can you describe the role of customary international law in regards to the provision you discussed regarding treaties and whether it can be customary international law if the united states does not accept it? perhaps the crystallization of the death penalty as part of customary international law. thank you very much. >> as to the death penalty, i can give you the answer. @@@@@@@ @ @ @ @ @ @ @ @ @ @ @ @ >> i am not very mechanical. i can say that i do not know. i can give that as a reason. there could be other reasons as well but the question means my first reaction is that it is not a treaty. whether not -- whether or not it is relevant, that is why i give some examples i wanted you to see that the relevance depends on the case you can have a tree the that has direct implications, -- you can have a treaty that has direct implications, and we are trying to figure it out and the interpretation of it turns on customary law. that can happen in the warsaw treaty. it governs airline liability. -- for example, in the warsaw treaty. it could be relevant. when it is, it is. when it is not, it is not. >> more questions? otherwise i will get goign on m -- get going on my own. >> thank you for coming. i am a student across the street. when judging the helpfulness of foreign law, do you take the nature of the legal issue into consideration? specifically, with regard to your first question, you brought up the duress effects. in that case, i would characterize it as a moral issue. if you take that and contrast it with a case where a mexican company can sue a dutch company in new york, something that is more technical and procedural, do you view the healthfulness differently under those two group situations? in many cases -- under those two situations, considering that u.s. morality is very different from foreign morality? . >> does a very controversial matters. i do not know whether the critics are more interested in international law or the results of another case. my wife, a psychologist, has taught me of the value of a concept called displacement. displacement is you are angry at a so you blame b. some of the people who are angry at the results of those cases blame international law. i will make an example where i have used it and have been criticized. we had a case -- i wanted to hear a case which raised the question of -- the constitution forbids cruel and unusual punishment. the word unusual does not say, nor is there much history to tell us, that it means unusual in the united states. it might mean unusual in the world. it might not. it might mean look at it a little or a lot. it does not tell you itself. the question was whether -- may person on death row for 20 years -- was that in and of itself cruel and unusual? it seemed to me it might be. to support this, when the court said no, i wrote a dissent. as we do sometimes. we write a dissent in order to convince the others to say yes. if the -- if the dissent is written, we might as will publish it to get people talking about the issues. you only see the failed dissents from refusals to hear a case. i said every country in the world has considered this in privy council -- india has listed a lot of cases. canada. there were some un committees. they have all come out saying that it is after five or six years a cruel and unusual punishment. i then listed zimbabwe. justice thomas filed an opinion saying i had to look to zimbabwe because i was getting so desperate. [laughter] i agree that zimbabwe is not the human rights capital of the world. [laughter] i knew the judge who had written that was a good judge. it was written quite a long time ago. i am trying to do a survey and use the fact that other countries think that this is cruel and unusual as a degree of support for the claim that maybe it is cruel and unusual under our laws. i am trying to get some argumentative mileage from it. those on the other side said no, you are not getting weight from that because this is america. try to think of that issue without in your own mind is getting involved with how you feel about the question of people staying on death row for 20 years. it is very hard. that will in fact come into the matter in anybody's thinking about it. i am simply underline what you said. it is likely to be more technical and not necessarily less important. they can be terribly important matters where the laws of other countries are an issue. but it does usually -- it is a somewhat less volatile or politically less controversial issue. >> i have one question on what you spoke about today. it is a question that maybe you would set aside and ask somebody else, but i am afraid i have a question about what you say. there is nobody else to go to for the answer. it is about whether a treaty would require legislation to become implemented will. the constitution, needless to say, having grown up in a treaty organization that was created by treaty that gave them more credibility at the table. the question is -- if the constitution says that a treaty requires the advice and consent of the senate with a two-thirds vote and if others then interpret that the treaty has no standing unless it also had legislation involving the house hasn't that implementing rule absolutely contravened the constitution? what is the meaning of a treaty that has the advice and consent of the senate if it no has -- if it has no standing as the law of the land? >> it defines the nation in the world. that is the answer. that is an answer. if you signed a treaty, it binds the nation in the world. >> but what is the argument that allows anyone to say it is not -- it does not execute itself in the country without the house. that does not negate the power of the senate? >> the senate puts, by ratification -- the treaty becomes a treaty, a law that binds the nation. the nation, if it does not follow it, is in violation of the treaty. sometimes there are remedies like the international court of justice or some of the courts. a nation like the eu can impose fines upon nations that do not follow it. it is a binding rule of law. that is not the same question as to whether win a case comes in front of a domestic court and you have a rule of law saying a statute or some other common law, whether in fact the rule of law is trumped by the provision of the treaty so that we, the domestic court, have to apply it. nobody thinks that the answer to that question is always, nor is it never. even those who came up the other way think that sometimes it would become self executing if, for example, it said in the treaty that it was self executed. my response is that we are not going to get things like that written into a multilateral treaty because what counts as self executing differs from one nation to another and it is going to be too complicated to put in. it is not that tough. they could say something that would make it clear that it is supposed to become self executed. if they agree that it is self executing the majority would say it becomes domestic law once the senate passes it. nobody thinks that if we enter into a treaty saying peace with britain that it is up to a court to enforce peace with britain. -- i.e. a domestic courts. >> justice breyer, thank you. i am curious. i covered the court a long time ago for about eight years, ending 25 years ago. in eight years, there was a wide range of views on the court and in the country. this issue came up not once. i am curious as to whether you are surprised at the strength and passion of this issue and its recent development. >> by that you mean the issue of referring to other constitutional precedents? i do not know. i am not an expert. i do not know. one thing i hope you got out of this is i am not an expert. i see the cases that come up before us and i see where it is useful sometimes to refer -- not always, and maybe only in a few. then i see cases where you have to refer to what is going on a broad. i want people to be aware of that because it is a change in circumstance. it seems to me the change in circumstances is simply reflective of what is happening in the world at the level that we work on as professionals. that is what is happening. it might be because of congress. it might be a lot of reasons. you can give causes. that is your job. i can simply report that it seems to me there is this considerable change even in the 15 years i have been on the court. >> go ahead. >> thank you very much for taking the opportunity to speak with us. i am a first-year student studying international law. my question about the relationship between the judicial and executive branch. historically, the supreme court has deferred to the president in the conduct of foreign policy. as you said, there are more and more cases with a component of foreign or international law. how do you see that relationship evolving as you face more of these issues? thank you. >> again, there are a lot of legal doctrines that do require a court to defer on foreign- policy matters. there are different ones. there are political questions, but aside from that you probably know of the famous case, sabatino, years ago. there are cases of whether you before and what we do not. i have no particular reason, because i have not studied it enough, to think there will be less or more deference. i do not have any view that could answer that question. >> we have one more student question and then justice breyer will have to make that his last. are there any on this side. -- annie on this side? one more student question. i think i see to microphones. then we will take our friend from germany to close. >> thanks very much for coming. you spoke about professionals and how wonderful professionals are. we see populism in the united states, europe, and latin america. andrew jackson makes the argument that it is the professionals that are really the problem, the ones getting in the way that people are angry about. do you see a danger there? do you think they are beating the pollen and stinging people now and then? that is not an international question. that is a very good question. i was not expressing a value judgment. i was simply saying that is what we are. people draw their own value judgments for that. we look at it, so naturally we think they are good because that is what we are. this is one of the difficult questions in administrative law. the world runs in the united states and elsewhere by delegating enormous power to administrators or bureaucrats. hear, there are two opposite and powerful forces. if, and everyone knows this because this is an andrew jackson point -- if you delegate too much power to a group of bureaucrats they will prevent you from making the decisions that democracies insist people make. it takes power from people and they get in the way, the bureaucrats. but people have to recognize the absolute converse and opposite argument. people in a modern democracy tend to want certain results and those results are stated at a fairly high level of generality. they want a cleaner environment. they want better this or better that -- highly general. if you tell congress that they cannot delegate the authority to implement that to administrators, because many of those require technical knowledge, you will discover that in a democracy people cannot get their way. if congress passes a law that says before a general can take the hill he has to consult with us about whether it is the right thing to do to take this hill rather than that, the result will be we will lose the war. if congress tells the epa that we think you should have level 4267bsox in the tail pipe up there, i would predict we would lose the war for the environment because to get the individual what he wants in a democracy you must have a degree of delegation to experts. that is the nature of modern society. so now we have two forces. which one prevails? as usual, since i am anarchistic, i think it all depends on what the situation is. but i am pretty sure that the people who inevitably will have to make the decision, area by area, of how you balance those things are our elected representatives, who will be responsible to the people. that is how see the answer to your question working out. >> one last question. >> thank you. i come from a country that has a constitutional court and many elements have been incorporated from the united states. dissenting opinion -- we did not have that before. we are very grateful. [laughter] on the basis of this fascinating lecture of yours, that is the reflection -- is the refreshened openness to other courts shared by the critical public in this country? is it shared? is the public equally open to what happens in other countries? if i may with your indulgence " the house majority leader in 2005, quoted in newsweek. >> we have just as kennedy writing decisions based on international law, not the constitution of the united states. that is outrageous. the same judge i think said recently that the punishments in this country are eight times harsher than in europe. my question is -- take health care reform. the health care reform. there have been so many critical arguments about socialism in europe that i am kind of you and treat that the united states is so convinced that what they are doing does not reflect any new openness to how countries do things. >> what you said is very interesting. i can tell you one thing which will not satisfy you. what you are discussing our political matters. it is how certain decisions made, including our court's, are translated through the press into the public mind and how they react. one of the reasons that hamilton writes federalist 70 whatever -- he writes to say "why should we give the supreme court the power to set aside a lot of congress as an unconstitutional? the reason is this. if we do not give someone this power, the limits we have written into the constitution will become meaningless. but if we give it to the president, the president will become a tyrant because he will have the power to rectify whatever he likes. if we give it to congress, what will happen? congress is a politically responsive branch. they will pass the law that the public wants, and they are very unlikely to say the law they just passed which the public wants is contrary to the constitution. we have no choice. we have to give it to these obscure technocrats. there is a risk in that but there is and advantage. the risk is that they will not do their job. the advantage is that they do not have much power. they do not have the power of the purse for the sword. they have to convince people of their reasons. they could make terrible mistakes. they certainly do not have special knowledge. they certainly do not have some kind of special magic. we're giving them a job. they, being judges and being somewhat independent, with a job for life and so forth -- maybe they will do it. what that means to me is i do not get into political questions. i am not really, in any case, concerned with whether it is popular or not popular. i try to do the job. the betting is if i do the job, the people who have the least public protection, the least popular people in the united states, who are entitled to a right under our constitution, will get it. now you have the answer as to why i cannot give you an answer. [laughter] [applause] >> if we could ask everybody to remain seated until justice breyer and the dean leave the auditorium -- please remain seated. thank you. h[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] coming up next, the annual radio and tv correspondents dinner. and then, the health care midcourt and then an iranian photojournalist. >> sunday, on "newsmakers," he talks about the economic impact of the health care bill on indiana and on other states. >> we are continuing to discover new costs. these are not just a cost that would be visited on a future governor for it this is -- a future governor. the federal government is going to confiscate pharmacy rebates. we had a very good deal out here with drug companies. we also see huge and administrative costs coming. we had to supervise a huge expansion of medicaid. as we understand it, we have to shoulder the costs of the new exchanges, and it will be a very expensive things for taxpayers here and in every other state. this bill will necessitate this and it is another example of what was sold. >> you can see the entire interview on and "newsmakers," a day at 10:00 a.m. and 6:00 p.m. eastern on >> all this month, see the winners of c-span's " 2010 studentcam." watch the top winning videos every morning on c-span at 6:50 a.m. eastern just before washington journal. at 830 yen, during the program, meet the students that made them to visit -- visit our web site. >> vice-president joe biden spoke at this dinner and comedian joe wong provided the entertainment. this lasts about one hour 10 minutes. ladies and gentlemen, please welcome the vice president of the united states, joe biden>> happy st. patrick's day to you all. please be seated. it is my pleasure to welcome all of you to the 66th annual radio and tv correspondents dinner, here tonight at the walter e. washington convention center. we are thrilled to be here for the second year, at a new venue that show casses -- showcases the dynamic growth of washington, d.c.. as a producer, i would like to pay tribute not to the people you see on the air every day but to those who make it possible for them to get on the air every day. [applause] the behind the scenes folks. please take a look. [tympany drums] [percussive music] >> no one works as hard as the crew. we make 100 decisions a minute. other people get a chance to look at the big picture. we are continually making quick decisions. >> i think the biggest misconception is that we do not care.