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tv   Book Discussion on The Court and the World  CSPAN  December 24, 2015 3:07am-4:13am EST

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[applause] >> among his many books he has written at the national constitution center advisory board central to the creation of this beautiful national treasure rich was founded during the bicentennial to bring together people of different perspectives to debate the constitution and to learn about it. thanks to his inspiration and we will announce the launch of a do interactive constitution and the you can see behind me
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>> that the american fourth amendment had a very direct influence on japan with general macarthur tracked -- drafted the japanese constitution he bitterly cut and pasted so the words are almost exactly the same 53 percent of the text matches by contrast look at the russian constitution it is up provision that spouses cannot testify against one another and it is only 3% similar. so this would inspire citizens to engage in foreign constitution's some justice beyer how can they use this tool to learn about the relevance of the international constitution? >> take you for inviting me
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for the inauguration but this has so changed it is fabulous to walk around and look at this and you have done a fabulous job. >> i see my friends from the third circuit it is great i used to be a judge of the first circuit of the third circuit was very much like the first place to have our conferences together and we would plan dinner. [laughter] it was fun. thank you for coming now
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this of course, i heard a story of constitutional history that morris that i thought was governor of new york but he is not that is just his neighbor go but maybe new jersey but he signed the constitution and was a very, very good politician. really good man later he went to for rate -- france during the revolution and for some reason louis vxi asked him for advice. he said giving advice about what to do with the middle of the revolution. it starts off, your i will live vice you to do that
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which is the farthest thing for any human being to do. do nothing. in by that bushelful it would be terrible everybody looked furious. look for someone to blame. no one will think of you if you will still be king. [laughter] so if i had known about this i could have done nothing. [laughter] >> but this is fabulous. and to get circulated and i think students would be interested in and learn something with the objective
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of all these foundations to pass on to the next generation and of values that we have inherited and tried to maintain democracy and human rights. at past to be passed along. and we have to have these improvements fabulous. thank you. >> talk about this great book you make a claim that you suggest is modest but you also acknowledges contested at the moment and judges should pay attention to developments in the of what -- rest of the world and i want to give a sense whether or not you think it is a good idea.
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and those that deal with for a lot and it is so important and of relevance and how broadly to construe that. >> in so far that we should not refer to what goes on a broad. look at the nature of how the docket has changed. more and more cases cover up that require us to know what happens beyond our shores. and i categorize them and explain why.
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a woman of the supreme court the cave in to your kid the 1970's and better discover the man from paraguay who worked for the dictator and tortured her brother to death. she also found a statute that was passed almost 200 years before probably to help the victims of pirates and she said that i can have a claim for damages in federal court. she went back to paraguay and i came away with so much more. as a result of many cases brought, all kinds of questions raised the
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dictator of paraguay was not the only human-rights and they brought cases and hawaii. and it falls to the federal courts to interpret and it is not as easy as you might think. who are today's by ritz -- pirates? and what happens whenever the files of brief to save the problem of dealing with the victims of apartheid in the perpetrator is what we're dealing with the truth and reconciliation commission and we don't want federal judges interfering. but when do we interfere and when do we not? had to get the statute to fit within a network of
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statutes that exists throughout the world? so we don't cancel each other that is more trouble than helping. do we want to have an interpretation that will allowrin proceedings? this is just an example example, probably not. but you get the nature of the problem. non-interference you can i interpret this as we have tried to do on tour three occasions without looking into the questions of where does this go with the international criminal court or the host of other laws. that is one example. there others. commerce, a civil liberty, security, .
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>> one that is interesting is copyright and the student who wanted to buy books abroad that were cheaper so tell us. >> the reason i bring that up is of course, of the environment, a security, commerce their international. we hear the word interdependent globalization. shrinking world. it is a total cliche to the total complete the incomprehensible abstraction and i would like to make these very concrete so people can say what it means not just for the court were the judges and lawyers but the average american. true i only looked at it through the lens of the court because that is what i know but a commerce is in front of us on the day the other case involves the
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privacy problem with the nsa. i did not mean that. [laughter] >> it is the constitution center. [laughter] one of the cases is a student from thailand who was studying at cornell. the very same textbook is half the price in thailand so he writes to his parents to say please send me a few copies and they did. board and a few. so he began to sell them. this ups that the publisher who brought a lawsuit so try to interpret a technical set of words in the copyright act that seemed to apply to sales abroad. if you go into a shop to buy
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a book after you do with with that what you want but that statute is not the same from philadelphia to bangkok and we have to interpret that. so racier brief filed by lawyers written probably japan, read this group is doing business all across the world with dozens and dozens of libraries not just americans, why are they all filing briefs? it became clear the copyright today is not simply a matter of books were music for film but the automobile that has software of all kinds and that is often copyrighted and shouldn't make a difference if you buy a car from an automobile dealer who sells you a car made in detroit if
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you want to resell it doesn't make a difference? or go into any shot you want look at the tables often they are copyrighted the be the shape like coca-cola. the point is we are told in this case these few technical words of all $38 trillion worth of international commerce for girl that is a lot of money even today. my goodness that is why those lawyers are there. then to work that out with the majority that i wrote it the descent we thought we have to do something about the treaties, of the practices of copyright owners and buyers of foreign countries to know if the
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publishers are trying to devise markets in those lawyers are trying to inform us. that is a kind of problem when you have that type of case with the antitrust or securities and if i try to generalize i would say the general practice of the court now, unlike 20 years ago is to take a very technical legal term that is called comity to save the antitrust authorities in europe or in the united states, a security authorities in australia in the united states, looked at the statutes of both or more to see what those
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individuals do and try to interpret the american law so those laws of federal countries work out in harmony so the object of all of those could be better secured they will tell you there brief was filed in the european union as well as several other countries i'm sorry we have to but it is so complicated but we won't understand it unless they get busy to tell us how to understand it but that is the nature of a very large number of commercial cases. >> it is complicated. although this book is quite technical but you had some
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assistance with some of the research? >> his question is do you not have a day job? how did you do all this research? and the answer is a whole the 274 text book pages the rest is all footnotes but they have to be accurate even though you don't have to read them. some of it is from when i was still teaching some is responding to cases that we wrote but yale university paid for one of my former former, from philadelphia and she went there as a
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research associate fellow and they produced to lawsuits and she directed them. they did a lot of research and it was very, very good. so still i did something nonetheless. [laughter] i still appreciate what they did and what she did. >> the controversy involves not so much the case is that a talk about to reconcile but american constitutional decisions you have a chapter really respond resided those decisions in the important to send to the death penalty case last june. how you thought that was relevant and a response to a justice scalia who says you are crazy.
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>> there is a political controversy most of that goes out of to read three cases involving the death penalty and gay-rights where the court did refer to foreign practices with the death penalty and was careful to put the to read three pages referring to for practices to take this for what it is worth i didn't want to get into an argument about what it is worth or the statute of the constitution and the death penalty area about verbally of balls of were cruel and unusual punishment. if you want to see what the founders said in respect to the world or to the united states but so far nobody has found what they meant so there are arguments about that. so when i write other
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arguments about the death penalty but that is what people were thinking about those that were opposed. what are they worried about? actually i was on a panel that is wary about this in this and we won't talk about why and i said i guess that is a bad me but i will explain the reason why i will sometimes referred to those cases even though they don't bind us because more and more we're looking for similar objectives the judge has said job like mine and the problems are more similar if they're right in
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opinion leica question that i have why don't i read it? semite to learn something and don't have to follow it. he said read it. just don't cite it in your opinion. these table are highly intelligent and i said there is another reason. more and more countries are just starting like eastern europe trying to establish independence with the mission of interpreting the constitution in a protective way that is sometimes unpopular. their legislators don't like it. if we refer to them that may help them in little bit the united states as the well-established court we're doing something important to recognize it and that will
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help them and he said fine. write the letter. i am getting nowhere. so what i am doing here with respect to that argument is recognizing what it is and my opinion that drives it is concerned that if we refer to often tell cases outside their own country we will except or water down our own american values. and in part i am talking about security problems problems, liberty problems balancing the ticket and civil liberties, a commerce and all those things that require us abroad. i want the message to come through.
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but at least in my opinion. the way to preserve the basic american values is to ring gauge with what is happening elsewhere. tueber understand what is going on outside our courts to learn from it and rejected you think it isn't relevant to not the right way but to participate above all. if we don't it isn't as if that will stop going on. it will continue then we will have problems that our international in scope commerce or dozens of things and we will have to live with the consequences. so of course, the better thing to do is participate
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and take into account and i hope after reading the 274 pages that they're convinced that is the better path the very thing from the critics. >> to parse the eight the moment i call that out there is a statement by two scholars in a separate statement from the federalist society guesses the case against international law that some judges argue it should change a society changes their values other swedish debut of the original meeting. so there is a debate on the right way to interpret what about the world changing standards rather then the
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united states? >> it is not as helpful was you might think just because they abolish it does suggest there is something unusual about us but others haven't invented fact if you look at the country's and there is just a handful left. more than half live in countries with the death penalty. idle think that will help my argument but looking at the united states you discover only a handful where the death penalty is carried out. so it is pretty unusual in the united states. but that is a highly
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specific detailed argument that is a tiny part of what i am talking about. >> the bigger claim as you read knowledge the theory of invoking lot to undermine the basic democratic values to insist on that necessity to defer to the democratic outcome so what is your response to impose that european conception of honor and dignity but the u.s. has a different tradition of free speech. >> no one, or very few say let's go see what they decided in the strasberg court that is not talent works.
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it is more likely a case will come up in the history of the constitutional decision making but it is important what happens in wartime when the government or abraham lincoln or fdr or the congress at that time say because of the security need to use do away with what would ordinarily be civil liberty. linkedin secretary of state the british ambassador said i can push it wants to have anyone arrested in new york that i want i push it twice with ohio. does the queen of england have such power?
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with world war ii with 70,000 citizens of japanese origin were put into camps camps, prison camps away from their homes of the west coast for no good reason at all. and by the time the case came to the supreme court's no one thought there was a security need but yet the court upheld that and who wrote those opinions? the people ever leader though liberals brown vs. board of education. why? because that case is pretty well an acknowledged but looking back whether they know it back -- know it or not is cicero. and pointed out action.
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[laughter] but you see the point. but with the korean war justice jackson looking at what happened in europe and elsewhere thinking he got too much power said no. he did not steal those steel mills even though he needs to do it to prevent the soldiers in korea from getting the munitions that they need. he says no. then you go to guantanamo cases there are four of them in our court and each the
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detainee and the chauffeur was not the most popular person in the united states the president of the secretary of defense and those trying to get into court saying they he won in the government lost and if i want to summarize the view of the court i will take what justice o'connor wrote which i join when she said the constitution does not write the a president a blank check to set aside civil liberties even for a national emergency it does give tremendous authority to the president and congress to act to preserve the country in times of a security threat but we also know not much about that.
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we have a special duty to protect basic human liberty. then what happens? how do we resolve that? said sandra o'connor no blank check that is a great statement than the thought that will occur three seconds after i make the statement then what kind of check? then they don't say. we will see what happens in the future cases. certainly not their moment you would say we are facing security threats or terrorist threats that don't seem to go way that are of a special nature that could go on for a long time and may
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require what? and how justified? lawyers will help why not? why not do it this way it is less restrictive then we are to evaluate. my only point here that if you want sound answers from the court, of course, we have to look abroad for the answer. but to understand the nature of a security threat that may help on several occasions to know what other countries are doing even if you reject it it may help us to lerner is real handles this or the brits or the germans that they are facing similar problems they've
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made change in their instruction but how'd we do that without knowing the nature to a large degree? you the key will read the book and find out the answer you will not. [laughter] but you will see the nature of the problem. that will face us and will continue to do so that is of foreign issue commerce. ortega, that kind of thing i just mentioned, the treaty's that now govern of very large number of marriages and divorces and abduction of children. we get a case on one side groups of people are trying to diminish spousal abuse
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and on either side that our concerned about abduction of children and wire read deciding that? because they know of all the federal judges that virtually any state court judge specializing in domestic is absolute the unbelievably difficult and they know more than we do but they give it to west because it is in a treaty. why? because the nature of marriage and family today is more and more international our children or grandchildren are more likely to marry someone from a different country.
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american wife for british has been living in chile. that is not uncommon. but we have to have ways to figure this out. of course, we look abroad because that is the nature of the problem. you can see the argument for gore and understand your motivation that is fine. it doesn't have much to do with the case and if it does the underlying motivation to maintain american values and a better way to do that is to ring gauge with the problems of how they're treated abroad. >> we have a mutual hero the 100th anniversary of the confirmation hearing in june and one question that i asked is what would brandeis' do? challenge - - site em on
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his international law. tell us about that. >> my attitude towards that was before he became the justice used to teach at harvard law school and would tell us in class but you want to know what the common man thinks that i asked myself what i think. [laughter] and that is how i feel about brandeis. [laughter] >> say a little more you gave a beautiful speech how he influenced you. >> in part because he did strongly believe to look into the circumstances of a particular case. what the values will grow
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out of and understand swiping it is important to look. he felt this about federal and state government we know the phrase of the laboratories of experiments in the same thing with the problems that are facing us. and with respect to the combat -- constitution there is a great deal of rewrite federal legislature should. but there comes a point now we can go through all kinds of reasoning to discuss that point.
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he explains it very eloquently. and in my own experience with the court that didn't sound very articulate but it does ring true and how do you know, ? i being brandeis had a way to approach that but i do require him. >> host: you also cite him as one of the judge's of personality analysis est. technique common in europe balancing the threat against risk you quote him in that beautiful but the case that free-speech was so stringent to be inappropriate so save
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more about that proportionality analysis with the european approach. >> that portion nullity analysis the europeans engaged in a lot. that is in the first amendment area they are protected by the statute doesn't warrant protection? yes. by the restrictions that would otherwise be absolutely free speech is the answer different if you talk about commercial drugs or a professor who wants to teach how to petition the united nations? that used to be called balance it is not a particular european notion but judges hate balancing. day hate it.
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and this is the answer and nobody believes the judge is giving away from the objective part although he tries. judges hate balancing but there are cases where it is pretty hard to see what else there is to do when in fact, if vermont passes a law which says that we don't want drug stores to get the drug companies the names and addresses of the doctors who were using a particular drug because we are afraid they get the information then send their salesmen and convicts -- convince the doctor to use a more expensive version to violate the first amendment.
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the majority thought it did. i didn't. yes there is a restriction but not that much the purpose seems justified to keep down drug prices and this is in an area where free-speech does run rampant it is called commercial and selling drugs. so to answer that case look into the details the horrible word of balancing. and europe does this a lot and they add mitt you can learn something from their cases. in the way they look at particular facts. so it makes me enforces me to write a justification has why i come out against it in
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the drug case and i can mount the other way in a case where congress had passed a statute that prevented the administrative law judge from teaching those held to petition the u.n.. first amendment interests is great justification? why can't he teach him about the u.n.? what is done harm? why not? i think the european approach is transparent to acquaint "the reader" and forces me and somebody doesn't like italy's they can understand it and then there is a communication between the our reader and the user.
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and the others of that concept to improve the way that you do it to. >> that concern a balancing is subjectivity. and how do deferred to do demographic outcomes? >> that is a good question. to say i understand exactly you don't like my approach in many cases with the nature of the judges and she
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will do whatever she likes or whenever she thinks is good. and you'll think they did think about most things. with the values of the first amendment. but when i think about the eight the amendment if they did or did not think at that time covered flogging that was common. so i use that example. to say i knew that. [laughter] with the commerce clause and
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say but taken as much as possible through those conditions at that time. i'd think that is a pretty good joke it is not being absolute. then where are you going? you can doubt run a bear but i cannot run you. [laughter] the you will get yourself into a lot of trouble and this takes precisely in the
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argument goes on. weld at least if i write down what i think. and balancing is involved. a good opinion is an opinion that reveals with the factor that is the ideal. to go back to the conditions that they were at the time.
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>> so we have a religious liberty downstairs and i want you to see. it with jefferson's metaphor. and what is that french ocean. >> is the al willis during a difficult to have more absolution separation of church and state and prayers and national assembly and
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then they subsidize that. and that some white you will say no more. [laughter] >> what did you learn most from foreigners? said 20 years ago you heard very little bit recently learned more. >> talking to judges. in with the e.u. day are very interested. how the commerce clause is
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to have an exchange where there is the need for suspected terrorists with the conditions and judges have to decide that may require confidential information and. were one lawyer knows all that confidential information and. asking him to ask questions. it is complicated with the hundred page report.
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the one thing that they're required me to do i had a law clerk working on this for a week just to find out the statutes. >> where do you find them? >>. >> but with the president and to figure out how and why do people in the united states?
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and i tell her it is a process taking 200 years and there was the time of the cherokee indians of northern georgia to drive those indians out. that is tough for eisenhower. and this was three years after brown vs. board of education. 1954. 1955 and what has changed?
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nothing. 8057 said judge tries to integrate central high-school and he says no. you have the court order but i have the state police. then there read a meeting with eisenhower and eisenhower got pretty a great. event during world war ii and to said to eisenhower if you send troops be prepared
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but they will close the schools. to say to rise another you have to send the troops then he decided to do that. and then the air board was called then purposely. with the 101st airborne. and then they were hung up and many were shot down then he rose from the battle of the bulge. so they put that into airplanes and day escorted those black children.
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>> but i want to say that within one year new case san new board all the schools closed for the second time tuesday integrate now read the story of what happened. not a happy story at all. and then the head to reopen at the time of martin luther king. the time of the freedom writers, people who were not lawyers or judges living in the south to do what they
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could the edits of message i want to get across. we don't just talk to judges and lawyers. they already agreed. contrary to popular belief 350 million americans who aren't judges and lawyers. those are the ones you have to convince. because they have to understand their virtues to living that they will make decisions of the importance and they may well be wrong. that is an important message i want to say if there was a
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the decision was in dissent with george bush versus al gore is of great importance half of the country thought it was wrong. i thought it was wrong. despite that there was no riots or stones and i say to the high school audience entered on the television set. and then they solve the major disputes that way. the point that she has to convince a are the ordinary people in her country that it is in their interest that
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our wrong and that day like it is in today's world i cannot convince people we talked through sky by can sit in the office or to the state department to law students and professors and those who are writing the constitution into the shop. after half an hour then what doo-doo do in the united states? and to make a constitution
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but i cannot stop them from doing that. and i can say to your point i hope you win because you and your generation certainly do believe that throughout the world and want their children educated and they want their own careers. . .
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that's why i say that's one part of this changing world. overall it's not just a -- it's the world to change that you are not there because there are some liberal judges who have a view of things for because comment has nothing to do with individuals. our docket, our opportunities, our judicial law and so forth are not a function of individuals and they are not a function of philosophy or another philosophy. they are a function of the world is changing and has changed and that's the point i want to get across is those are the challenges that i think at least in part we have to deal with. >> that's an inspiring note on
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which to and. what you have told us is that all citizens not only in america but around the world really have an obligation to educate themselves about the constitution by listening to each other and the divergent points of view and by bringing people together and respecting the arguments on both sides you are suggesting they can learn from each other and that's what you are trying to do in this book. that's what we are trying to do at the national constitution center. i think that if you're many great contributions to constitutional education. >> justice breyer in addition to your opinions and your books, the fact is that you are a teacher come you were teacher at harvard law school and you are still trying to inspire citizens in america and around the world to educate themselves about the constitution is the highest calling imaginable. i'm going to give you some final homework, read his decision. pick a decision with the court
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decided recently. you can read the majority of pain and reduce dissent that make up your mind about whether you find it persuasive or you are more persuaded by the majority. justice breyer for all you have done to educate americans about the constitution, thank you. [applause] [applause] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
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>> the biggest mistake we make, the one that is about the most believe it or not is the one that should be the easiest. they should get happy. >> martin understood that for not just christians but for any human beings who wan

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