good people when the majority of good countries in the world right now have written constitution that is we do it better not just because we did first but we do it better because we haven't written it down. >> i haven't said we did it better. i think it is -- we obviously start from completely different points of view. in the united states a written constitution on the legal model has nearly a quarter of a millennium of history. that is where you start. i am not for one moment
suggesting that that is something that you should dispose of or modify. i want 240 years too late for that. but in the united kingdom we start from a tradition in which our constitution is essentially political. it differs from almost every other country in the world in that respect. but we are where we are, and it is relevant when you look -- when you try to answer the question, ought the united kingdom to move closer to pennsylvania legal model, then it seems sensible to me that one should look at the experience preemthey wantly that of the united states, of managing such a model. the united states constitutional experience has demonstrated that there are dilemmas when you try to -- to have both a democratic model and a legal one. that is something from which the
united kingdom ought to learn. so far from arrogantly criticizing the american experience, i would like to know what works in the united states, why it works, and whether we could expect it to work in the entirely different political and constitutional environment of my country. >> but do you believe in your country and my country, that we are slightly more fleet of foot more flexibility dsh dhash you believe we have more flexibility because we have an unwritten constitution. >> i believe we have a great deal of flexibility. i don't wish to suggest that the united states lacks that degree of flexibility. you only have to look at some of the major supreme court decisions in order to see the way in which differing facts and differing values have altered the law as declared by judges. i mean, an obvious example is brown and the board of education which abolished the free -- the
separate but equal doctrine in education. there by overruling an earlier supreme court decision of 60 years earlier. it did that because of values had changed, and because perceptions of the facts had changed, although the facts were that it was never equal even on the earlier occasion. >> let's take another question. so there is lady here with a microphone. yes. >> thank you so very much mr. sumption. i'd like to request ask a question with regard to the compensates about democracy directly. particularly looking at those who doesn't acknowledge in' 38 hit letter was elected by where over 93% of the german voted. going back to the get that dpkz is not a better form of groft. three degrees with female leaders were parliamentary.
contrasting that with the u.s. system what do you think of the difference between a exactic parliamentary system and do you think that's superior in terms of jukt posed to the u.s. system. >> i dealt with in this point in some detail in the second of the lectures in the series. i stroppingly -- first of all i accept that direct democracy has serious problems. problems that were anticipated notably by madison but in fact in many of the early constitutional writings in the united states. and i'm a strong believer in representative democracy, precisely because i think that representatives are the in a position to take a broader view about the long-term interests of
a nation than a snap chat produced by e.g., referendum could ever do. if the implication of your question was that i was a believer of direct dmkds edemocracy, i'm not i think the advantage of the representative system is that it is a better method over a broadered range of politics. of constraining the impulses and the self-interest of majorities. it often fails, but it's better than any possible alternative, which is an echo i think of your quote from winston churchill. i wasn't sure whether you were asking a separate question about the relevance of female heads of state. were you? >> yes with us, because mgts you were saying it couldn't hapt in the u.s. or at least historically and do you think
that's because they are parliamentary systems. >> i don't agree with the suggests that it could only happen in a parliamentary system. i think that the direct election of a head of state can be more polarizing and it can produce outsiders which can be an advantage or a disadvantage. without dwelling on personalities i can readily think of two countries whose head of state was recently elected who was a complete outsider to the political field and the results in each case have been totally different. so it depends on many factors other than the method of choosing your head of state. i do not accept the implication of your question that if you directly elect your head of state it's never going to be a woman. i think you may be right in saying it might take a little
longer but i don't think it's going to take much longer. >> let's take a question from this side and then who else would like a question on this side? gentleman right at the front if we can get a microphone to you yes, sir, you. >> tim campbell, an attorney at the department of veterans affairs. i wondered what your -- what you would say to de tocqueville. because he is also most famous here in the thaurs all political questions eventually become legal questions. i just wondered how that fleshes with what you said today. >> well, i quoted that statement at the beginning of my lecture. i think all is putting it a bit high. but a lot do. i mean, detokville, like all the political analysts occasionally exaggerated to achieve impact. but there is a basic truth in what he had to say. it is an astonishing work to have been written in the 1830s, part observation, part prophecy.
he was looking at a society very different from modern american society. pu he was talking about the implications of a constitutional system which in its essential speculates is still there. >> do you want to come back? >> no. >> no. okay. the question here at the front. >> iech i'm reverend grailing pastor of plymouth congregational united church of christ in washington, d.c. what i'm intrigued by is the total absence of any racial analysis when it comes to the interrelationship of constitution and law in the united states. because it is basically the constitution and the constitution put in that gave black folks the opportunity to hope that the words would be interpreted in a way that would leads towards emancipation. that eventually happened as attitudes got change. but the reality if we wade waited for attitudes to change it would never ever happen, which was -- which was our
process of almost 400 years of slavery in this country. in a sense it was the words and institution in a sense was the battleground in order for people to get brown versus the board of education pb given the dred scott decision or plessy versus ferguson but any kept coming up because the constitution was in place that guaranteed rights. what was your perspective on that analysis. >> emancipation wasn't achieved by the original constitution and indeed wasn't achieved in a real sense by the constitution at any stage. it was achieved by a bloody seven-year civil war. to it -- the results of that civil war were subsequently embodied in the amendments to the constitution which immediately followed it. i think that it is clearly right that the original constitution was -- it effectively did not
deal with slavery. it was ambiguous on the subject. and that was because it was a subject on which the founding fathers would probably have never been able to agree. and that was a missed opportunity at a time when slaves were beginning to be emancipated in much of the rest of the civilized world. >> let me -- let me km back and correct you on a point. because in a sense the emancipation was a -- bass was a battleground for you to fought out in the civil war but also fought out in the legislature and that was rally. the real issue is what follows after reconstruction is jim crow what we know as jim crow in this country. basically jim crow got taken -- bricks of it got taken down by basically the challenge of the law that forced legislative bodies to have to deal with things like desegregation and deal with things like public accommodations. that's basically was the
battleground in which we fought as well in the street. >> well, that battle was won politically -- i agree that the supreme court's contributed something to it rather late in brown and the board of education in particular. will you essentially as i read the situation historically -- i mean correct me if i'm wrong -- the legislation of the 1960s and subsequentry was what really produced that change. that seems to me to be the way it ought to work except in one sense, i think that most people would feel that in an advanced country like the united states it ought to have been achieved very much earlier and that the implications of the issues for which at least in its later stage, the is civil war was faith ought to have much more influence on the judiciary than
it did in the late 19th century and not the middle of the 20th. >> the question from the lady next to you. can question get a microphone stretched over. >> i'm susan abelhalla, a writer from philadelphia. i want to just bounce off of the previous question. israel has a system that is i guess legally similar to the uk. they don't have a constitution. and the laws are very much created by political will. and what you have is essentially an apart hide state with multitiers of laws that are applied to people based op ethnicity and religion. and the indigenous palestinian population cannot even mount a movement that could legally challenge that. because there is no constitution
in israel. whereas in the united states that kind of civil rights and social justice movement was launched -- the infrastructure that allowed that to be launched was the legal infrastructure of the constitution that, quote, all men are created equal. >> well, i think in part my answer to that was given in answer to the previous question. i think that the -- the assumption that men are equal is stated expressly in the u.s. constitution but is implicit in just about ever constitution that i can think of including unwritten ones like ours. now, the case of israel which you raise is interesting. it is true that israel has no written constitution, although
in the course of 1990s its supreme court did create a form of entrenched rights which had previously been thought impossible. i agree that the way that the israeli state works marginalizes the 10% or the kinneset which is elected from arab constituencies. the reason why it marginalizes the -- that 10% is that there is an unspoken convention among all the non-arab parties that they will not enter into coalition with the representatives of the arab constituencies with the result that they are effectively left as an impotent minority. that doesn't seem to be a constitutional problem it's a political problem. when i say it's not a constitutional problem it's a
problem due to the israeli constitution orp lack of a written constitution. any constitution that i can think of would be ineffective to stop a majority in parliament from acting to marginalize a minority. i, like i think you, regret that that happens in israel. i think it is a potential source of instability which is not only unjust in itself but will turn out to be deeply damaging to the long-term future of israel. but i don't think that i agree with your diagnosis that this is due to the absence of a written constitution. >> there are a lot of questions coming from the middle. if i could get the microphone just to the person in the pink who has been waiting fashtly there. on this side can i see more hands. the lady over there. if you could -- yes in the green jacket, injury. thank you. first of all you, sir. >> hi i'm brian chung an
graduate of this university and queens college oxford. my question is about the rights of persistent and popular minorities particularly an issue with jeremy wahl doctrine's struggle in this case against strong form judicial review and both here in the u.s. and in the uk we have seen that leaders have come to power promising to restrict the rights of mierpts such asylum seekers, terrorist suspects and particular religious groups. and congress and parliament have gone along or generally failed to pret the rights. my question is, how would your ideal system of constitutional law or politics protect the rights of the persistently unpopular minorities. >> thank you very much. >> supposedly as you have already said some of these people you have already acknowledged that will law will protect some people of certain characteristics but there are other peoples whom they have characteristics which not all
can agree will be probated. >> okay thank you very much for the question. >> as i understand it, the united states constitution does not permit the -- the executive to operate a system for admitting migrants which is biased on racial or religious grounds. certainly that is the principle in the united kingdom and so far as i'm aware of pretty well all european countries. all the countries have a -- of an immigration policy of some kind. and it seems to me likely that in any exactic country there will be laws which restrict the right to my grate into that country. i don't regard that as inherently objectionable. i would certainly regard it as inherently objectionable if the laws operated by discriminating
between some races or religions and others. but i'm not sure that i would accept that migrants can be regarded as a minority in the sense which you mean. >> can i just ask a supplementary question? which system looks at minorities better written constitution or unwritten constitution. >> i don't think there is any difference in that respect. the -- it would be possible for the united kingdom to have laws which did discriminate against migrants from some races. in fact we don't do that. it would not be possible in the united states. to that extent clearly the american system has a more durable. >> sounds more robust. >> more durable protection. at the same time, there are many things in any constitutional
polity which one would wish to prevent but which are prevented politically. and i think that our system does politically protect minorities from ethnic or religious discrimination. >> let's take the question from the lady over there. >> hello. i come from georgia, the other georgia across the ocean. my question is, what does -- what do you think with -- where do you think brexit stands here. >> yao. >> i think you're willfully for the what isplex zbliet the question is where do you think brexit stands here? is that because of this very specific political system or model that uk has which would be different from other countries, from other eu countries? or do you think it is the reaction to the decline of politics?
>> i'm not sure i think either is true. i think that brexit is the result partly of economic frustration, which is for the peculiar to the united kingdom by is very strongly felt there. it is partly the result of a romantic view of the british past, which in some important respects is very different from the past of other european countries in that after the second world war every european country had been invaded and had had its existing political system effectively destroyed. either in the course of the war itself or in the course of the nazi conquests which preceded it. the -- the fact that this didn't happen in britain has given very
many british people a feeling that they can operate independently from social and economic movements which exist across europe and indeed in some cases across the world. i personally think this is an illusion but historically i think that is the explanation. i do not think it has anything to do with our constitution except in one respect, which is that we adopt add mode of decision making, namely a referendum on a particular issue, which i think was constitutionally completely misguided. i think that it was misguided because it was a method of circumventing the ordinary political process. as i explained in summarizing a point i made in earlier lectures at the beginning of this one, i think that the political process
because politicians seek to appeal to the widest range of opinion, the political process has a very good chance of softenings the impulses of democratic majorities, essentially because politicians have to think about the opinions of people other than themselves. the problem about a referendum is that it invites people to make decisions on the basis of nothing other than their own interests. and the result is to produce a situation in which 52% of the population consider themselves ton speaking for the entirety of the united kingdom, and 48% don't matter at all. if you believe, as i do, that the prime function of any constitution is to provide a method of decision making which has the best prospect of
accommodating dissent and disagreement within the citizen body, that's a state of affairs that you are the likely to regard as i do as completely unacceptable. >> if the brexit situation is a stress test showing the cracks in our system or the creeks certainly, what does the current tang o between president trump and mulla and all the things going with it tell uls about the american system right now? >> i don't think that's got anything to do with brexit or any of the underlying. >> problems. >> no, of course not but if you regard brexit as a treys test our system and this has is streft tuft. >> brexit is a much more severe test for our system than that particular dispute is for your system. as i understand it, the present attention position is that without contempt proceedings being brought by the department
of justice against its own head the house of representatives subpoena can effectively not be enforced. i do not know what the constitutional options are, whether the courts have any power which they are likely to exercise to compel compliance with a -- a subpoena in the absence of proceedings by the department of justice. >> in a past life though you presided and/or certainly took a the prominent role in the hougten inquiry you know about redacted documents and the power they have. right now we are in a situation where the president has issued an executive order where we can't see redacted these people whose country is that they can't see redacted documents that some people have already seen what response. >> my response is that it's appalling. but as i understand it legally
there are limited ways in which under the u.s. constitution that can be dealt with. i'd be delighted to be told that that is wrong. >> okay. >> but if you ask my view politically, is it sensible in a sophisticated society for the president to be allowed to say i've been entirely exonerated and then not to disclose the document in which he claims to have exonerated, no, i do not think that's a sensible way of running your affairs. >> thank you. now suddenly a forest of hands let's go to the micro let's have a ploirk phone there is a hand right at the fronted. could you come over here, please. let's go to the this side of the hall yes to you. >> carl lack hart, graduate university of virginia school of law. you don't seem to be a big fan of judges or the majority. you kind of seem to see that there is a tyranny of the majority working in democracies.
i'm guessing -- i'm trying to figure out what your solutions are. i want to propose two and see your thoughts. one is the role of elected judges, which takes place in many states. and the second is the role of federalism which we have here which didn't get touched on the decentralization of power and how that allows for majorities at smaller levels to make decisions for localities rather than a national majority marginalizing 48% of the population as the case with brexit. >> well, we don't have elective judges in the united kingdom. and i'm not aware of any other country which does have them. personally i find the idea of people standing for election on the basis of their own program of what sort of judge they would be very unsatisfactoriry. i'm glad that we don't have elected judges. your point about federalism, yes, federalism does have the
advantage that it enables smaller you know it's to make decisions and therefore it permits a greater variety of options. one area where it would have made no difference is the one that you mention, namely brexit. it would not be possible for different parts of the united kingdom to have different international treaties with the other countries of europe. it wouldn't be possible in the united states either. with but as a general rule, leaving brexit out of it you are obviously right to say that federalism does have certain advantages. and some aspects of federalism are already in force in the united kingdom where there are separate parliaments. they are sboerd knit parcel mts in for wallace and scotland and
northern zblierld i'm not saying we came across the pond to escape brexit but is there any non-brexit questions. if we could take that one from the front and if we get a microphone. let's see there is a gentleman over there very patiently waiting. i know this judge in the front i'm coming to you in the front. yes you know i'm -- just there. there we go. yes. you're second. just hang tight. so gentleman at the front first of all. >> thank you. mark meddish, a lawyer in washington, d.c. i wanted to probe further on your view of the role of judges. you had made the observation in reference to due process and privacy cases decided by the supreme court that american judges, justices sometimes appear to arrogate power almost acting at legislators through the practice of interpretation of legislation and of the constitution. and i was just wondering if you
think that judges in your country are somehow less powerful? don't they have the same powers of interpretation that can have hugely consequential impact on the outcome of cases and controversies? appear in that case what really is the difference between a written and unwritten constitution if judges who must be the arbiter still have the awesome power of interpretation. >> just before you answer that could you say who you are appear where you are from. i don't think we had that mark meddish, a lawyer in washington, d.c. >> thank you. >> judges in the united kingdom have the same power of interpreting written instruments as they do in the united states, although they carry that power less far than at any rate the supreme court has done. but there the basic theoryicle framework is the same.
moreover, judges in the united kingdom have the same appetite tor developing rights as many judges do in the united states. that is something which i think is relatively recent. it's not recent in the states. it is recent in the united kingdom and is i think undesirable. the difference between our systems is that what the supreme court decides to be a right, a constitutional right is there after written in stone unless the supreme court itself modifies its view subsequently or unusually there is a constitutional amendment. whereas in the united kingdom there are no entrenched rights that cannot be modified by parliamentary legislation if necessary by a single vote.
that's the difference. >> thank you very much. the gentleman over there. >> yeah, this is jim feldmann, an attorney here in washington, d.c. you're -- you emphasize a lot and come to the whole question from the standpoint of what is i think most effective in a democratic system. so one important strand of american constitutionalism has been that part of constitutional rights that protects democratic -- the democracy itself. i'm thinking in particular of the one person, one vote strand and other decisions as well that have protected the democracy itself, where -- and allowed us to have a democratic system in the first place. and i -- i realize that england -- that the unique has come about in in a different way. but nonetheless it does seem like that is an important and effective role that a constitutional system should have. >> i agree with you. in my -- in the lecture i've
just given i said that i thought that there were two categories of rights which in any system should be regarded as fundamental, one is the group of rights which essentially protects you from crude exercises of force that protect life, liberty and property, and the other, the body of rights like freedom of association, one person one vote and so on which are the essential for the survival of any democratic system. now it is perfectly true that in the united kingdom, because we do not have a written document by which the constitutionality of legislation can be judged it would be theoretically possible for the legislature to abolish elections or provide that certain people should have two votes and do all of the other things which i think you, like me, would dploer.
that would be theoretically possible. but you have to ask yourself what's the most -- what are the various effective ways given one's own history and own traditions of dealing with this? to my mind a political system governed by powerful conventions has proved historically to be a highly effective method of preventing that from happening. i cannot see it happening in -- in the uk. for you an earlier question pointed out that it did happen in germany in the 1930s. the problem is if you reach a state your name where your society is so fragmented that you cannot rely on political conventions to avoid that kind of misfortune then you are sunk anyway. that's the real problem when society -- it's the point of the
quotation i gave from learn ard hand at the end ofmy lecture when a society reached that stage it's in the hands of violent people anyway. that was precisely the "people" position of germany in the 1930s. >> can i stee a shoef hands put them high up in the air because the light is making it difficult to see a gentleman waiting there a long, lopping time and a gentleman in the stripy top. while we get micron can i ask you a question we are in the land wrp the vast majority of people here i'm sure would have been transfixed by the kavanaugh hearings where a man who sought a place on the supreme court as you have -- had place on the supreme court in our own country, had to go through some very rigorous often difficult, often eviscerating questions from people wanting to know what he was, who he was and what he had done. why and see not a good thing to extend everywhere where a judge
would seek to sit in judgment of others. >> because it has the effect of politicizing the judiciary. what it means is that -- it's not simply because of confirmation hearings. it's because of the fact that subject to confirmation the president has the power of appointment. the combination of presidential appointment and confirmation hearings before a necessarily political body has had the effect of politicizing the upper reaches of the federal judiciary in the united states. now, i'm not in a position to comment on the question whether that has reduced confidence in the judiciary. but what i can say is that i have absolutely no doubt that it would have that result in my country. >> just putting aside the politics of it, just the mechanism of asking a man who would seek to stand in judgment of his peer what is do you think about -- just exposingisms are there any sexisms, racisms misoxygenisms to ask a set of
questions in front of a group of peers to find out what makes a man tick or a woman tick to avoid the pale mail stale on both sides of the pond would would that not abgood way of shift sfwloog no completely dploshl. >> why would to bible dploshl. >> part i will for the reason af given which is is that it inevitably politicizes things. and partly because i do not think that judges should be appointed on the basis that they be can expected to decide cases in a particular way. in fact, most confirmation hearings in the united states have turned into essentially political disputes as challenges arise from the party which is opposed to that of the president. for many years before kavanaugh's hearings, the
ordinary response of candidates before confirmation hearings to questions like how would you decide in, that and the other case is i would have to listen to all of the arguments, and i'm not going to prejudge them by telling you how i would decide now. that is actually constitutionally the right answer for any judge to give. and what it means -- i mean it's a pity that robert bork never thought of that when he had his highly contentious hearings three four dekds daebds decades earlier. what it means is because with you o you don't actually get out of the confirmation hearings an idea of how a judge would decide particular cases or particular kinds of case and you shouldn't actually seek such an idea from him, all that is left is some assessment of his political biases. and that is why you have at a highly politicized higher
federal judiciary in the united states. and i would regard it as very unfortunate if we had that in the united kingdom. >> is there anybody who wants to stand by the system of scrutiny that you have for -- yes, the gentleman over there in the stripy. don't look so surprised. it's you had. >> hello i'm tyler. kujma a sophmore here at george washington united states. at least in the united states we've had supreme court candidates run for political office. in your lecture you mentioned the political value judgments that justices sometimes have to make is there a time the courts weren't politicized or have they always always been political institutions. >> talking about the unique or the zbluns i know about the united states. i was more asking about the united states. because it during your kavanaugh answer were saying it would politicize the courts. oom eye i'm not sure there's ever ban been a time they weren't politicized
>> i don't think that the british courts are politicized to any significant degree. what i do think is that they are often asked to decide political issues of a kind which are frankly impossible to decide without reference to a judge's own assessment of the policy issues in question. which is one reason why i don't they ought to be asked to decide that. but we recently had a -- -- shortly after the referendum on brexit -- sorry to get back to brexit -- the supreme court had to decide whether the government had power to give notice to leave the european union without parliamentary authority. the government did not propose to seek parliamentary authority. it claimed to have the power to do it without. and we held that they did not have that power. now, before this -- the argument
there was a huge amount of speculation in the press in which the initial -- in which the expectations about how judges would decide in particular question were canvassed. people had different theories they said x is likely to think this. y is likely to think that. i think it's highly satisfying that every single one of of the predictions was wrong. the -- those were thought likely to support the government's position in fact dissented. and vice versa. now what that suggests is that the court actually set about deciding what the law was and was not particularly influenced by the opinions that the judges had about whether brexit was a good thing or whether it was something they would have supported. so i don't think that there is any overt politicization.
the -- i would have said on the basis of the 7 years in which i sat in our supreme court, naturally you start out when you get the papers in the case by trying to say, well i know who i'm sitting with. we sit in panels and not en banc. now how is this to pan out? i would say i was right less than half the time. although i reckon to know my colleagues pretty well. in the united states supreme court, i think that even an outsider like me would probably have a strike rate approaching 80 or 90% if you tried to predict how a particular contentious issues would be decided by particular justices. personally i think that's unfortunate. >> thank you. and you're going to be our final question. >> oh, okay. thank you. i want so badly to ask about brexit but i'll trade it i'm michael fantuzo. a two l here at washington law
school. i did want to ask you dsh did press you a bit about the idea of your skepticism of direct democracy i know you're a member of the house lords. >> i'm not. >> you are you were a lord. >> well, all right i have a title but i'm in the a legislator. i'm noah member of the house of lords. >> okay good thank you for setting me straight. i did want to ask, though, there does seem to be a narrative that's coming out among certain sort of elite circles perhaps lords or others that direct dmkds if you along at the example in our country we have trump. but the idea that that would disapprove democracy whereas if we had had a trekt dmz trump got view fewer votes because we had the electoral college and indeed during the primaries superdelegates and party managers prevented bernie sanders from being chosen as the nominee. so i'm just wondering, you know, in terms of when elites make mistakes it seems that while we say that that's still the best
system versus if democrat being majorities make mistakes we spay that that's proof that direct democracy doesn't work. at least with a direct democracy there would abconsent of the governed soot as opposed to to when you have elite rule. >> i think that there are failures and problems associated with both models. but i think what you have to remember and see democracy, whether direct or indirect is not only a mechanism for decision making. it's a method of decisionmaking which seeks to accommodate divergent interests and opinions. and indirect democracy is much more likely to achieve that nan direct democracy. that to my mind is the main justification for it. my view about in is exactly the same as that of james madison in
his contributions to the federalist papers which i think are mopping the most carefully thought out and reflections on the role of different models of democracy that i know of. and i think that what madison said back in the 1780s has proved extraordinarily pressient nos just as plied to american politics but other politics generally in other countries. >> how we vote is the subject of next lecture coming up. but that is all that we have time for. my thanks to all of you here at george washington university. to you who are listening at home. and most especiallily to jonathan sumption, thank you very much indeed. [ applause ] this year's marks the 30th anniversary of tiananmen square protests in china. where thousands of students met
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