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tv   U.S. U.K. Supreme Courts  CSPAN  May 31, 2019 6:41pm-8:04pm EDT

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welcome to washington d.c. where 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 k edgar hoover. he has been interrogating the complex relationship between politics and the law.
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now he compares the constitutional model of the united states and the uk. please welcome- >> good evening, when the french political writer visited the united states in the 1930s, 1830s, forgive me. one of the things that struck him most forcibly was the space occupied by employers in the public life of the nation. in his classic account of early american democracy they suggest is that lawyers task as exceeded of the old landed aristocracy. they share the habits and above all they shared contempt for
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popular opinion. the more we reflect on all that occurs in the united states the more we will find that the lawyers as a form the most powerful if not for the democratic element in the constitution. there isn't that something that doesn't resolve itself through a judicial question. there is only one other country that they could think of where it enjoyed a comfortable influence over public affairs and that country was written. a new addition for the day would probably make the same point. the twin scenes of these lectures would be the decline of politics and the rise of law to fill the void.
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i have argued it depends on their survival-one is by system of fundamental law 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. in the long run political constraints on the power of majorities are likely to be more receptive legal funds. why do we believe in democracy?
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what are the proper limits of democratic-what rights 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 is an aspiration, sometimes as a warning. in spite of a close similarity the american constitutional tradition is the polar opposite of the british one. at its most basic level the differences between two models of the state a legal model and a political one. the constitution of the united states is the archetypal legal constitution written by comparison has historically been
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for the political state. in britain as in many other countries including the united states we have witnessed a mounting height of hostility with representative politics over the last three or four decades. this has naturally been accompanied by a growing interest in the legal constitutional model especially among the judiciary. this is a good sign to be assessing and washington is a good base in which to do it. 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 of any constitution is to provide a framework of political rules for making connective decisions. in its original form the constitution
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of the united states has almost nothing else in protection of rights came later with the amendments pushed together constitute the bill of rights. 12 years later came the decision of the supreme court which established the power of the supreme court establish acts of congress. by the beginning of the 19th century the united states constitution had acquired the three basic features which have come to be regarded as the hallmark of every legal constitution, first, a written code of rights which prevails before other law and secondly it is proof against political commitment except by some extraordinary procedure such as a super majority or a popular referendum.
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it confers on judges the power to enforce constitutional rights to strike down any act of the state including the legislation- by comparison in britain at any rate the constitutional theory there are no constitutional limits on the power of the british parliament. there is no fundamental law which parliament cannot alter that will. even the tree of the european union which have prevailed over domestic legislation the past 46 years do so only by virtue of active parliament which can be repealed that will. we are almost the only country in the world of which this is true. the difference between the legal and political model-
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almost all constitutions have some element-the united states has a sophisticated doctrine of the separation of powers which reserves a large space of political judgment. in britain law has always had a place in the political constitution. nonetheless, the conceptual difference between the legal and the political model remains a real one which exposes two different very to very different views of democracy. the attraction of the legal model is that it is based on the body of principal. applied by those who perceptions could be persuaded by passion, prejudice, and those of politicians patronizing
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overtones are obvious. the legal model seeks to create and it's at the kissed do not trust institutions to form opinions about them. for moral instability. they therefore favor power to judges who superior qualities and public opinion -- 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 governments. madison looked for solution to the representative principal.
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he expected lawmakers to be wiser and more circumspect than their electors. for later generations, however, the representative principal has not been enough. distrust of elected majorities and fear of majoritarian 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, prejudiced in 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
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that we have to ask ourselves why we believe in the vote at all. there are surely two main reasons. in the first place all governmental authority, which is not based simply on force, requires some sort of legitimacy. if a political community is to have any long-term stability, then people have to have a reason for obeying laws that they do not like, other than the threat of coercion. we the people is the emotional foundation of democracy in britain as well as 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 it reflects our sense of social and political equality. thomas jefferson wrote in one of his letters to the german scientist alexander von humboldt
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that 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 have all have our own way. what we can expect is that the decision-making 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 decision-making, even if as individual voters are influence on the outcome is minimal. a constitution which was not based on democratic choice but on some embedded schema values, such as liberalism, human rights
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, islamic political theology, or the dictatorship of the proletariat, would not achieve this. it would privilege the citizens who happens to agree with these values. that might not matter if 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 more rectitude, but participation. the proper function of a constitution is to determine how we participate in the decision-making processes of the state and not to determine
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what the outcome should be. whether voters act from good or bad votives is really not the point. we cannot make constitution for some imaginary world in which people are without prejudices or in different to their own interests. all that a political system can really aspire to do is to provide a method of decision- making, which has the best chance of accommodating disagreements between citizens as they actually are. that calls for political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interest and opinions. this is arguably a more important priority for political community then finding the right answers to its moral dilemmas, even
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assuming that there are right answers are that we can finally hit on them. the problem about the legal bottle is that it is marginalized the political process. when a judge identifies something as a constitutional or human or a fundamental right, he saying that it is derived from a higher law than the ordinary decision-making 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 most interesting example is the due process law of the 14th amendment. it provides among other things
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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. that protects private life. both provisions have been interpreted as potentially embracing any interference with the personal autonomy of individuals within limits. all mandatory rules of law interfere with the personal autonomy of the individuals. that is what they are therefore. 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 the judgment about which interferences with personal
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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 concerning 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's perceived them to be.
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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 the point. when a judge is asked to decide the 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 liberal 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 lochner era of the 1890s
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and 1930s, the court struck down as unconstitutional some 150 pieces of employee protection legislation under the due process clause. they did this on the grounds that liberty requires absolute freedom of contract, subject only to limited considerations of public policy. among the laws that they struck down state laws limiting hours of work in the interests of health, guaranteeing the 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 of the abortion. it was from the newly discovered constitutional right of privacy and autonomy.
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the same reasoning, in a sense, lay behind the courts decision more recently about same-sex marriage in 2015. in both cases the supreme court's decisions were unnecessarily based on the perception of the justices. this is what liberty now requires, 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. 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
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of political valued judgment. the case for or against labor regulations 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 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 lochner era had been on the statute books in britain since the middle of the 19th century it had got there but ordinary legislation and by political action.
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the justification commonly put forward for treating such matters as constitutional issues is that it protects minorities against majority tyranny. but what constitutes majoritarian tyranny? it very much depends on how you defined your majority and what you regard as tyranny, except perhaps in classics nation cases with the ends meaning principles is to treat those cases like. there are no legal standards by which these questions can be answered. the only available standards are political ones. there is also, although i perhaps hesitate to make the point here, a wider issue, namely whether it is wise to make the law in this way. i recognize that partisan divisions and institutional blockages in congress have made controversial legislative
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change difficult to achieve in the united states. i recognize that encourages those who look for a judicial revolution of major social issues. but the chief function of any political system is to accommodate different sorts of interested 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 this irreversibly unless the supreme court changes its mind or over constitution. personally i'm in favor of regulation right of abortion, but i question whether it can be
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properly treated as a fundamental right. abortion was once highly controversial in britain. after extensive parliamentary debate it was introduced by ordinary legislation in 1967 within carefully defined limits and subject to the framework of regulation. the same pattern was followed in europe were all but one state have now legislated for a regulated right of abortion. as a result abortion remains controversial. i suspect, although i cannot prove it, but one reason why abortion remains so controversial in the united states is that it was introduced judicially, i.e., by a method which relegated the
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wider political debate to americans. instead the debate is concentrated by the candidness of the supreme court with results that were apparent in the undignified party and procedures in the most recent confirmation hearings. is inaugural addressed, first inaugural address in 1861, abraham lincoln drew attention to the implications of filling gaps in the constitution by judicial decision. his words are very well known. the cat ended the citizen, he said, must convince that if the policy of the government on by the questions affecting the whole people is to be irrevocably fixed by decisions of the supreme court. the people will have reason to be their own having to that extent drastically resigned the government into the hands of
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that evident tribunal. lincoln had in mind the notorious supreme court decision from dred scott which had held that african-americans were not to be treated differently. but he was also making a broader point, which was about -- that the nation cannot help 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 impeaching claim to legitimacy, but it is really to substitute for politics. i'm certainly not saying that there are no rights which should be constitutionally protected in this democracy. but i think that one lesson which britain can learn from the u.s. experience is that one must be very careful about which rights one regards as a
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fundamental as to be beyond democratic choice. i suggested in a previous lecture that in democracy there are only two kinds of rights 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 crude contests in the exercise of force. and there are rights such as freedom of expression, assembly, and association about which a community cannot function as a democracy at all. these rights was certainly not be enough to prevent majoritarian tyranny. but no code of rights would do that. the law simply has no solution to the problem of majoritarian tyranny. even in a system that is perfectly entrenched in constitutional rights like that of the u.s.. the public authority have a
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proper legal basis for everything they do, but law can supply the basic level of security on which civilized existence depends. laws can protect minorities identified by some personal characteristics such as gender, race, or sexual orientation from discrimination. but the courts cannot carry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves. the only effective constraints on the abuse of democratic power are political. they depend on active citizenship on a culture of political sensitivity and on the capacity of representative institutions to perform their traditional role of accommodating division and mediating dissent.
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that no longer happens in the united states or in some areas of britain it is because our political culture has lost the capacity to identify common premises, prompt 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 learned that hand confessed that 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 with that the spirit of moderation is gone, that a society where that flourishes, no court need save.
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but a society which evades its responsibilities by thrusting on the courts the nature of that spirit, that spirit will in the end parish. 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 series i should look at cause to introduce one in the united kingdom and what such a constitution might say. thank you. >> we had a slight technical glitch at the beginning. so if you don't mind just doing your first couple of lines and we could come up with applause again.
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>> tell me which part. just wait until i get out my heels out of the way. so you like, you can start wherever. when the french political writer visited the u.s. in the 1830s, one of the things that struck him most forcibly was the dominant place occupied by loyals in the public life of the nation. >> jonathan, thank you very much indeed. once again, join us. have a seat. while they are adjusting the microphones, can i remind you if you would like to ask a question, put your hand up and wait until i bring the microphone to you. and you say where you are from and if you represent an organization which one that might be. so if we could have a
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microphone right there. nano sorry. right here. and we will come back and if we can get a microphone while we are waiting, we will start with you. hello. angela, thank you. >> i am an american constitutional lawyer, and it was wonderful lecture and i appreciate it except the way you misstated constitutional law that when the government has the power to act in the first place. my question for you is can we really compare two systems, one in which the people of you will write that is without government and one in which a right is viewed as ran by government. and if so, how is the right in the european system any different from a privilege if
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it can be revoked?>> i'm not sure i understand the whole of that question. first of all, i entirely agree with you that a prime function of the courts, and i think i recognized this is to ensure that governments have the power to do and that is a common factor between the united states and great britain. but what i'm interested in is the role of the courts in inhibiting or imposing policy choices which is, i think, a different question altogether. can remind me of the second half of your question? >> is there if is there a principal distinction between a privilege in a system where rights come through government or granted by government and right. if the government can take it away, what makes the difference with a privilege?
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>> i'm not aware that the government in the united states or in this country -- or in the united kingdom -- has the constitutional power to confer rights unless it is exercising a statutory power to do so. i'm not entirely sure how the problem arises. your obviously right in saying that if the government has the power either to confirm or to take away rights on its own initiative, i.e., without a specific statutory power it wouldn't differ from a privilege at all. >> can i ask a supplementary question to that? it is not the case of old world arrogance that you will come over here and tell these good people when the majority of countries in the world right now have written constitutions that we do it better not just because we did at first, but we
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do it better because we haven't written it down.>> i haven't said we do better. i think we obviously start from completely different points of view. in the us a written constitution on the legal model has nearly a quarter of a millennium of history. so that is where you start and i'm not for one moment suggesting that it is something that you should dispose of or modify. it's 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 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 legal model, then it seems sensible to me that one should look at
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the experience preeminently, that of the u.s., before managing such a model. the u.s. constitution experience demonstrated that there are dilemmas when you try 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 and be entirely different political constitution environment of my country.>> you do believe that we are more flexible because we have an unwritten -- is that true or not true that you believe we have more flexibility because we have an unwritten constitution. i believe we have a great deal of flexibility i don't want to suggest that the united states lacks that degree of
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flexibility. you only have to look at some of the major supreme court decisions in order to see the way in which differing values have offered the law by judges. and obvious is brown versus board of education, which abolished the free separate but equal doctrine in education thereby overruling an earlier supreme court decision six years earlier. it did that because values had changed and because perceptions of the facts had changed, although the facts were it was never equal, even on the earlier occasion. >> let's take another question. there's lady with a microphone. >> thank you very much. i'd like to ask the question with regard -- particularly looking at those who don't
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acknowledge that hitler was actually elected democratically the german people were over 93% of the german public voted. so going back to the quote that democracy is not a form of government, three countries where there were female leaders were all parliamentary systems, that is golda meier, margaret thatcher and indira gandhi. what do you think about the democratic parliamentary system and you think that is superior in terms of juxtaposing the u.s. system? >> i dealt with this question in some detail in a perspective. i very strongly -- direct democracy has serious problems, problems that were anticipated notably by madison but in the fact, by many of the early
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constitution. i'm a strong believer in representative democracy, precisely because i think that representatives are in a position to take a broader view about the long-term interests of a nation rather than a snapshot produced by each referendum could ever do. 's of the implication of your question was that i was a believer in some way of direct democracy, i'm not. i think that the advantage of the representative systems is that it is a better method over a broader range of politics of constraining the impulses and the self interest of majorities. it often fails, but it's better than any possible alternative,
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which is an echo, i think of your quote from winston churchill. i wasn't sure whether you are asking separate questions about the relevance of female heads of state, were you? >> because you say couldn't happen in the u.s.. do think that's because the parliamentary systems? >> i think that if you -- i don't agree with the suggestion that they could only happen in a parliamentary system. i think the direct election or ahead of state can be more polarizing and a canned produce outsiders, which can be an advantage or disadvantage without dwelling on personalities. i readily think of two countries whose heads of state was recently elected, who was a complete outsider to the political field, and the results in each case have been
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totally different. so 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 stay, 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 the side and then who us would like question on the site? the gentleman right in front. yes, sir. >> tim campbell. i am an attorney at the department of veteran affairs. i just wonder what you would say to tocqueville. because it is also famous in the us to see that political questions -- >> well, i quoted that and that was the beginning of my lecture. i think -- me, the top field,
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like all political analysts occasionally exaggerated it to achieve impact, but there's a basic truth in what he had to say. it is an astonishing work to have been written in the 1830s, part prophecy. but he was a very different society, but he was talking about the implications of the constitutional system. >> do you want to come back? >> no.>> let's go to the question here in front. >> what i am treat by is the total absence of any kind of racial analysis when it comes to the interpretation of the usage of constitution and law
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in the united states because it is basically the constitution and the language that was put in there that gave black folks the opportunity to hope that those words would be interpreted in a way that would lead toward their emancipation. and that eventually happened is attitudes got changed, but the reality is if we waited for attitudes to change, it would never happen, which was our process had almost 400 years of slavery. so in a sense it was the words in the constitution was the battleground to get people to get brown versus board of education, even though the decision failed, but it kept coming up because constitution was guaranteed. what is your perspective on that analysis? >> meditation wasn't achieved by the original constitution, and indeed it wasn't achieved in a real sense by the constitution at any stage. it was achieved by a seven year bloody civil war.
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the results of that civil war were subsequently embodied in the amendments of the constitution which immediately followed it. i think it is clearly right that the original constitution was -- effectively it did not deal with slavery. it was ambiguous on the subject, and that was because it was the subject in which the founding fathers would probably never have been able to agree. and that was a missed opportunity at the time when slaves were beginning to be emancipated in much of the rest of the civilized world. >> let me come back. because in a sense the emancipation was a battleground that was fought out in the civil war but also find out in the legislature. and that was the reality. but the real issue is what
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follows after reconstruction is jim crow in this country and it was basically jim crow got taken down by -- critics got taken down by basically the challenge of the law that forged legislative bodies to have to do with things like segregation and had to deal with things like public accommodations. that is basically was the battleground in which we thought as well as in the street. >> that battle was one politically. i agree that the supreme courts contributed something to it rather late in brown versus board of education a particular. but essentially, as i read the situation historically, and correct me if i'm wrong, the legislation of the 1960s and subsequently what was really produced that change. that seems to me to be the way
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that 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 later stages of the civil war was fought had much more influence on the judiciary than it did in the late 19th century and not in the middle of the 20th. >> a question from a lady next to. >> i am a writer from philadelphia. i wanted 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
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apartheid state with multi- tiers of laws that are applied to people based on ethnicity and religion. and the indigenous population cannot mount a movement that could legally challenge that because there is no constitution in israel. in the united states that kind of civil rights and social justice movement was launched. the infrastructure that allow 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 an answer to the previous question. i think that the assumption that men are equal is stated in
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the u.s. constitution but is implicit in just about every constitution i can think of, including unwritten ones like ours. the case of israel, which you raise is interesting. it is true that israel has no written constitution although in the course of the 1990s it's supreme court to create a form of entrenched rights, which were previously being thought impossible. i agree that the way the israeli state works marginalizes the 10% or so of the knesset which is elected from arid constituencies. the reason why it marginalizes that 10% is that there is an unspoken convention among all non-arab parties that they will
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not enter into the coalition with a representative of the arab constituency and they are effectively left as a minority. that doesn't seem to me to be constitutional problem, it's a political problem. and when i say it is not a constitutional problem, it is not a problem which is due to the israeli constitution or the lack of constitution. any constitution that i can think of would have been ineffective. majority in parliament from acting to marginalize a minority i think you would regret and i think that is ability which is not 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
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of a written constitution. >> someone in the middle. if i could get the microphone. person in pink has been waiting very patiently. and i see more hands. a lady over there. yes, in the green jacket. thank you. >> my name is brian chung. i'm a graduate of this university and of queens college in oxford. my question is about popular minorities, in particular in asia. both in the u.s. and the uk we are seeing that leaders have come to power that they are asylum-seekers and religious groups and commerce in parliament have gone along. my question is how would your
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constitutional law or policies protect the rights of these minorities? is your party said, some of these people giving knowledge that the law will protect some people, but there are other people whom they have characteristics not all can be protected. >> thank you very much. >> as i understand it, the u.s. constitution does not permit the executive to operate a system for admitting migrants which is biased on racial or religious grounds. certainly that is the principal in the united kingdom and as far as i'm aware all european countries. -- and immigration policy of
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some kind. and it seems to me likely that in any democratic country there will be laws which restrict the rights to migrate into that country. i don't regard that as inherently objectionable. i would certainly regard it as inherently objectionable if these laws operated by discriminating between some races or religions than others. but i am not sure i would except that migrants can be regarded as a minority in the sense in which you mean. >> can i just ask a supplementary question? which system, written constitution or non-written constitution?>> i don't really think there is any difference. it would be possible for the united kingdom to have laws which discriminate against migrants. perhaps we don't do
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that. it would not be possible in the united states and in that sense clearly the american system has a more durable protection. at the same time there are many things in any constitutional in one with which to prevent but which are already prevented politically and i think that our system does politically protect minorities from ethnic religious discrimination. >> question lady over there.>> i come from georgia -- the other georgia. my question is -- >> i did not quite hear that.
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>> the question is is it because of the political system that the uk has? >> different from other eu countries what do you think it is the reaction to the decline of policy? >> i'm not sure that i think that either is true. i think that brexit is the result of an economic frustration which is not in the united kingdom, but it is strongly felt -- it is partly the result of a romantic view of the british past, which is in some respects very different of the past of other european countries in that after the second world war every european country had been invaded and
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had had his existing political system effectively destroyed either in the course of the war itself on the course of the nazi conquest which proceeded. 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 that is an illusion. historically i think that is the explanation. i do not think this is anything to do with our constitution. in some respect, we adopted emotive decision-making and making referendums on a particular issue, which i think the constitution was completely
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misguided. i think it was misguided because it was the method of circumventing the ordinary political process. as i explained in summarizing the point that 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 softening the impulses of the democratic majorities 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 create a situation in which 52% of the population consider them spells
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to be speaking for the entirety of the united kingdom. and 48% it didn't matter to 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 disagreement within a citizen body, that is the state of affairs that you're likely to regard, as i do, is completely unacceptable. >> if the brexit situation is a stress test showing the cracks in our system, or the creeks, certainly, what does the current tango between president trump and robert mueller and all the things that go with it tell us about the american system right now? >> why don't think that has anything to do with brexit or any of the underlying problems. no. no. but if you regard brexit as a
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stress test for our system, what is revealing to you? >> brexit is a much more severe test for our system than that particular dispute is for your system. as i understand it, the present position is 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 and whether the courts have any power, which they are likely to exercise, to compel with a subpoena in the absence of proceedings by the department of justice. >> you said he took a very prominent role and you know a thing or two about redacted
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documents and the power that they have. right now we are in a situation where the president has given an executive order and you cannot see redacted documents that some people have already seen. was so what is your response to that? >> my response to that is it is appalling. 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 is wrong, but if you ask my view politically, is it sensible in the sophisticated society for the president to be allowed to say i've been entirely exonerated and then not disclose the documents in which he claims to have been exonerated? no, i do not think that is a sensible way to run your affairs.>> thank you. there are now a forest of hands going up. let's have a microphone here. there is a hand here at the
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front. >> carl lockhart, graduated university school of virginia law. you don't seem to be a big fan of judges or the majority. you seem to see that there is attorney of majority workings. and i'm guessing -- i'm trying to figure out what your solutions are and i want to propose to and see what your thoughts are. one is the role of elected judges which takes place in many states, and the second is the role federalism, which we have here which did not get touched on in the decentralization of power and how it allows for majorities at smaller levels to make decisions for localities rather than a national majority marginalizing 40% of the population, as in the case of rex it.>> we don't have elected judges in the united kingdom, and i'm not aware of any other country which does have them.
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personally i find the idea of people standing for election on the basis of their own program very unsatisfactory. i'm glad we don't have judges. your point about federalism, yes, federalism does have the advantage that it enables smaller units to make decisions, and, therefore, it admits a greater variety of off since. one area where would have made a difference is the one you mentioned, namely brexit. it would not be possible for different parts of the united kingdom to have different international treaties like other countries of europe or in the united states either. but as a general rule your obviously right to say that federalism does have certain advantages and in some aspects
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of federalism are already in force. there are separate parliament and they have very considerable powers for scotland and wales and northern ireland.>> i thing we came across to escape brexit, if there any non-brexit questions, we would be very happy to take them. we can take that one from the front and let's see, there is a gentleman over there who has been very patiently waiting. i'm going to come to you as well. don't worry. but your hand up again? yes or. there you go. so you are second. gentleman in the front. >> a lawyer in washington, d.c. i wanted to probe further on your view of the role of judges. good made the observation in
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reference to due process that americans justices sometimes seem to advocate power and almost act as legislators. and through the practice of interpretation of legislation and of the constitution. i was 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 impacts on the outcome of statements of controversy. and in that case, what is really the difference between written and an unwritten constitution if judges, must be the arbiters, still have this awesome power of interpretation. >> just say who you are. >> i am a lawyer in washington, d.c. >> judges in the united kingdom
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have the same power of interpreting as they do in the united states, although they carry that power less far than supreme court. but they're basically the theoretical framework is the same. and moreover judges in the united kingdom have the same appetites for developing rights as many -- that is something which i think -- and i think it is undesirable. the difference between our system is that what the supreme court decides to be a right -- a constitutional right is there after written in stone unless
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the supreme court itself modifies its view subsequently, or there is a constitutional amendment whereas in the united kingdom there are no rights that cannot be modified by parliamentary legislation if necessary by a single vote. >> thank you very much. >> i'm jim feldman. i am an attorney here in washington, d.c. you emphasize a lot, and the whole question of the standpoint of what is most effective in a democratic system, so one important strand of american constitutionalism has been the part of the constitutional right that protects the democracy itself and i'm thinking in particular of the one person, one vote and other decisions as well that have protected the democracy itself where -- and allowed us
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to have a democratic system in the first place. and i realize that england -- the united kingdom has come about this in a different way. but it does seem like it is an important and effective role that a constitutional system should have. >> i agree with you in the lecture i've just given. i said that i thought that there were two categories of rights which in any system are fundamental. one is the group of rights which essentially protects you from protect you from life and liberty and the other is a body of rights like freedom of association, one person, one vote, which are essential for the survival of any democratic system. now, it is perfectly true, that in the united kingdom, we do not have a written document by
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which the constitutionality of legislation would be judged. it would be theoretically possible for the legislature to abolish elections or provide that certainty were we should have two votes and all the other things. that would be theoretically possible. but you have to ask yourself, what is the most -- what are the various effective ways given one's own history and one's own tradition of dealing with this? to my mind, the political system governed by powerful inventions, it has proved historically to be highly effective method for preventing that from happening. i cannot see it happening in the uk. now, and earlier question i pointed out that it did, of course, happen in germany in
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the 1930s. the problem is if you reach a stage where your society so fragmented that you cannot rely on political conventions to avoid that kind of misfortune, then your sunk anyways.
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the idea that this proves
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that we are democracy. it trumps up your votes. indeed during the primaries the party managers prevented bernie sanders from being elected. if a least make mistakes. they say that still the best system. with the dimock chrissy it's the government as opposed to when you have the elite role. >> i think there are failures and problems associated. i think what you have to remember is that democracy whether direct or indirect was decision-making. it's the method that seeks to
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accommodate. and indirect democracy is much more likely to achieve that. my view is exactly the same, the different models of democracy. that i know of. i think that what madison said back in the 1780s is american politics. and to politics and generally in other countries.
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>> my thank you to all of you at george washington university. and most especially to anita anand. thank you very much. leading up to the anniversary of the d-day invasion, a series of programs highlighting various aspects. the conference was cohosted by the eisenhower institute. and the society. john mcmanus talks about his book the dead and those about to die which tells the story of the first infantry division nickname the big red one. after that susan eisenhower talks about her grandfather and his leadership skills, and naval historian talks about general eisenhower and the
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decisions that led to the success of the d-day invasion. after that world war two historians and scholars discuss the event and his legacy as a supreme commander. revisiting the roots and abolition of african-american storytelling at colonial williamsburg. >> i said when you put on these pieces of clothing, it makes you feel important. it inspires you. it makes you think that the 18th-century was what it means to be an american. when i wear the clothes i wear,
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i feel like a slave. on sunday we continue the coverage of the 75th anniversary of d-day at 6 pm on american artifacts. with historians, authors, and reenactors. >> there was some hesitation about what they should do. but the systems division commander, theodore roosevelt, the son of the present. the oldest participant in the invasion said very defiantly that were going to start the war right here. at 6:30 pm. veteran david talks about landing on utah beach. >> they normally talk about omaha, we lost 179 men there on
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omaha beach. the next day this week and on american history to the on c- span three. john mcmanus talks about his book "the dead and those about to die lowe's. he tells the story the first infantry division nicknamed the big red one. and how they were the first combat soldiers to storm the normandy bases beaches.


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