Ladies and gentlemen welcome to the National Constitution center on Constitution Day the most exciting day of the year. The National Constitution center is the only institution in america chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis and this really is a remarkable day because we have first evolved a tremendous honor of a visit by Supreme Court Justice Stephen breyer. [applause] Justice Breyer among as many distinctions and many books that he has written including when we are going to talk about today is a member of the National Constitution center scholarly advisory board. He he stenciled the crease to this Beautiful National treasure which was founded during the bicentennial to bring together people of different perspectives to learn about the constitution and to celebrate it and thanks to his inspiration and the guidance of others today we are thrilled to announce the launch of a new interactive constitution that you see behind you if they believe will transform the constitutional education in america. With the help of the Federalist Society and American Constitutional Society we have commissioned the top scholars in america describing what they agree about and what they disagree about so citizens can make up their own minds. This morning to present the College Board david colvin and i announced the center of the new ap history and government exam and will help students across america learn about the founding documents and we want to give it to every student in america. But thats not all. In addition to this great tool the interactive constitution is an International Component and that is what i want to begin with to discuss with Justice Breyer because he has written a superb and important new book arguing that american courts should pay more attention to the decisions of their counterparts abroad. Its just a great way to begin our discussion by clicking on this part of the interactive constitution which allows you to click on the globe and anyone can do this free on line at constitution or and pick any and see how constitutions around the world protected. I showed Justice Breyer the american which protects the right of the people to be secure in their persons had a direct influence on japan when General Macarthur drafted the japanese constitution pity literally cut and pasted the american Fourth Amendment so you see the words are almost exactly the same. The right of all persons to be secure in their homes, 53 of the tax matches. By contrast you look at the russian constitution you see its a prohibition against spouses not having to testify against each other and the techs are only 3 similar so this is one of the many things the constitution does. I so hope it will inspire students and citizens across america to engage with foreign constitutions. Justice breyer how can citizens use this tool to learn about important developments of interNational Constitution . First i would like to thank you for inviting me here. I was at the inauguration. Part of the backstage fell over but none the help nonetheless its so fascinating and to see all the students out there Walking Around and looking at this stuff. The students seemed to enjoy it and its great. Really a fabulous job. C you did a wonderful job talking to them. I see my friends and its great. During the revolution. And for some reason or other , louis the 16th, this was brilliant politician is what he was told. Asking for advice. And i read i read the letter he wrote to louis the 16th, giving advice about what to do in the middle of that revolution. It starts out so i a starts out, i am going to advise you to do that which is the hardest thing for any human being to do. He said, do nothing. [laughter] he said, joint appoint someone from the radicals and the assembly and dont appoint your reactionaries friends to anything. Soon there will be terrible inflation. Everyone will be furious, look for someone to blame for some will blame one, some old when the other, other, if you have done nothing, no one we will think of you, and you will be the only one left to we will be king. If i had known about this instead of writing this book , i could have done nothing. Not true at all. But this is fabulous. Im really glad i see Kathleen Jamieson here. We will get her books circulated to the United States them and i think students will be interested and learn something, and that, of course, is the objective. All of these foundations want to pass on to the next generation the values that we have, in fact, inherited and try to maintain, democracy, human rights, commerce, and we understand that has to be passed on so therefore we have to have stability and improvements. Fabulous. Wonderful. Lets talk about this great book. You make a claim which you suggest is modest but you also suggest is contested in america at the moment. Alsoalso that american judges should Pay Attention to constitutional and legal developments. The art . That the court is already doing this. The domestic ones that deal with foreign law is at the core of the relevance of International Law and american life. Well, the decision, the focus itself as a kind of report from the front. In so far as it is dealing with the argument people make that we should not refer to what goes on abroad. This is what we do, and it is not that controversial. Look at the nature of our docket has changed. More and more cases come up that require us to no quite a lot about what happens beyond our shores. I have categorized them and explain so forth a woman was not in the Supreme Court. She was from paraguay. She came to new york sometime in the 1970s, and in new york she discovered the man from paraguay who and paraguay had worked for decatur and tortured her brother to death. She also found a statute that have been passed on most 200 years before the tour statute and probably in part to help victims of pirates she said i could bring a claim for damages in federal court. She went back to paraguay saying i went back to the United States just let that man in the eye come and came back with sosome much more. As a result of that, many cases were brought. All kinds of questions raised. Was not the only human rights abuser in the world. Cases in hawaii, many cases. And the false of the federal courts to interpret the statutes. Who are todays parents and south africa, has the dead, files a brief in brief in the federal court and says the problem of dealing with the victims of apartheid and the perpetrators we dont want american federal judges interfering . When do we interfere and when do we not neckwear of statute and in fact cause more trouble and we are helping. Hard questions. New line interpretation of allow belgium to begin to bring proceedings against to have everyone uses this as an example. Your salary. You can reinterpret without looking into the questions of where this fits with the international court, where it fits with the hosta host of other laws which is just a human rights area, one example. There are others, commerce, civil liberty, security countries. One that is interesting is copyrights had huge all these things are international. We have the word interdependence, globalization, shrinking world, and they range from the total cliche to the completely incomprehensible abstraction, and i would like to make these things very concrete. So people can see what it means not just for the court and not just the judges and lawyers but for the average american word means quite a lot, true, the court. I only look at it did new through the lens of the court because that is what i know. Commerce we have in front of us and one day, the privacy problem of the nsa. You and talking to the computer. All right. A student who is studying at cornell. The very same textbooks are half the price and thailand. In the race to his parents the subset the publisher who brought a lawsuit copyright act which seemed to comply with sales abroad. If you go into a shop and buy a book, after you buy that you can do what you want with it. The statute was not quite the same when suddenly we see in front of us in the court briefs filed by lawyers, britain, japan, the business groups and businesses all across the world, dozens and dozens. Not just american libraries, but why are they all filing briefs on this technical question . Well, it became pretty clear that copyright today is not simply a matter of books and music and film, but by an automobile, going to the shop, it has software of all kinds within it, and that is often copyrighted. Should it make a difference . If you buy the car from an automobile dealer who is selling your car made in detroit, would you want to resell it . Does it make a difference if it was made in tokyo . Overcome i go into, go into any shop you want and look at the labels, the labels are quite often copyrighted. And maybe the shape of the product in the bottle is copyrighted as well. But we are told that in this case these few technical words and statute involved 3 trillion worth of international commerce, that is trillion. Even today has a lot of money. That is one of the leaders of their intellect that out soundly i think we all have to no something about the trees we have to do something about the practices of copyright owners and buyers we have to know when the publishers are trying to divide markets. All kinds of things. They are in the trying to inform us that is the kind of problem when you have that kind of case i can show you securities cases. I we will say that the general practice of the court now on like maybe 20 years ago is to take a very technical legal term called comedy, something youre supposed to be good. Beyond that is complicated, but using that word to say the antitrust authorities in europe, securities authorities australia, securities and forces in the United States look at the statutes of both and many more and see what those individuals do when they are enforcing the law and try to interpret the american law so that those laws of several countries work out of harmony so that the object of all of those laws can be better secured. To do that, you have to understand now law. They will tell you. Briefs were filed by the European Union antitrust society as well as several other countries. We will be told that we have to understand it. We will notwe will not understand it unless the law professors and lawyers and others get busy and go about telling everyone how to understand it, but that is the nature of a large number of commercial cases. It is complicated. This book is quite technical but i think that you have some assistance in some research and wanted to give a shout out to one of the assistants. He is being played. Did i not have a day job . It is very impressive. The answer is only 274 textual pages. They have to be accurate, and there was quite a lot of resurgence research that i did years ago. Some of it is, a lot of you articles, but of want to thank you. Yale University Pay for some of my former look, sarasota from philadelphia, she went theyre is a research associate, fellow community produced to law students, and she directed them. My goodness, they did a lot of research. So still, i did something. Nonetheless, i do appreciate i do appreciate what yielded and the students and certainly appreciate what she did. The controversy about the use of foreign law involves not so much the cases we have talked about how much college clearly require the court to reconcile american and foreign law, but the end it occasions have decisions. You haveyou have a chapter were you acknowledged these criticisms and respond to them. You yourself cited foreign decisions in a Death Penalty case just last year. Tell ustell us about that dissent and how you thought foreign law was relevant and what your response to Justice Scalia who said you are crazy to make the citations is . Much of the political controversy goes out two or three cases involving the Death Penalty and gayrights where the courts did refer to foreign practices. In the defense that i wrote about the dissent that i wrote about the Death Penalty, i was careful to put the two or three pages that refer to foreign practices in this area headed by take this for what it is worth. I mean, the statute, statute,statute, constitution and the Death Penalty area normally involves the words cruel and unusual punishment. It prohibits cruel and unusual punishment. If you want to see what the founders said, does that mean than usual unusual respect to the world all with respect to the United States . There were arguments about that. I would have other arguments about the Death Penalty, suggested there were problems with. I said that this is they could help convince some people and not necessarily others. But that is what they were thinking about. What are they worried about . I was actually a panel a long talk let me explain the reason i sometimes want to refer to courts cases even though they dont find this is because more and more countries throughout the world have documents like our constitution, similar objectives, protecting human rights, democracy. A judge there has a job so if a person with a job like i am its an opinion i . Questionmark i have under document like someone like mine, why dont ii read it . I might learn something. I dont have to follow it. I thought that was great. These people are highly intelligent. I should have quit while i was ahead. There is another reason. More and more countries are just starting, eastern europe, for example, trying to establish independent judiciarys and productive way which will sometimes be very unpopular. Legislators, they will like it. We are recognized as doing it. We approve or not. I will help me. Fine, the letter. What i am doing here is recognizing what it is that actually guys. In my opinion, what drives it is a fear or concern that if we refer to much or too often the case is decided in courts outside our own country will begin to accept or water down our own basic American Values. Important talking about security problems, Civil Liberties problems, balancing security needs against basic Civil Liberties, commerce, all of these things. The problems that go out of them require us to look abroad. I want the message to come through. I would like to be absorbed. At least in my opinion the way to preserve our basically American Values is to engage with what is happening elsewhere learn from it and reject it where you think it is not relevant above all to participate. It is not as if it is not going to go on. Whether an environment telescope, commerce, dozens of things. And they will have to live with the consequences. Of course the better thing to do is participate. Take it into account. That, i hope after reading the 274 pages to my hope that they will then be convinced that indeed that is the better path to do the very thing the critics above all want done. I talked to the 8th amendment. A common statement about its meaning nominated by the Federalist Society gives the casing is the consideration of International Law. In recent years some judges argued that the meaning should change as societal values change, but it should be interpreted to its original public meaning. There is a big debate about this and why it is relevant. In this particular instance it is not as helpful as you might think. And in fact, instead of counting by counties more than half the people live in countries that have the best the Death Penalty. Particularly when they start looking at the United States and by people only a handful of people live in counties with Death Penalty is actually carried out the world might or might not have, but that is a highly specific details argument a tiny part of what im talking about here. So important to get your thoughts on it. Invoking law could undermine basic democratic values. 200 values. 200 your career as a scholar and just to defending democratic constitutionalism , what is the response of the critics to say to impose the european conception honor and dignity which they embraced in the new right to be forgotten. Very few would say lets go see what they decided in the Strasburg Court we will adopt. Its more likely one very interesting and important part of the constitutional decisionmaking in the court they times of security, the congress at the time, we thought because of the security need to do away with what would ordinarily be Civil Liberties. Lincolnslincolns secretary of state is called in the british ambassador. Tell me, he said. Does the queen of england have such power . Go up to world war ii. They were put into camps, prison camps away from their homes on the west coast for no good reason all, pretty well he knowledge by everybody and by the time to come by the time the case came to the Supreme Court no one thought that was a security need to keep them in the camps. The court upheld it. Who wrote those opinions . Douglas, frankfurter, the people who were later to look up to five liberals of brown versus board of education in many other cases. Why . They case is pretty well he knowledge is a mistake. When the guarantor the laws fall silent. Thats a bad location. Nonetheless you see the. And that prevailed for many years. After world war ii looking, what happened in europe and elsewhere when one person got too much power, he said no, the president cannot seize the steel mills during the korean war even though evidence that he needs to do it to stop the strike that will prevent the soldiers in korea from getting munitions they need. But the court said no. And then we get to the guantanamo case, and in the guantanamo case, four of them in our court, and each of them a detainee like a chauffeur. Not the most popular person in each ofeach of those are trying to get into court. The view of the court and forwards what Justice Oconnor wrote where she said the constitution does not write the president a blank check set aside Civil Liberties in time of war and National Emergency all of us would perceive the constitution gives tremendous authority to the pres. President and congress to act and preserve the country in terms of security we also think we know not much about that. They are there to protect basic human liberties. What happens when they conflict, how do we resolve them . Well, no blank check. Occurring three seconds after they make the statement. Ifstatement. If its no blank check what kind of check does the constitution right. The opinions dont quite say. Certainly at this moment we are seeming to face Security Threats and may go on for a very long time and may require what and how justified. The lawyers of san why not be at this very whichworld which is less restrictive and the government will have an answer. In order to evaluate. If you want sound answers would have to look abroad. But at least understand the nature of the Security Threat and may help on some occasions to know what other countries are doing, even have to reject it how the births are going to handle it. They may prove instructive in the way they have responded one way or the other. In any event how they do it without the nature of the security problem which in large degree is falling you will see the nature of the problem that in all likelihood faces and will face us and will continue to do so. The foreign issue is that kind of issue, the treaty, the very large number of marriages and abduction of children. We will get cases one side are groups of people trying to help diminish or eliminate the problem of spousal abuse. On the other side are groups that are particularly concerned section of children they know federal judges in a state court judge specializing in domestic, or the hardest areas in the law, absolutely unbelievably difficult. They know more than we do. Even if it does, the the underlying motivation is one of maintaining American Values of law and engage and find out about these problems and how they are treated abroad. Hundreds and the bursary of his confirmation hearing is in june. You have kindly read my manuscript. One question i have whenever i have a constitutional question is what would he do . I want do to channel him on his national law. He did say International Law and tell us about that and what he wouldve said about the relevance of international decisions. My attitude toward that is the judge who taught at the Harvard Law School before he became the justice of the Supreme Court, he used to tell us in class i want to know what the common man thinks, i asked my self what i think. Thats how i feel about him. He would agree. s a little more about him. You gave a beautiful speech about him. How has he influenced you . I think in part because he did strongly believe that he wanted to look into the fact and circumstances of a case. He thought the values would grow out of an understanding of what is actually at stake. I think he would think it is important to look into the details. Thats one of the things. Also, i think he felt this both about federal government and state government, of course state governments are important, we all know the phrase with laboratories and experiments are very important. He. He applied the same thing. The nation is trying to cooperate in dealing with problems that are now facing us. In respect to the constitution, congress has a great deal of the way. It should in a democracy. Legislature should, but, but, there comes a point and not further than that. Now we can go through all kinds of reasoning to discover what that point is, but no not that. He explains it very eloquently in terms of free speech and other important values. My own expense in the court, that didnt sound very articulate what i just said, but it does ring true. It does ring true. Not true. Not that. How do you know . I think he had a way of approaching it that i find absolutely admirable. I do admire him. You also state one of the judges who participated in a technique that analyzes the seriousness of the threat and the eminence of the act. Is there a measure so stringent that it would be inappropriate if it is bringing trivial harm to society. Do you think the year. Untran european approaches good . That analysis is something they engage in a lot in europe and many countries do. Does it warrant the protection does it in fact justify what would otherwise be absolutely free speech and does the answer of that differ depending on if youre talking about labels and commercial drugs or whether youre talking about a professor who wants to teach the kurds how to petition the United Nations that kind of thing used to be called balancing. Frankfurter said, and and i understand it, judges hate balancing. They hate it. All we have this over here and this over here and that over there and this is the answer. Nobody believes the judges getting away from the subjective part of his brain though he is trying to. He is trying. Frankfurter is trying. Frankfurter correctly said judges hate balancing. But there are cases where it is pretty hard to see what else there is to do when in fact, vermont passes a law which says that we dont want drugstores to give to drugc. F[f companies thes and addresses of the doctors who are using the particular drug because were afraid the Drug Companies get that information, send their super salesman in and then convince the doctors to use the different drug because that violates the First Amendment. Well, my colleagues and the majority thought it did, but i didnt. I have to admit there, there is a restriction on speech, but the the purpose seems justified. Keeping down drug prices and this is in an area where free speech doesnt run rampant. Its called commercial. Its its called selling drugs and so forth. I think in that kind of case you had a look into the details. You had to try to use the horrible word, balancing. Europe does this a lot. You can learn something from their cases. Not in terms of the result necessarily but in terms of the way you go about looking at certain facts. It makes me, it forces me to write a justification as to why i came out against the First Amendment sentence and i came out the other way in a case where in fact congress had passed a statute which prevented an Administrative Law judge to prevent the kurds how to petition the un. Lets balance that one. First amendment interest, great. Justification, why can he teach them about the un . Whats the harm . And et cetera. You see what im trying to do . Its a transparent approach. It tries to acquaint the reader and forces me to write what i really think in depth. If someone doesnt like it, at least they will understand it. Then they can write in the next brief how wrong i was and i can read it and get some communication between the reader and user of the opinion and the judge. That isnt exactly adopting a european notion. Its trying to improve the way you do it in light of what theyve learned through the way they do it. The concern about about balancing as youve just articulated, is the same concern of subjectivity. Lets let the judges make it all up. You you care a lot about democracy. How do you reconcile this tension between deferring to democratic outcomes and giving judges this discretion to balance things on their own . Thats a question good question. At the deep question. Its one we get into arguments about publicly. We say i understand, i understand exactly why you dont like my approach in many cases. You are afraid it unleashes the subjective nature of the judge. And he or she will do what ever she likes her whatever she thinks is good. Instead of what the law required but i dont like your approach because i feel its too rigid. If you look back, back, youll discover they didnt think about most things of course i will look back to see what values they are trying to protect the First Amendment. Logging was common then but we dont know if it covered flogging or if it didnt cover flogging. George washington did not know about the internet. He says, i knew that and the congress clauses going to pick up things that they never thought of like automobiles. He said thats right. What we should do is stick as much as possible to the conditions they were at that time. His statement, which is a pretty good one, he uses a joke which is pretty good. Ill tell you the joke. What he says is its not being absolute on sticking to what they did. Its like the first person camping sees a second person putting on some Running Shoes and he says where are you going . He says theres a bear chasing us. He said yeah but you cant out run a bear and he says yes but i can outrun you. So thats his position. I will say youre going to get yourself into a lot of trouble because its going to be too rigid. Who will want a constitution among other things that sticks precisely to whatever governor morris happens to think about louis xvi at that time. The argument the argument goes on. Ultimately, i think it is a trump in that argument to say, well at least, ill write down what i think. That is to say insofar as there are thoughts that are in fact complicating this matter and balancing is involved. Very transparent is what i say. A good opinion is what we all strive for. A a good opinion is an opinion that reveals the factors that actually move the judge. You dont always get there but that is the idea. That is what youre trying for. So i think that approach that doesnt just go back to the condition as they were at the time the framers were alive, i think its a better way to get there. But the argument continues. Another example, religious liberty. We have wonderful religious liberty exhibit downstairs that i want you all to see before you leave which has a copy of Thomas Jeffersons famous letter talking about the need for separation of church and state. You compared his metaphor earlier on. What can the french notion teach us in interpreting the American Free enterprise . That is an issue i did not deal with in this book. Its difficult and obscure and im not an expert on it. The french probably would want more absolute separation of church and state in terms of not having prayers to open the National Assembly and they probably would not think that was okay. On the other hand, they do subsidize religious education which we wouldnt do. There are differences and similarities. Ill save the rest of the answer to some point where i know more about it. [laughter] wise. What did you learn most from foreign judges . You talk about one instance 20 years ago where you learned very little and another instance where your learning more. We dont spend all of our times talking to foreign judges but we do spend some time. Theyll theyll come over and certain things stick in my mind and well go over there sometime. They are very interested in problems that are similar to our Commerce Clause problems. Theyre looking for ways of regulating commerce within the state like we have done. The english have developed some systems where there is a need. Israel has done the same. There are conditions where they cant use cell phones or their cell phones are controlled and computers are controlled and judges have to decide if thats worthwhile. It may require confidential information. You do want that individual to have a lawyer. Theyve worked out a complex system of lawyers. One lawyer knows all the confidential information and can say some things and the other lawyers can ask him to ask questions and its pretty complicated and theres an 800 page report but it was an interesting discussion. Im not advocating their system for us, but i felt the discussion on our side, one thing it required me to do was go look up the law. Try to look it up. It will take you a week. I had a law clerk working on this for a week for a week just to find out what the statutes are and it turns out there are only two or three but theyre pretty hard to find. I have them cited in the opinion i gave the english and its not classified. [laughter] its very interesting. There are certain things that mean something. I keep thinking of two conversations. When the president of the accord , the president of a ghana Supreme Court in my office trying to figure out how do we, in ghana, bring this about. She said why do people in the United States follow what you say . Good question. Good question. I tell her, its a a process. It has taken 200 years. There was a time with Andrew Jackson when the court said the cherokee indians in northern georgia and jackson sent troops that did not support the courts opinion. Rather than driving the indians out they went along the trail to oklahoma where the descendents live until this day. And i love the the story of little rock with eisenhower eisenhower. It was tough for him. Rrsu they were standing there in the face of an order. Remember this is three years after brown versus board of education. 1954 brown. No more segregation. 1955, whats changed . Nothing. 1956 whats changed . Double nothing. In 1956 a judge in arkansas says desegregate and they said no. Eisenhower had to make that decision. They went in and said to the president , ill integrate. He went out and told the press the opposite. Eisenhower got pretty angry. He had a figure out out what to do. He was told by jimmy burns, if you sent troops, you better be prepared for a second reconstruction. You you better be prepared to occupy the south. The best that will happen is that they will close the school and nobody will be educated. His wise counselor said youve got to send the troops and within two or three days he decided to do that. You know that story. He purposely called in the hundred and first. Airborne. 101st airborne. Many of them were the heroes of the battle of the bulge so he put those members of that division into airplanes and flew them into little rock and they escorted those black children into the white school. But, i want to tell her and i do, within a year, new case, new new board, all the schools closed. No more integration. It actually went up to the Supreme Court again. It was a great case. The Supreme Court for the second time said of course, integrate. And a day after, they closed all the school. Its not a happy story. But you see, by then in my opinion, it was too late. They couldnt keep those schools and they had to reopen them eventually. That was the time of Martin Luther king and the freedom riders and the time where lots of peoples who were not lawyers and judges went to the south to try to do what they could to see that that brown order was enforced. Thats thats the message i want to get across. You want a rule of law in your country, please dont just talk to judges and lawyers. They already agree with you. The people who are not judges and lawyers are the ones you need to convince. Judges are making decisions about the importance of peoples lives and they might be wrong. I want to say to them, when i tell you that harry reid made a decision and despite the fact of the great importance, certainly half the country thought it was wrong and maybe it was wrong. I thought it was wrong. Somebody is wrong. Despite that, there was no riot, there was no stonethrowing there were people shucked in the streets. I know i say to the high school audience or the college audience, some of you are thinking too bad there werent some riots. I say really . Turn on the television set. Just see what happens in countries that resolve major disputes that way. I want her to pick up from what i say. The point that the people she has to convince are in the villages. The people she has to convince are the ordinary people in her country who arent specialized and they have to be convinced that it is in their interest to follow, at least least some time, cases that are important, that are wrong and that they dont like. When theyre ready to do that which has only taken us a few hundred years of a lot of up and down, then they have the rule of law. In todays world, i cant convince people but i do my best i spoke not too long ago by skype. We have skype now. I can sit in my office or go down and talk to a class of law schools and professors and people who are writing the constitution in tunisia. After a halfhour or so you develop some rapport with the class. A woman comes up and says, what do you do in the United States about freedom of religion. I said youre worried theyre going to write a constitution that will prevent you from going to law school. She said, exactly. Several other women in the class come up and thats what theyre worried about. I cant stop them from doing that, you know. I can encourage it. I can say i see your point and i hope you win and i certainly believe that people like you and your generation and i certainly do believe it, educating the women all throughout the world and they want their children educated and they want a good life for their children and they want their own careers. Theres an organization trying to educate people in india. So there are conservative women, very conservative. They are really glad youre teaching our girls there that they can have the career we lack. You see the kind of thing . Im not saying we can change the world as judges but we can, in fact have conversations that just occasionally, we are in the same boat. We sometimes have a little entree there and were in the same boat. You have you have that moment and you feel like