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tv   Justice Anthony Kennedy on Winston Churchill  CSPAN  November 22, 2018 4:45pm-5:31pm EST

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virginia, former u.s. supreme court justice anthony kennedy delivers the keynote address on the former british prime minister. afterwards, mr. kennedy sits down with msnbc's "hardball" host chris matthews to talk about this career. justice kennedy retired this past summer after 30 years on the court. this is about 40 minutes. >> good evening ladies and gentlemen. justice anthony kennedy from sacramento, california, earned his b.a. from stanford university after spending his senior year at the london school of economics. he then attended harvard law school, where he earned his degree in 1961. during the 1960s and '70s, justice kennedy worked in private practice in california and was a professor of constitutional law at the university of the pacific. in 1975, he was nominated by
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president gerald ford to the ninth circuit court of appeals and was unanimously confirmed by the united states senate. after 12 years of service, justice kennedy ascended to the supreme court in 1988 when president reagan nominated him as an associate justice. on the occasion of his retirement this past july, after 30 years of service, some of his former clerks ruminated and reminisced about their experiences. they had found in him a leader who never shied away from disagreement yet sought at all times to avoid being disagreeable. there is no doubt that justice kennedy left a lasting imprint on the high court that few
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others could or will ever match. among his many other activities, justice kennedy serves on the colonial williamsburg foundation board of trustees, where he is chairman of architecture and design review committee. as such he has been a consistent driving force behind the architectural vision for the $40 million expansion of the art museums and the renovation of the five-star, five-diamond rated williamsburg inn. as those who have worked with him on these and other projects have noted, his mind is something of a steel trap, never forgetting a detail. however, importantly to understand this great man, those who know anthony kennedy enjoy his low-key affability. he is a modest and remarkably
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kind, something people have commented about throughout his long career dedicated to public service. we are very pleased and honored to welcome justice kennedy to one of his first major engagements since leaving the supreme court. ladies and gentlemen, justice anthony kennedy. [ cheers and applause ] >> good evening. good evening. only the trial lawyers need to remain standing. [ laughter ] thank you very much for the invitation to be with you, and it is a singular honor to be
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introduced by a member of the churchill family. as a member of the board of trustees of colonial williamsburg, it is also my privilege to welcome you here. of course this is where the founders gave great thought to our constitution. their commitment was to secure freedom for themselves and for generations yet to come. that is the same commitment that winston churchill had. the men who drew the constitution, whether by accident or providence or design, were a brilliant group of people.
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the comment once was made by gladstone about the english and the american constitution of wh strike you as patronizing. he said the english constitution was grown. the american constitution was made. well, you might think that sounds patronizing and you could say in the a patronizing tone. but his goes on to pay a supreme compliment to the founders of the united states constitution. he said the english constitution was grown. the american constitution was made. and just as the english constitution is the most subtle organism ever to proceed from the womb and gestation of a long
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progressive history, so is the american constitution the single most wonderful work ever struck of off at a given time from the brain and purpose of man. [ applause ] winston churchill was, of course, a great admirer of the american constitution and one of the greatest defenders in history of his own. churchill, of course, knew history, studied history, loved history, made history, embodied history and he would be so proud to know that you have met here where the history of freedom was reborn. it seems that most speakers at
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the beginning established their credentials. in my case, given the distinguished churchillian scholars here it seems appropriate to exhibit my lack of credentials to speak to you. [ laughter ] and i can convey that by this story. in post-churchillian times, in the '80s, margaret thatcher asked ronald reagan to whom she might talk about the history of american federalism to see if any parallels to the european union and he suggested graciously that she talk with me and she and dennis were very gracious to mary and me. we were at 10 downing street
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three or four different times with them. one afternoon we were at luncheon in the room where you go to 10 downing street. it's right on your right and i think there were one or two other couples there, six or eight of us and the prime minister said well, anthony, what are you going to be doing this weekend? and i said well, we're going to chequers. and she said, oh? and i continued -- my continued response was yes, we want to see where churchill lived and the paintings he did and the wall he built. and she said "you mean chartwell." [ laughter ] she said when you said you were going to chequers you invited yourself to my home. [ laughter ] and of course everybody laughed except me. i flushed, got very red. and she graciously said "but you shall come. you shall come." and indeed we were invaded some months later but suddenly she was no longer prime minister.
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so if some of you can arrange for me to go to chequers, just give me a call. [ laughter ] one of the things that we discussed in our conversations was my continue that if england joined the euro, at that time the european union was ready to establish the euro it would be quite inconsistent with the united states idea of a single currency. my comment was that because this nation had a single currency it was very, very strong and if england joined the euro it would be highly restrictive of england's ability to negotiate with the europe and apparently other people gave her that same advi advice. one of my other comments was
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that, of course you will have international courts that will undercut the idea of parliamentary supremacy and that's inevitable and it's interesting prime minister churchill knew this would happen because of international covenants which are enforceable by international courts. in 1948, he was not prime minister at the time but he was invited to what they call the congress of europe in the hague where they discussed the plans for the council of europe and the european convention on human rights and churchill made a very valuable contribution.
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now to simplify a little bit, if you talk about a constitutional right they're roughly in two words, one are negative prohibitions. congress shall make no law respecting an establishment of religion or prohibiting the free exercise clause. congress shall make no law abridging the freedom of speech or the press. no person shall be condemn ed t life or to beat -- condemn to punishment for life or limb and be put twice in jeopardy. no warrant shall issue upon -- except upon probable cause. negative prohibitions. but if you go down the streets in washington on a cold winter day and you see some homeless person trying to keep warm and you say now here's the
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constitution of the united states. you have a right to free speech and there can be no warrant issued except upon probable cause and you can't be put twice in jeopardy of life or limb he'd say look, i'm cold and i'm hungry. and for some years there had been considerable advocacy for so-called positive entitlements in constitutions. in the '70s and '80s, again post-churchillian. we saw this in eastern europe, south america, the a far pacifi where new constitutions were being imposed that had entitlement rights. the right to food, to shelter, to health care, to education. and a number of us who were
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commenting on these proposed constitutions explained that these could not be judicially enforceable. if they were, it would involve courts in allocation of funding, which was essentially -- a quintessentially political process. then the draftsman or proponent of the constitution told me, well, we can't get the constitution enacted if we don't have this and our suggestion was well, make them precatory, aspirational, say this is what we want to do but they're not judicially enforceable. at the council of europe, churchill in 1948 was very prescient about this exact problem. he strongly believed that there should be an international convention in europe to protect
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human rights. but he advocated that they be negative rights. he did not want positive right which is meant permanent big government and very unclear as to whether or not they're judicially enforceable so his strategy was to argue for the inclusion of negative rights in these covenants and that came to be, because of churchill's suggestions as well as many other others the european convention on human rights. it was opened for signature for accession in roam in 1950 and england became a signatory. it is indeed true that as a result the european court of human rights in strasburg can
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issue opinions invalidating all laws enacted by the parliament so the idea of parliamentary supremacy has been compromised in international documents. churchill was a very strong believer in parliamentary supremacy. he gave a fascinating speech to the american bar association in 1954 1954, being very gracious, he didn't criticize the united states judicial supremacy rule, the idea that a court can declare invalid an enactment of -- a 5-4 decision can declare invalid an act enacted by the entire congress and signed by the president. that's judicial review. he claimed he thought this was necessary, certainly defensible, because of our federal system and our size. but he defended very strongly, very strongly the idea of
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parliamentary supremacy. and he -- this did not mean he was not a defender of the judiciary. churchill was one of the great defenders of an independent judiciary. in england i was interested to find out in 1954 there was a proposal to raise judicial salaries but the parliament, including many members of churchill's temperament didn't want to do it because the funds were linked to their own. we've seen the same thing in the united states and churchill gave a magnificent speech saying it would be a slur on the reputation of this great house if self-interest of
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parliamentary members impaired the independence of the judiciary of england. and english judges to this day are admired the world over for their independence. some years ago, chief justice warren berger and chief justice of the united states was invited by lord hailsham to go to the opening of the ends of court that begins at michaelmas term. the reason being the young men that wanted to beer be wristerb wanted to go home to help with harvest. so what happens is that they go into westminster abby and there's a procession led by the lord chancellor and the lord chancellor invited warren berger to walk beside him going down
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the aisle of westminster abbey with all the judge behind him. and berger was thrilled. he looked right out of central casting. [ laughter ] . and so lord halesham was a very friendly man and the first group of church in the back were americans and other foreign visitors and the next group was the labor shadow government. so they were walking in and the lard chancellor said neal and the americans got down and genuflected. [ laughter ] and warren berger loved it. he said you know what they do in
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england. some of the people they kneel down. so i said you tell him, i'm not going to tell him. but churchill was a great defender of the judiciary. >> of the independence of the judiciary but also a great defender of parliamentary supremacy and that's your tradition until this day. i notice that we have the statesman award. not long ago it occurred to me that we have difficulty producing or identifying statesmen or states women in our era both here and abroad.
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and it occurred to me it might be interesting to define what a statesman or states woman is. rufus fears, the late professor of history and government at university of oklahoma made a suggestion and my suggestion follows it, i should have had a powerpoint for you but this is simple enough and i changed it a little. his idea was, number one, a statesman should have a moral compass. a moral framework. number two, a statesman or stateswoman should have vision. the ability to see, the opportunity for a great advance in human progress or the ability to see the portents of grave danger. and third the statesman or
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stateswoman should have the capacity the genius performing a consensus across party lines and it seems to me probably and i wish we could talk about this mortar so that i could get your advice you could add that he or she has to have the leadership ability to make it come about. i'm not sure the last is really necessary if you have a marvelous, say, u.s. senator or congressman or parliamentarian who has a brilliant idea and gets consensus. maybe they're not the ones to carry it out but whatever. the fourth element seems important. want churchill's moral framework? again, you can teach me so much but churchill once said that with respect to religion he
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wasn't a pillar of the anglican church he was a buttress because he was supported from the outside. but it seems to me that churchill's moral framework was directed in large part to his unyielding belief in the rule of law and the idea of freedom and he knew that this was the great contribution that england made to its people and to the rest of the world. in 2015, three years ago, we had the 800th anniversary of magna carta. and as important as we said it was, it seems to me it was grossly understated. magna carta for its time was you marie yanaka.
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you had great law documents, the 10 commandments, the code of hammura hammurabi, the 12 tables, justinian code. but all of these were laws given by the ruler to the people. magna carta was the other way around. magna carta affirm ed, magna carta established, magna carta proved, magna carta insisted that the law comes from the people to the king, not the other way around. and this was churchill's strong belief. he believed in the rule of law. he believed in the english tradition of law. he believed this was one of the great gifts to his own nation and to his own people. i shouldn't go on too much longer but the ability to have
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consensus was something marvelous that churchill taught us and established. one time in 1940, i think it was february, 1940, wendell willke, who lost the election to roosevelt was given a letter of introduction to churchill that roosevelt wrote out in his own hand. and roosevelt quoted from longfellow's ship of state. this is a very long poem about building a ship. talked about hammers and saws and the whole thing but the few lines that roosevelt quoted were "sail on, oh ship of state, sail on. sail on, oh, united great humanity with all its fears,
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with all its hopes of future years hangs breathless on thy fate." churchill read this letter from roosevelt to churchill to the house of commons. now look, the house of commons hearing, a letter from an american president with an american poet, not andrew marvel or william shakespeare or lord tenn tennyson and he asked what answer should we give in? and the answer is we shall not faulter, we shall not fail, give us the tools and we shall do the job. the tools being the hands and saws that longfellow talked about but also the tools that needed to win the war. this was his marvelous capacity to build consensus and he had
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the magnificent sense of balance and decency of the british people to help him. one time when i was in london in the '50s the english pacifist movement was at its height and they had brilliant leaders,er e be -- bertram russell, ajp taylor. they had a rally and the specific issue was they didn't want nuclear weapons on british soil so the movement was called ban the bomb and they had signs saying bam the bomb so there was a meeting at victoria and albert hall with ajp taylor and bertram russell and it was important for me to go so i could understand what they were talking about but i didn't agree with them so i was way off on the side and they had their rally and then it was suggested that we should all go to 10 downing street there to reassemble and there to demonstrate and it took kind of
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an hour to do. this i don't know how you got from victoria and albert hall to 10 downing. everyone knew, especially those of us on immigrant visas that this was a violation of the law. you cannot demonstrate, in those days at least, within a certain radius, a mile or something of parliament when it's sitting and 10 downing street is a prohibited zone but i wanted to see what happened so i came along and in order to show that i wasn't part of this group there was a little lawn as you turn into 10 downing street and i stood off on the lawn so that people were shooting ban the bomb and the police captain came on his horse with his -- the other bobbys and they were during he was arguing with a fellow with the sign and they looked over at me and the police officer went down and he held the man's sign and the man came over and said i beg your pardon, sir, you really must stand off the grass. [ laughter ] now, you see, you can break the law but you have to do in the a
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decent way. [ laughter [ laughter ] and this was the gift the english people that churchill knew, that churchill understood. and again for us churchill embodies the idea of a hit inment -- commitment to the law, commitment to freedom. and he would agree, i think, if we said the work of freedom is never done. thank you for thinking about it and talking about it here this evening. thank you. [ applause ]
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you can afford my hourly rate. thank you, randolph. we have 10 minutes. you know, i often think about the '20s and the great composers. we had jerome kern, we had gershwin. all at the same time. all the astaire/rogers moves was all at one time. where did that magic come at that one time? >> interesting, yes.
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>> why did we have the magic in the late 18th century. why so much genius at the same time? why madison? why jefferson? why ben franklin? what happened in our country that made that happen. >> accident, providence, design. of course the enlightenment changed the way we think about thought just as the cyber age does, and we can talk about that later. newton for over a century was the most popular person in the world. people hadn't read his great scientific work but this idea that the apple falls and the human mind of its own accord can know what the law. is this was liberating. and this dynamism of the enlightenment drove people to write and to think on their own.
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they didn't need help from a church, they didn't need help from government. they could think on their own, chris. and franklin wrote thousands of letters. adams the same and they were great writers. and i think it was that enlightenment and it didn't just come from england here. the framers, sons of the enlighten me enlightenment were fascinated with all sorts of clocks and wheels and gears and pendulums and that's why the american constitution has a certain new tonian metaphor to it. checks and balance, the congress enacts, the president vetoes, the congress overrides, the court reviews, like a pendulum or a clock. they were astute experts and
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students of human behavior. they knew that a paper document couldn't control human emotions unless there was a commitment, a human commitment but there is that new tonian metaphor and i think i was part of the enlightenment. >> let's bounce around to more recent history. ronald reagan appointed you. tell me, you were friends with ronald reagan. tell us about him for a few minutes. there's a guy who's an autodidact. he didn't have a great formal education. he thought himself so much. his writing was great. we found all his original writing from the '50s when he was writing his column all by himself. it wasn't edited. reagan played such a big role in the end of the cold war and modern conservatism and he's ranked among the top presidents. what do you know about him we don't know? >> well, he knew what he believed and he believed what he
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believed. i had good access to him. i had done a few little legal things for him and lived in sacramento and he and nancy liked mary very much and i told him there's two things you can never ask me. he said oh, what's that? [ laughter ] and i said one, you can't ask me about politics, i don't know anything about it. i was a practitioner. i was a business lawyer. and plus he had ed meese and one of the great political teams and he said one what's the other thing i can't ask you about. i said don't ever ask me who should be appointed a judge. i peer in these state courts, sacramento was headquarters for rural counties and if you get the reputation as a judge maker, a judge breaker it's not good for your relation with the bench. you're afraid he's going to bend over backwards for you, which you don't want or against you.
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so i had good access. one time i was in his office early on and deaver came rushing in and he said governor, your friends from hollywood are here. he said oh, what do they want. they said we thought they were coming tomorrow. they'll tell you so in comes john wayne, henry fonda and charlton heston and i told the governor, i'll leave you. he said no, i need to see you and deaver so the hollywood thing, how good everybody looks. [ laughter ] but you would never slap reagan on the should. he's like george washington. reagan had this distance. in part because he was old softy, he'd tear up and he said "what brings you to sacramento?"
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they said we're here about the arts commission. what's the arts commission? it's a state commission that gives funds for poets and playwrights and sculptors and novelists. and artists and the legislature is cutting their budget forget the numbers, i'll make it up, $18 million to $14 million. and reagan said i'm glad you told me that, i'm against that. he said i'll veto the $14 million. they said no, no, no. we have the $14 million. we need the $18 million. well, the world's most unsuccessful lobbying commission begins to unfold before my eyes. [ laughter ] he said no, no, now, if we start saying what's good art and what's bad art, that's not for the government to do. that's not much money, go do that. vetoed the whole thing.
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[ laughter ] you might agree or disagree with it but he knew what he believed. he believed what he believed and frankly was right so many people, chris a great proponent and defender as you ought to be of the first amendment, so many people think the first amendment is moral relativism. the supreme court writes every book is as good as every other book. every film is as good as every other -- well, that's a bunch of junk. well, all the first amendment is saying is the government doesn't tell you. it doesn't mean that you shouldn't and the very fact that the government can't be involved means you should be involved and the next time you see a tv show where they're reviewing a book
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or movie and it's trash someone will say oh, there's a first amendment right. i mow theknow there's a first at right. it's junk. and this culture is becoming vulgar and this culture is one that should not embrace moral relativis relativism. that's not what the first amendment says they say the government doesn't make the rule but you can and you should and you must in order to prove the rest of the world is looking at the united states to see what freedom looks like it's up to us to show a culture, a discourse, a civic dialogue that's enviable and admirable and your contribution is needed. and they mix this up.
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>> people think if it's legal, it's okay. >> right. >> let me ask you about you and you are beloved on the liberal side for your decisions on the lawrence case on same sex, on kc, on the undue burden on a right to abortion, on those issues. you're not liked so much on citizens united and the other decisions you make. i think you're a conservative. well, let me ask that question. are you a conservative? is that a fair reputation for you? >> i'm not sure. i'm a conservative in that i am suspicious of big government. i'm conservative in that i think no government has ever given you
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freedom unless you have some rights of property. and most zoning experts think they own your property so i'm conservative in that but i think a conservative really has the duty to embrace change so that the basic ideas can remain in for force. and the framers use words like life, liberty, property. the framers knew all of the specifics, all of the details of a just society and they would have written them out. they didn't. they knew that wisdom comes to
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you over time and they were not presumptuous enough to say that we know what you should do in the next 50, 100, now 200 plus years. they use these magnificent but general phrases knowing that the whole idea of human freedom, human knowledge is that we understand ourselves over time. >> thank you. thank you justice. thank you, justice kennedy. >> didn't you have something more that you wanted to say? >> all right, you want more. >> no, i want you to talk. i wanted -- >> no, because i think churchillian and british tory philosophy about conservatism is not hold the line. it's understanding how to preserve the cohesion of society by making changes. >> that's what you have to do. >> and to me same-sex marriage
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keeps society together. it allows marriage to replace the bathhouses. replaces promiscuity. i think it's a very conservative documents and abortion rights, i think we have the same view but legally i cannot imagine a limited government stopping people from having abortions and we want a limited government. >> one of my favorite scenes in movies is "guess who's coming to dinner" and spencer tracy and he has 24 hours to make up his mind about interracial marriage and he finally gets -- he hears all this stuff and he goes out on the terrace in san francisco overlooking the golden gate bridge and he says i'll be darned. a judge must always ask himself, ask herself, why am i about to do this? and you owe that to the litigants. you owe the litigant the duty every time that litigant comes
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before you of asking yourself anew why you are doing this and this is the oath that you take and sometimes you surprise yourse yourself. in the gay marriage case you mentioned, we found that there were over 100,000 young children who were the children of gay parents. and to say they should be stigmatized by a governmental action seemed to be wrong. >> i was watching "guess who's coming to dinner swaziland africa in a theater filled with africans" and when spencer tracy ruled again -- he wassing back because katharine hepburn was for it and he was against and then the african person says he talks like a judge. so it's right.
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thank you so much. [ applause ] >> thank you, please sit down. justice kennedy commented that leadership could well be part of statesmanship. i would argue statesmanship is certainly part of leadership. and our national leadership award presentation tonight there is no question that justice kennedy has proven himself a natural leader. he builds consensus and has done all his career. he has been the quintessential statementsman on the supreme court. he has never been afraid to lead
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and he has never lost his moral compass amend has always known where his true north is. that's a leader and justice kennedy is a leader. it's my privilege tonight to give him the winston s. churchill national leadership award. >> thank you so very, very much. thank you very, very much. you've got justice kennedy, this comes really, i can hold it for about 10 seconds so i think we'll give it to you later. >> fantastic, this is beautiful and i will hold it in trust for all that we believe in for freedom. thank you. [ applause ] how gracious of you. thank you very much.
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this weekend on reel america on american history tv, the 1967 special news series, a cbs news inquiry, the warren report anchored by walter cronkite investigating unanswered questions into president john f. kennedy's assassination. >> sunday, november 24, the mob scene continues as oswald is brought into the basement of the police building for transport and then in full sight of millions of television viewers a man jimmed janamed jack ruby su through the crowd and shoots lee oswald dead. >> watch on c-span 3. >> each week american artifacts takes you to museums and historic places to learn about american history. in

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