I wrote a book once about regulation. It found its way into the hands of a los angeles sometime reviewer. Dont ask me how. He decides to write a review. He says, well, he says in the alice in wonderland the mouse emerges from the pool of tears theyve heard this story before. And the door mouse begins to read from the history of england. Why your reading that said alice . And this is the driest thing i know. That was before breyer wrote this book. This is not about regulations, this is about the court, and its terribly important that you support actually these kinds of things because its important that people know something of the history of the court and so im very glad to be here and im glad to be talking about this and im glad youre here listening. Very nice of you. What is this book about . So, i say that it is its the analogy its a kind of a report, a sort of a report from the front. About what . Well, if youve ever read the Charter House of palm which is a very good novel it opens with a hero is on the battlefield at waterloo. Bullets are flying, napoleon is charging this way and that way and the hero thinks to himself, you know, he says something really important is happening here. I wish i knew what it was. [ laughter ] and thats what this is about in respect to when i hear words like globalization, or interdependence, or shrinking world. Thats a good cliche. All true, of course. But what is about it . I cant tell you a big answer, but i can do this. I can draw on my own experience over the last 20 years or so and in terms of that experience, which is here in this court ive seen a change. And the change is just in the number of cases where you have to know something about whats going on abroad in order to decide the case correctly and intelligently. Ive seen that number grow. I mean i think they were pretty rare when i first came here. Now if you looked it up and said i think its 15 or 20 , i think you would be closer. You see its going like that. So what ive tried to do is say ill tell you what its like here for those of you interested. Ill tell you about these cases specifically. And i will group them. And i will show you different topics. And under each topic i will give you some examples, and then ill say what would you like me to do about it . How would you like me to decide the cases because they call on different skills and different kinds of knowledge. All im going to do in the next 20 minutes or so, maybe half an hour, well have questions after. Is just give you a few examples of some brilliant and some are medium interesting. In any case, lets go to a very hot topic which has a long wind up, short pitch, and that is wellknown topic, what do we do about Civil Liberties in time of National Security. Theres much less in the court u. S. Reports than you might think. Jackson said that once. Jackson said, you know, he said looking to see what the framers thought about this kind of problem, inherent powers of the president or inherent powers of congress or powers of Civil Liberties he said its like trying to its like joseph trying to interpret the dreams of pharaoh. You start looking it up and discover there isnt a lot written. Not in the u. S. Reports. Why not . Well, for many, many years i think the general view of judges here as well as judges abroad were when you have first you have security needs. Like a war. Or Real Security problem. And you look at the document, the document says this power is primarily the president s. Its congress. Not the court. What about the Civil Liberties. There the courts do have something to say and sometimes theres a clash. So why is there so little . I think the answer is cicero. He was not one of the founders. But they did, in fact, know about cicero and that attitude prevailed for many, many years. Cicero said Something Like, i used to translate like this way. When the canons roar the law falls silent. Someone pointed out the romans actually didnt have canons. That wrecks that. In time of war, when the arms are, et cetera. You see the point. Did the court live up to that . Yes. You wont find that many cases during 1812 or abraham lincoln. I mean he had a real problem, obviously. But very few cases, one maybe known in the civil war. Maybe lincoln didnt get involved in Civil Liberties. He didnt. I mean tens of thousands of people were arrested. Seward was secretary of state called in the British Ambassador and said you see this bell here . I can push this bell and i can have anybody i want in new york thrown into prison. He said i can push it twice, i can have anybody i want in indiana thrown into prison. Tell me he said does the queen of england have such power. There were a lot of civil liberty problems and the court got involved after the war was over. Thats different. Thats justice jackson, he thought it was a good idea. He wasnt there at the time. Let them do what they want and then well come in afterwards. Thats not a workable judicial philosophy. But nonetheless, look and see what happened to Civil Liberties in the civil war. We can understand it. But the court doesnt intervene at all. Well lets go to world war i and there are many books written on this about the masses, you know theres freedom of speech being interfered with here. And he was alone. Court stayed away from it until after the war. Or world war ii. We know that one. My mother used to take me down, i grew up in san francisco, drove me down to the peninsula. I was a small child. She said thats where they held the japanese in world war ii. And the note of approval was not in her voice. Japanese were ordered to report and 70,000 american citizens were just moved. Why . Because general dewitt 6th army head said we better get out of here, the japanese may invade and they may get involved. They were citizens. They were told to report. They moved them. Roosevelt signed that order. It isnt what happened to the germans and italians or germans and italians or japanese in england or other places which also had problems but it is what happened to the japanese here. Now they went to the camps against their will. Wellknown story. But there was one person, Fred Koramatsu who said this is ridiculous, im an american citizen and i dont think they should do this. If they want to look into my background, fine, but not send me to some camp and he found a lawyer. Now i met him once, actually. Very interesting. He was across the street where we live up in cambridge because he was 80 years old at that time. Very feisty guy. I liked him very much. He was having a drink with our neighbor and ann was the daughter of ernie bezick who played poker with my father and was the head of aclu. He represented this man in this famous case. Aclu wouldnt sign the brief. They got into it later. They got back into it. You see this was january of 1942. February, march, april, may, thats when the order was signed sending them back, that spring of 42 and that was just after pearl harbor. And who was supporting it . Earl warren. He later said it was one of the worst things he had ever done, but he was there supporting it. Who opposed it. J. Edgar hoover. We can take care of it. But off they went to the camps. Now koramatsu said well win this and his lawyer thought so too. The case got to the court in 1944. In 1944 there was no risk of invasion. There was not a problem with submarines off the shores of california. They were pretty certain they were going to win and before the case went to the court, when the brief was in the Justice Department two lawyers got a hold of this and they read an article somewhere written by a commander in the navy who had been involved in intelligence and they got suspicious of this whole story. See because the government was saying, the Defense Department was saying or Army Department they were saying, in fact, there had been 763 instances of intercepted communications, messages sent to submarines off shore. There were several instances of sabotage. We should look into this. He called in the fbi. No there was no sabotage, the sabotage took place after they were moved. The fcc came back and said there was not one instance of messages being sent out to submarines. What did the 763, whatever it was messages. Those were all buck privates who didnt know how to work the machines. So they said thats pretty interesting, thats amazing. How did you do this so quickly, this big pile. We didnt do it now. We did it in 1942. And we showed to it the general. He knew it at the time. So they wouldnt sign the brief. They said were not signing it, were not going to defend this. Then they had a big fight between departments and who was brought in to mediate, herbert j. Wexler. He was running the war part of the Justice Department was a Master Genius and he wrote a footnote, disowning the army on this issue and he wrote it in words that no one could understand. So he convinced burly to sign the brief and the Justice Departments position, i dont know, you read it and see if you can figure out exactly what it was. In fact, who won the case . The government. 63. Famous case. And who is it who upheld . The government. Black, douglas, frankfurter, the liberals who had, in fact, later would sign brown versus board. And they were all on the government side. It was the three dissenters were roberts, murphy and jackson. And there was 63. I thought for a long time maybe they didnt understand there was so little evidence. Footnote, who reads footnotes. [ laughter ] Arthur Goldberg told me that years ago. He said dont write anything in the footnote if you want anybody to read it. In any case i thought maybe then i got the transcript of the oral argument and charlie worski was representing the japaneseamerican defense league. He said to the judges, go read the footnote. That footnote denies that theres any basis to this whatsoever and it did. And it did. So they had read it. What were they thinking . My guess, my guess is they were thinking cicero. And while it was a guess, i later met someone i hadnt gotten this source, he got the source of the conference and he said black walked into this conference and he said, well, somebody has to run this war. Its either us or its roosevelt and we cant and so we better let roosevelt do it. And that was the argument. You read the opinions and you see if you dont think i think it was the argument. I think thats what did it. By the way, the only one that has 100 right was murphy. Hes got every fact right. This is the problem of a historian. I figure ill find out and somebody must have told him. He couldnt have known all this stuff. Burly must have gotten to him. I phoned his law clerk. Gene is 90 years old, hes alive. I hope he still is. I called him. I said, now tell me, tell me. Somebody must have gotten to murphy. How did murphy get all those facts right . You know what he said . I dont remember. [ laughter ] so there we are. Now, thats koramatsu, there we are cicero. Now march on to the korean war and you have the steel seizure case. Very interesting. Because the court there during the midst of the korean war, jackson and the others say to president truman, no, you cannot seize the steel mills even though they were told and truman was told by cabinet officer after cabinet officer if you do not seize the mills there will be a strike, no production and people will be killed in korea, a lot of them as a result. But the court went the other way. So what i do think, my own view after reading this and going through the history of it . They told roosevelt he couldnt do it. Roosevelt had gone too far. Of course, he was dead. So it was easier to tell him. Moreover truman wasnt nearly as popular as roosevelt had been. But there you have it. Whatever the reasons, i mean they had gone too far and i think people on that court thought koramatsu was going too far. They thought there had to be a stopping place. But there isnt much in the u. S. Reports. Theres some but not much. Shows a stopping place until you get to steel seizure and read jacksons opinion. Its absolutely fascinating. Its become wellknown because he categorize the different source of Congress Agrees with the president he can do a lot of things, doesnt agree. Can do hardly anything. But the real interest to me at this time is his view about president ial power being exercised and hes very cautious and hes saying, he says look what happened in europe when the president starts, when a president. Im not saying what happened here but he says but, but, but. Stop. Now you come up to more recent cases, four cases out of guantanamo. Four. All brought by the detainees. Every one of them. The detainee, not necessarily the most popular person in the United States, bin ladens chauffeur was not and is not the most popular person in the United States. Brought against the president or secretary of defense, all four, the detainee wins. Congress has passed a statute first we had to interpret the statute then Congress Passed a statute specifically saying they cant get into court. They said it was unconstitutional. One of the cases says but im not an enemy combatant. You cant hold an enemy combatant if youre in an active war. But if theyre not enemy combatants. Some said were not. I was a peaceful farmer. The government said why did you have a bazooka. He said every peaceful farmer in afghanistan has see theres an argument there. So were asked to say what do they have to do . They have to go through due process. Have an opportunity to present proofs and arguments. So in essence we have four detainees who won. But what is the case about . What was cicero replaced by . If i had to choose four or five words it would be Sandra Oconnor who wrote in one of the cases and i joined her opinion on this and it was the courts attitude in those cases, it says, she says the constitution does not write a blank check to the president. Not even in time of war. Great. Fine. The only unfortunate thing about that is well what kind of a check does it write . Now youre beginning to see the problem. From our point of view, from the point of the view of judges and lawyers and others. What kind of check does it write . Its not too hard when youre not in the business. But now were in the business. So if we are in the business of answering that kind of question there has to be answers and now maybe youll see as well why our opinions are not particularly popular. I mean there are some groups who say you never should have gotten into this. You shouldnt have gotten back into this. You should go back to cicero. You want japanese, 70,000 citizens. The other side said you should have been more thorough, not thorough but more definite. You should have had a few rules here. You should have said if they could use hearsay or not hearsay in these cases. Why was it so vague . Why is it so narrow . I said the reason, the true reason so narrow, because we dont know the answer. Thats the truth of it. We dont know. Lots of situations can erupt. Now thats the long wind up. How are we going to find out . Thats not something we alone have to think about. If were in the business of saying when it goes too far these efforts by congress and the president , too narrow Civil Liberties in the name of security, if were in the business, we better know something about what were talking about. And that, i think, requires in part knowing what other countries do and thats why we had an exchange with the brits we spent two days trying to figure out what they were doing. We discussed all this. What does france do . What does israel do . Why . What works . What doesnt work . The lawyers are going to have to find out because the lawyers will have to tell us. And that requires sources of information, they will come in and say to the judge theres no good reason for this. Theres no reason. Why are they doing it . Well they have an answer. And somebody has to figure out under what circumstances did the judge look at the answer and when do you do it in camera and when dont you do it in camera. Then they say, why not do it this way . Its called less restrictive means and thats up there as a question too. So it will be the lawyers and probably some professors and the judges doing what they usually do trying to go into the subject which they dont know that much about. Learning about it and trying to come out with sensible answers, and that will involve knowing what happens abroad as long as terrorism is just not a National Problem and no one just thinks its a National Problem. So thats what i say. A long windup and a short pitch. But some of it is not such a short pitch. I mean try cases involving international commerce. A case i really liked i thought it was so interesting, explained quite a lot to me, was student from thailand, cornell. He discovers that books, same books, text books, same textbook, same language is on sale in bangkok for a lot less money. So he writes to his parents and says send me a few. They send a lot more than a few. He sold them. The publisher got annoyed. So the publisher brings a case against him. Now whether he can or cannot buy and resell from thailand, theres an answer and its in a statute and the statute, that footnote was nothing compared to this statute. Its really hard to understand. Thats not my point. My point is i go into my office and theres a stack of briefs like this. And they are from every place in the world. I mean they are from asia. They are from europe. And they are not all about books and i said why are all these lawyers and countries too filing briefs in this case. I mean its sort of an interesting case, but i mean this many briefs and i find the answer down about here. Where one of the briefs says you know copyright today is not just a matter of books or books, films and music. I mean buy an automobile, its filled with software. And a lot of the software in some places is copyrighted. Or go into a shop, any shop you want. And youll see goods and the goods will have labels and the labels will be copyrighted. And it will tell you something, your answer to this case, this student from cornell, we think will affect 2. 3 trillion worth of commerce. Even today thats a lot of money. Thats why they are there. Eventually the student won but that isnt my point. My point is this is all over the place. Can someone in australia, can someone in australia who bought some shares in an Australian Company over an australian exchange, you see, sue under 10b5, securities act for a claim that the Australian Company lied about a purchase it made in florida . Of a company . Can they or cant they . I mean we have to decide and we have briefs from the European Union, from britain from the netherlands, not only from the governments, we have briefs from lawyers that say the government is wrong, completely opposite. They are from all over the place. And we came to a conclusion that they couldnt sue primarily because it was Justice Scalia who wrote the opinion, i joined it. It interfered with their own efforts to enforce their own antifraud law or antitrust. Thats an old question here but my goodness it comes up with a force. A vitamin distributor in ecuador sue as Company Maker of vitamins in holland and he sues them in new york. Why did he sue in new york . Lets think about that. Maybe the vitamins were so expensive because of the cartel, he was too weak to get to europe. Thats a possibility. Theres another possibility called trouble damages. Hes in new york. Can he sue or cant he . Again we have briefs from eu explaining to us if we allow this lawsuit they will have real problems with their own antitrust. That comes up in security, antitrust, intellectual property where the only way youll get a sensible answer interpreting a statute of ours which clearly doesnt have the answer is to know how to interpret so that these laws begin to Work Together in harmony to achieve an objective and the word that will be used is the word comedy which is a perfect word which nobody ever knows what it means. You can find case after case where were trying to get laws of Different Countries to work harmoniously together and that doesnt divide the court. Or treaties. Were interpreting treaties all the time. Lets go back for a second because i want to save the treaty one for a second. Lets think of another good example. Dolly fil artiga. She came to new york from paraguay. She found another man from paraguay who had tortured her brother to death and also found a statute. She also found a statute passed in the 1790s. The alien tort statute. It says that a person, an alien can bring a suit in a court for harm caused by a violation of the law of nations. What was it about . Pirates probably, at least in part. Because the rule used to be in the 1790s you find a pirate and you hang it. By the way, first you hang him upside down and give it to the victims. Who are todays pirates . Torturers . Maybe. Thats what they said in the second circuit. And she won. She went back to paraguay and said i came to the United States wanting to look that torturer in the eye and i came back with so much more. And that produced a whole industry. And then the question was what are the limits. Those are harder than you think to figure out. Its not just who are todays pirates. All complicated statutes are complicated. There are some special things about this. And one of the special things, the law of nations, where do we look . Why is that a problem . Its important to understand one reason why its a problem. Or difficult. Not overcomable, but still raises a special difficulty. And thats what madison said. I like to keep these words in mind when im dealing with something that stems from abroad. I think it helps explain some of the opposition to the attitude im taking. He said that this constitution unlike europe is a document. It is not a document given by power to liberty. Its a document given by liberty a charter of power. I havent got that quite right. The idea is the following. In europe, the power is at the center. And its still at the center. That power may produce a charter of liberty. They may add up to the same place we do but its not the same theory. What this says is residue of power where the power comes from is the people. And this is a document that if they dont give you the power, you dont have it. You see . A difference. Now think of people being taught that for 200 years in this country not always practicing it, but nonetheless. And suddenly it becomes clearer why theres an emotional reaction. We elect the president. We elect the congress. The judges we dont elect them but at least they are appointed by people we did elect. At least theyre american judges. But who appointed those people . You see the attitude . How do we trace that back to us . Now that is a special problem that we have. Doesnt mean they dont have the power. But it does mean that you have to explain it pretty clearly. Why and how they got it. Or start thinking about what are we going to do . What about apartheid . Is it equivalent of a pirate . Maybe so, and people brought cases against Companies Based on that theory and the south african government filed briefs saying we dont want judges in the United States getting involved in this. We have our own system. Its called the truth in reconciliation commission. All that american judges are going to do is start getting everything mixed up. Let us deal with our own problem. So how is it the american courts will treat that . Do whatever the state Department Says . Do we work out a system . Now were beginning to see special problems and if its areas like this, remember, theres no Supreme Court of the world. Other countries may have similar statutes. We better be able to have a system however we interpret similar words here that will work out overall. I mean the example to use is we always read in the paper whether its true or not wants to sue henry kissinger. I dont know why, but we cant have a system where they are going to be sued. But the problem is this. If other countries do the same thing, you wont have chaos. There is no Supreme Court of the world to have a final rule on such matters. And all those kinds of difficulties and more are involved in those 10 or 15 or 20 words in that alien tort statute and its difficult. Its been to this court at least twice. We tried to figure out answers. Sometimes we agree. Sometimes we dont. But thats human rights, a little example of it. Its right there. Why did i say treaties . I started out with treaties because i began to think of treaties as always being subject matter for a court. Of course, but suddenly we have three cases over two years that involve a single treaty but you know its the subject of abduction of children. You know who knows something about abducting children in the law . They are called domestic relations judges in the states. I know some of them. Its a really hard job. A very difficult job. And one of them up in cambridge told me he always starts when he has a fighting couple before him he says, i hope you can work it out. If you cant, i will decide it. Whatever i decide will be worse than what you would work out. Its very hard. And who knows even less about it . Federal judges know nothing about this subject. We stay far away from domestic relations. State matters, so why in heavens name are we starting to interpret a treaty on child abduction . Because its a treaty. And well get into that. My goodness there are groups. One group is very much against child abduction. Nobody is for it, but before just wait. It has to be interpreted a certain way or too much child abduction. Who is on the other side . People who feel just as strongly about abuse of women. Because very often its motivated by abuse. So they have to go to different courts and different parts of the world making somewhat similar arguments to a lot of different courts and asking us, we have two cases like that. Why are we into this business. Why is it in the treaty . Because marriage is more and more a question that crosses national boundaries. Nobody is going to change that. Its just going to get more. There are treaties. Nobody disagrees with the proposition you have to look to foreign law. You should look to foreign law. You must look to what foreign courts say. When you are interpreting a treaty. Everyone agrees with that. All nine of us. We said that. And well, okay. Is that something that comes up often . The professor had his students look to see if he had an answer to this question. How Many Organizations are there in the world . Lets do that loosely. Lets say created by treaty or by executive order or created by something. Which have the power to have a bureaucracy and that makes rules. Those rules have this characteristic. They bind individuals or companies for more than one nation. So you can think of the World Trade Organization or parts of the united nations. But now you want it to count up how Many Organizations are how many do you think there are . How many think theres more than 100 . Nobody thinks they are more than 100. More than 1,000 . There are more than 2,000. There are more than 2,000. We belong to 800 or 900 of them. Theres an international bluefin whale commission. One of them you wont think of i say this on campuses if im talking about this subject, because the students will know in two seconds. Whats the organization that affects you every single day. More than any other. The answer to that question, you know what it is . Icon. I have a puzzled look because im the same age. Puzzled looks. But they know. Icon is the organization that deals are domain names. It regulates the internet. What is icon . Its a company in los angeles or sort of a company. It has some kind of status there. They are making rules that affect everybody. Who meets in bali . The banks meet in bali. So do our regulators. And they go to ball and they make they sit discuss and agree what to do. Then the regulators come back to their countries and promulgate the rules giving everybody a chance to comment on what they already decided. That is an overstatement possibly. Im going to get myself into trouble here. But nonetheless, thats going on in a lot of places. And gradually these questions are coming up to the court. Gradually. Ill give you an example of a big question thats decided all over europe and we havent had it yet, but we have nibbled around the edges of it. I mean can congress delegate the authority . To do what . I mean, if we say they cant delegate any authority, how are we going to solve the worlds problems. Not that we will solve them, but we do make a dent. But if you say they can delegate to the international bluefin whale commission, the olive oil counsel, whatever it is they want to delegate, what happened to article i which said the legislative power is in the president. No, sorry, hes in the congress. Its just a small point. Does that sound like a familiar question . Of course, it does. Its the question that the new deal court faced. What are these agencies . Where does it say anything about the international where does it say about an agency in the constitution . Then in famous cases they gradually solve the problem. Are we going to be in a similar kind of situation but not visavis local, but rather all kinds of organizations that make up that 700 or 800 or 900 or 1,000 different institutions that we now belong to that make rules that in practice does. Maybe. I mean, they certainly have the problem in europe. They have had the problem in europe in three courts. Supreme court of germany, of austria, of italy. At least has had to look through the eu treaties and say does our constitution, in fact, delegate. To that eu, does it give them the government, our government, the power to make a treaty that gives all this power to the European Union . All three have said no. They said there are certain things that are reserved. They never actually found one. But they just say in principle there are certain things reserved. We havent had that kind of question yet. I dont think. Unless you go back to the agencies or Something Like that. Do i think it will come up . I cant predict the future says yogi bera. But nonetheless, maybe, good chance. As i say, we have nibbled around the edges. There have been cases that brought up something somewhat similar. All i am trying to do is to give you a taste, a report, a report of whether youre talking about treaties or youre talking about human rights or whether youre talking about commerce, or whether youre talking even about things where there are few cases but very important ones. Security versus Civil Liberties. The world that were in is a world where you must look beyond your own shores. And how and when and under what circumstances is going to be what the lawyers and the law professors and the judges are busy doing. More and more and more and more. Thats all this book is about. But it does have some reasons as to why. I think thats fairly important. The least important reason, perhaps, is there are a lot of people that think you should never cite foreign cases. I mean, thats a reason. I dont agree with that, but there are a few. I want to say to those people, look, if youre not looking at what goes on elsewhere are you serious . I have tried different kinds of arguments and different kinds of forums and somebody will feel that strongly and i will think i make a great argument. I sent him a copy of the book. But he said, well, he had a he was very much against referring to foreign cases so i said probably thats aimed at me. He said, yes, it is aimed at you. So i said let me tell you why we do that. More and more countries have constitutions like ours. They have judges who are enforcing the documents. They have problems like ours. So if i see a person who has a problem like mine and he has a job like mine and has a document like mine, why dont i read what he says . It doesnt bind me. Maybe ill learn something. I thought that was a great argument. He said, fine, read it. Just dont refer to it in your opinion. Not knowing when to quit, i said, well, there are a lot of countries where this is a new thing. This new thing is their courts want to go to their legislatures and say its important to Pay Attention to judges. Youre the Supreme Court of the United States. We cite them all the time. They refer to us. That gives them a little added prestige. Whats wrong with that. Thats a defense of trying to get them in a position where they find it easier to defend Civil Liberties or defend personal rights of some kind. He said send them a letter. So i want to say, just read this. Read it and now you tell me how were going to solve these problems. Unless, in fact, we can know what is happening in other countries. Sometimes we have to follow it, sometimes we dont. But knowing about it is in more and more and more cases. What youre really concerned about is preserving basic american values. I agree with you. That is important. But when you read this youll think the best way to do that given the nature of the problems that are in front of us the best way to do that is to know whats going on elsewhere and to help because after all, if we dont help, if we dont help, the world will go on without us. I mean, well be affected by what people do anyway. So whether its the whale commission or some other thing, maybe we ought to find out so that it wont go on without us. And we will make contributions to problems like the environment or security or health or commerce, which are all around us, as you just read in 200 well chosen pages. Did you see the point im trying to make there . If you go really deep, and i think this drives us, all of us to some degree. I mean, the thing that explains our predicament in a sense and when you Start Talking about american values, i think it was lincoln. Its corny, but true. He says there at gettysburg i had to memorize this, used to, but ive forgotten most of it. Four score and seven years ago, why four score and seven . That does not bring us back to the constitution. It brings us back to the declaration of independence. He doesnt want the constitution. He wants the declaration of independence because are create. So four score and seven years ago, our fathers came upon this continent to create a new country. We are now engaged in a great conflict. To see if this nation or any nation so conceived and so dedicated can long endure. And i said thats the point i want the School Children to memorize. Because when they created, and you dont think about that too often. It but when they wrote this document in the 1780s, 1790s, there was no other place like this, there were all kings. And it was an experiment and people were sitting around writing that it wont work. Maybe it wont, they dont know if it will work or not. They actually have a document here that protects basic liberties, and actually protects democracy, its only good on paper, it wont work. They thought, well, that experiment might work. Why did lincoln say, i would fight this war, which he did say, i would fight this war even if no slave were freed. I always thought he didnt believe that. Maybe he did. I would fight to free half and not the other half, but i would fight to free all. But hes thinking why fight this war, because if this country is divided and it didnt work, it fell apart. Thats the part that i want to communicate, because were still in it. Its corny to say this, but my goodness, its true, were still in the experiment. Will the experiment work or will it not work . I think today that experiment means for all of us, who are lawyers or judges, it means that great problems, whether its environment, commerce, human liberty, treaties, whatever they are. Theyre global. In exactly the sense i have just described. And once you accept that, you say either we show that you can somewhat deal with these problems, at least help a little bit, through cooperative efforts, which means trying to have rules, which we call laws, or rules, or rules of law, you see . Thats one way to do it, and if we cant show people that you can do it that way, theyll choose other ways. And the other ways are pretty horrible when you turn on that Television Set and see what goes on in the world. So maybe its just a description of whats going on. But really, there is a program in my thinking, hard though that may be to see sometimes. But the program is simply to show people the tremendous importance of learning these details, of seeing whats going on, of trying to work out through a way, and there are many ways of trying to reach beyond our own shores, so that we can show that a rule of law, that is a rule of law, that does protect human rights, it does protect democracy, can contribute something to these world problems. And thats, quote, supporting the rule of law itself. So there you have it, you have where i started, what the book is about, and why i wrote it, thank you. [ applause ] when you signed up, everyone was given an opportunity to ask questions and we have a few questioning and we have time for a few for the justice. I will just read a couple, your honor, so that you can respond. This from the Alumni Institute for High School Teachers program. Here she writes, my Foreign Policy class is conducting a simulation of a National SecurityCouncil Debate over the use of enhanced interrogation techniques for suspected terrorists. How do you suggest we prepare for such a debate and what are the things that my students should understand in preparing for debating this issue. You need to read them, and see what the facts are. Thats a good point for a lawyer, isnt it . Start with the facts. And oddly enough, the facts arent what you think, sometimes theyre worse, sometimes theyre better. I would read jacksons opinion in steel seizure. I think thats a very interestiinterest interesting opinion. Because you get that and start asking questions about that opinion, youll say why is he hesitant . And there will be an answer. And why does he think that harry truman went too far, why wen all of these advisors told him, youve got to do this. Or it will be terrible. And what rule would you in fact have and what does europes experience in world war ii and just before tell us . And et cetera, et cetera. In other words, i think something she might not otherwise think of is that opinion and the steel seizure case. So i would look at that. I would look at that. You can look at guantanamo too, but it isnt going to give you an answer. It might start you in the direction of the answer. You could have a good debate in the class. What do these four cases, what do they tell us about the proper answer to this case. You see, it depends on how far she goes in the torture dr direction, because you can go short of that. Our own barack wrote a very good opinion about some form of torture in israel. And he writes in there, which was interesting to me. It wasnt terrible, it was not great, but it was a form of torture. He says, do you think i dont understand the fact that there can be somebody who knows where theyre going to blow up a cafe . And indeed what hes trying to do by saying go tell my mother im okay, hes saying go buy the bomb and put it under the chair and set it off. He says i understand it, i do understand it very well. And i understand why you think there is a need. But he says, but he says he are judges and you cannot ask a judge to approve torture. And thats the opinion. Read that. Read jackson. And then maybe, you know, have a few examples going the other way. Okay, thats my best. The second question is, in an increasingly globalized legal world, the Supreme Courts decisions serve as a guide, sometimes explicitly through foreign courts around the world and in what circumstance does the justice consider the courts global audience when crafting his or her decisions and what are the justice its thoughts on u. S. Circuit and state courts, is this trend concerning given conservatives increase focused in gaining seats in state judiciaries. Its not of a concern. People can vocite what they wan. An honest opinion is an opinion that tells the real reason why the judge is deciding this way. And we cite law review articles. We cite briefs, we cite all kinds of things. So i dont see anything wrong with citing whatever people want to cite. And as far as an audience can concerned, for our opinions, abroad, no, i mean thats their problem, thats not my problem. My problem is to get this thing done correctly. But in doing this things correctly, it may turn out such as the examples that i have given you where its very helpful to know what other people have done. And so if other people find what we get done is helpful to them, thats fine, but thats their problem, not our problem. My problem is to get this opinion written correctly. Thats hard enough before i take on a few others. One last question, if someone were going to make a summer study of important nonamerican legal texts to better understand the global judiciary, do you have any that you would recommend for their review . I would read baracks things, hes written on this, and i would try to read something about what the german constitutional courts done, its pretty interesting. They have had quite a few cases in this. Thats changing rapidly, i would look up what professor kaceci has written on this. Thank you very much. Cspan where history unfolds daily. In 1979, cspan was created as a Public Service by americas Cable Television companies. And is brought to you today by your cable or satellite provider. Every week in the Clinton White house, there was something gate, it was a very tense environment. A guy named ken starr, he was like the boogie man back then. Its like a fio request for this . I spent more time in that white house responding to foya requests, more than anything else. I remember those foyas, going through to find that thing that ken starr wanted that week. So coming in now, i actually get to do my job. Watch our interview with o r omarrosa manigault, this weekend on cspan, on cspan radio and cspan. Org. Next we continue our focus on the Supreme Court, with an emphasis on our landmark cases decisions on judicial powers. We start with v. Sawyer, the 1952 case limited the power of the president to seize property. All persons having business before the honorable, the Supreme Court of the united