Good evening everybody. It is my pleasure to be the moderator tonight for professor Kermit Roosevelt. As you probably know, he is the greatgreatgrandson of Theodore Roosevelt. Roy we discussed beforehand whether there is a shorter word than greatgreatgrandson in english, but apparently there is not. So, that is so we are stuck with. The honor of having him here though, is much more founded in his skill in both his legal backgrounds and in his writing ability, he has produced several books on constitutional law, u. S. G served as a clerk to Supreme Court under Justice David souter. He has written both novels and books on law. Will be at least some discussion about his latest allegiance. It is about the incarceration of the japanese during the second world war. That is enough for me. Me introduce reverser investor Kermit Roosevelt to you. [applause] prof. Roosevelt iii thank you for that introduction. Thank you all for coming, it is a will pleasure to be here. Im going to talk about the significance of Theodore Roosevelts vision of the constitution and it will connect to some larger ideas about who we are, and we want to be. The constitution is our central organizing document. Had no official religion, the constitution, in fact, says that we cant. But we give the constitution the same kind of veneration that some societies get their sacred texts. It is our loyalty to the constitution, are legions, that makes us american. We are not a nation held together by race, or religion. We really are constituted as a people by those 4400 words. And so, when we talk about the constitution, we are really talking about america. And americans. And what those words mean. And that is what i want to do tonight. So, let me start with rita roosevelt. What was his vision of the constitution . To put in one word, it was democratic. And i dont mean that in the sense of the democratic party, of course, i mean in terms of the question, was supposed to the ultimate authority in our system of government . His answer was, the people. Now, and a sense, that is probably not controversial. You might think, of course, we the people should be in control. We the people, that is the first three words of the constitution. We the people, are the ones who ordain and establish the constitution. But, that you actually runs up against a couple of other features of our system of government. Basically, everyone agrees that people are the ultimate authority in some sense, but something that maybe they have delegated some of that authority. For instance, they have delegated the power to make laws , to legislatures. And they have delegated the power to interpret laws, and to interpret the constitution, to courts. Or have they . This is the area of dispute between theodore and the more traditional view of the constitution. He wants the people to be more directly in control. He believes in the right of the people to roll. That is the title of one is famous speeches. He believes that the people, themselves, must be the ultimate makers of their constitution. That is a line from his speech at the Chicago Convention of 1912. So, in his view, the American People are the good guys. They are the heroes of our american story. Who are the bad guys . In part, they are corrupt legislators. Who make laws that favor big business. Instead of the general public. But, perhaps, more important, they are judges. Judges who use their understanding of the constitution to strike down laws that the people support. The people want something. They want, perhaps, to make working conditions favor for the war. Or they want to set a minimum wage. Or a maximum number of hours per week. And they get the legislature the , the representatives to do this. The legislature and ask the law. In fact, as in your status and women, you are roosevelt did just as in his early career. Then, the judges say, that lies unconstitutional. They invalidated and this is actually exactly what happened. Roosevelt that sponsored. And that is perhaps why this issue is so dear to his heart. Legislator,ime as a extending through his presidency and even afterwards, courts were using the due process clause of the constitution to strike down these economic regulations. So, judges were the bad guys. They were the villains of the story. They were the bad guys because they were stopping democracy. They were preventing the people from exercising their right to roll. They were authority and the role of the majority. They were, instead, doing the role of what the Progressive Party calls the invisible government. A power that sits enthroned behind the extensible government. Holding no allegiance, technology no responsibility to the people. The progressive sacked. These judges, the progressive, were part of an unholy alliance between corrupt business and corrupt politics. What did the judges think they were doing . It is an important fact about the world that most people think that they are doing the right thing. Villains to embrace evil for its own sake, you really find them only and rather simplest of fiction. So, the judges thought that they were the good guys. And they thought this has any particular theory that im going to discuss and a little bit of detail as it is going to come back later. Their theory was, government has the wholews to make public better off. Thehey put it, to promote Public Interest, to make society, as a whole, better off. So, it would be unconstitutional to have a law that benefited one group at the expense of another. Or a law that is designed simply to oppress some group. Encouraged agreement. What was different about the judges at the turn of the 20th century was that they thought that things like maximum hour, or minimum wage laws do not promote the Public Interest. They thought those laws were what we would now call, special interest legislation. That is, they promoted the interest of one group, the workers, at the expense of another, the employers. So, these were laws, according to the courts, that unfairly discriminated against the employers. That oppressed them. So, in their own eyes, the courts of this era where the heroes. They were defending the constitution. They were preventing oppressive discrimination. In the eyes of Theodore Roosevelt and the progressives, they were the villains. They were preventing desirable reform. They were protecting the interests of the wealthy and powerful. So, how do you decide who is right . Well, Theodore Roosevelts view was that we should let the people decide what is reasonable and what is oppressive. When judges are called on to make that decision, he said, they should represent the people. And im going in the end, to say, that he was right about that. But, he was not right in quite the way that he thought. And before how is right, i want to tell you how he is wrong. How his vision of the constitution proved inadequate. Parts of Theodore Roosevelts vision of the constitution were actually adopted during his lifetime. The 16th, 17th, and 19th amendments are all actually parts of the Progressive Party platform. The platform on which Theodore Roosevelt campaigned in 1912. So, he lost that election, but its worth the constitution goes, he won in many ways. But, now with respect to the judges. He did not get the judges to back down, in terms of using their own views about what was reasonable and what was oppressive. They kept on striking down these laws. Under the due process clause. Through the teens, and the 1920s, and into the 1930s. And another president comes on the scene. Frequent eleanor roosevelt. Fdr, in many ways was carrying out Theodore Roosevelt policies. Fdrs new deal, i think, is in large part, a fulfillment of Theodore Roosevelt square deal. Fdr has the same problems that Theodore Roosevelt with judges. They are invalidating laws that people support and they are often doing it in the name of the due process clause. Fdr decides to do something about it. He has four justices who support him already. He is visiting these cases by a very narrow 54 vote. And he says that he is going to appoint more justices. This is the infamous Court Packing plan. He does not say that the reason he is doing this to is to give himself a majority supporters, but, that is obviously why. Court packing fails, of course. Fdr loses that battle. But, he wins the war. The Supreme Court backs down. In 1935, it gives up on the idea that it can define what the Public Interest is an strike down laws that depart from it. So, and other people to get to decide, what is reasonable and what is oppressive. How does that work out . Well, it works out ok in terms of the mastech economic regulations. And that is important. The Great Depression was a serious crisis. There should have been a National Response from the federal government, the Supreme Court was preventing that. Notthe Great Depression is the only crisis that fdr gets. Theres another one. A crisis that echoes down the years. It finds some parallels in our recent history. And that shapes our modern understanding of the constitution. And the role of judges. 7, 1941, the empire of japan attacked the United States fleet at pearl harbor. The destruction is enormous. All eight battleships are damaged, to totally lost. Over 300 aircraft are damaged or destroyed. And 2400 servicemembers are killed. More than the material devastation though, the attack in flex a psychological injury. Americans are not used to being attacked at home. Wars are things that are fought across the sea. Not on american soil. So, the Immediate Reaction is panic. Our more attacks coming . Is this part of a coordinated series of strikes . In fact, it was, but only went to place in america. And people wonder, what is next . D. C. , troops are called out to protect government buildings. People into supermarkets and horde food. And government lawyers write memos about what can be done to make the country safe. Come up with they relatively quickly is removing the japanese and japanese americans from the west coast. And this is in large part the brainchild of one man, a lawyer named carl the nexen. At this point, there is a japanese and japaneseamerican population of about 127,000 in the United States. A live mostly on the west coast. The first generation of immigrants are not u. S. Citizens, they are not allowed to be, that is what they say. But their children and their grandchildren, are u. S. Citizens. By virtue of the 14th amendment grant of birthright citizenship to anybody born in this country. This population has had some difficulty assimilating because of racism and suspicion. And, in fact, before pearl harbor, u. S. Intelligence agencies investigated the japaneseamerican community because they were concerned about possible disloyalty. The conclusion by the office of Naval Intelligence was that there was no general problem with disloyalty. There might be some disloyal individuals, but on the whole, the japaneseamerican community was actually hyper patriotic. And eager to assimilate. Suspicious individuals were concerned, the fbi had been keeping tabs on Certain Community leaders. And figures of prominence. And immediately after the pearl harbor attacks, they went in and arrested over 5000 japanese and japaneseamerican. That is most of the men who had any kind of leadership position in the community. And this and this people to Justice Department camps. For some weeks afterward, there was really no talk of mass detention. But, Public Opinion turned against the japaneseamericans. Outside the government, the push was coming from groups like the salinas Fruit Growers association. Which wanted to a limited economic competition of the japanese farms. And the native sons of the golden west, which simple he wanted to make california whites. Inside the government, is coming from the War Department. And the Justice Department resisted. This is one of the lesserknown elements of the story. The War Department keeps coming to the Justice Department asking for the authority to do certain things. We want to do warrantless searches on japaneseamerican houses. We want to arrest all of the Bainbridge Island residents. And the Justice Department keeps saying no. Francis biddle, fdrs attorney general keep saying, this is unconstitutional, we will not do it. But, he is not in the end, willing to take a Strong Enough stand against these measures and ultimately, against the Detention Program. Indians, work prevails over justice. 9066ssues executive order and 1942, authorizing general john delaney, head of the western defense command, to exclude anyone he deems necessary from the militaries on the west coast. Soon after that, general dewitt starts issuing his own orders and impose a curfew, tells residents that is military excursions zones that they should prepare to leave. Some of them do. Seeing the likelihood that they will end up being sent to camps, they decide to leave early. But this turns out to be possible for only a very small number of people. Because the interior states are not welcoming. Some families are turned back when they try to cross the state line. Wyoming, says, that if they try to come to this day, there will be japs hanging from every pine tree. It becomes clear that the federal government is going to have to provide a place to house the people who are being removed. The first actual Exclusion Orders start on march 24. On march 27, general dewitt issues what is called the freeze order, for bidding japaneseamericans from leaving the military zones, except pursuant to his orders. And then, the japanese and japanese american population, happened in frozen in place, is gradually removed. First, to temper easily centers, which replaces like racetracks and fairgrounds, and then to the relocation camps. Further inland. Japaneseamericans had different responses to this. Some think that compliance is a way to demonstrate patriotism and loyalty. That this is what their country is asking of them in time of war. That was at least 40 while the position of the japaneseamerican citizens league. Some come on the other hand think that true patriotism is resistance. And by challenging the program, in court, they are defending the constitution. And sensibly do not want to leave their homes. That is about the story of Fred Korematsu. Who wants to say in san leandro which is italianamerican fiance. So, a legal struggle starts in the courts. Our challenge is to the curfew, a case called through the ashy and Exclusion Orders, the korematsu case. And the detention and camps. Which is a less wellknown case called. All of those cases are in the novel. But the one i want to focus on in this talk is korematsu. The government wins that case. It is a 63 votes, there are some pretty better defense, but the majority of the court says that we are not going to secondguess the governments decision that it is reasonable to make all the japaneseamericans leave their homes. So, that is a bad episode in American History. And certainly, there are villains. There is crawled and essen, who came up with a plan to detain the japaneseamericans. There is fdr, who let him go through with it. There are government lawyers who presented false information to the Supreme Court, in the korematsu litigation. There are War Department officials who decided to draft the people they had classified as disloyal and imprison them in cans and prosecute them for getting to serve. There are people who try to encourage the imprison japaneseamericans to renounce their citizenship. And then to ship them to japan after the war. But, there are heroes, too. There are government officials who fought against the program. There are government lawyers who tried to be honest with the Supreme Courts, who try to get it to do the right thing in the korematsu case. There is a judge who acquitted some of the draft resisters. And who later ruled that their navigation as citizenship was not valid. So the struggle between the heroes and the villains, that is the backdrop for this novel, allegiance. As i was looking over the historical material, i was wondering how to tell a story. It is a big story with a lot of different parts. I was thinking it would have to be a sweeping multiperspective epic. But then, late one night, it occurred to me that i could get almost all of it in from one perspective, and i could write in first person if i pick the right person. Havingn, rather than multiple perspectives, i could have one persons perspective changing, as he grew and learned more. So, that is what i did. My narrator in this book, my protagonist, is a guy from philadelphia, because that is where i am from, and his name is cash harrison. His loss pearl harbor is attacked and he wants to join the military but feels the physical. He gets a chance to clerk for justice hugo black on the Supreme Court, and his clerking for the first of the japaneseamerican cases, the one about the curfew. Then, after the clerkship and, he stays in washington, d. C. , and gets a job working for the Justice Department and ends up being the person writing the briefs for the korematsu case. Thist is his job to defend exclusion and Detention Program before the Supreme Court. In all ofts involved these historical episodes that ive described, plus, a murder mystery and a love story. [applause] a lot ofsevelt iii his emotional journey actually parallels mine. Not the murder mystery and love story, but, his basic development. He starts out as an idealist. He believes that the government can do no wrong. He thinks the government is america. And then, he learns that action, the government can stray from our ideals. That allegiance to the constitution may not mean blind obedience to the government. That way, the people can be better than the government. And that is basically the process that i went through in the years after september 11. As i learned more and more about what the government had done. But, back to the constitution, how does all of this relate to Theodore Roosevelt and fdr . How does it tell us where the heroes of the american story . Well, the constitutional provision that Fred Korematsu invoked in his Supreme Court case, the one he said protected him from this Government Action was the due process clause. It was the same constitutional thatsion that the judges Theodore Roosevelt and after a post, were using to frustrate economic regulation. You cannot set a maximum our law, the judges said. Because it is not a reasonable way to promote the Public Interest. It is a pressing one group to benefit another. Korematsu wasded not willing to make that call. They were not willing to say, this is oppression. Reasonableness, oppression, the Public Interest, we are going to let the people, through their elected representatives decide what those are. That was the position of the korematsu majority. And so, now perhaps, we see the problem with Theodore Roosevelt s vision of the constitution were the people get the last word. Korematsu is a chapter in the story were suddenly the people of the villains. The bad guys. Not all of them, of course, some people both inside and outside of the government, did say that this is wrong. It is unamerican. It is a additional. But they were a minority. The majority thought it was ok. Theodore roosevelt was worried about the tyranny of the minority. Aout judges taking a side of small group of powerful people he called the malefactors of great wealth. But there is also a problem of the tyranny of the majority. And that problem could simply is that the majority may discount the interests of unpopular groups. At people who are different. And it does this particularly in wartime. It does is particularly when people are scared. That is what you see with the japaneseamericans. The majority thinks the government says, it is reasonable to make all of these people leave their homes because some of them might be disloyal and we want to keep the country safe. It is notct, reasonable. If your ballot in the hunt to the japaneseamericans against the safety gains to the rest of the country, it is entirely unreasonable. It is wildly out of abortion. But, the majority think that it is ok. There will prevails and the courts will not stop them. So, that is a problem. Large part, thanks to korematsu, the Supreme Court actually realize this. They understood, pretty soon after, that they had made a mistake. They resolved not to make it again. And they started standing up for the rights of racial minorities in cases like brown the board of education about segregation in public schools. In cases like loving versus virginia about interracial marriage. And then, in cases about the rights of women and the rights of gays and lesbians. And all of these cases you could say, come from korematsu. From a lesson that the court learns there, about the dangers of letting the majority decide what is a reasonable way to treat a minority. Korematsu is, in fact, actually the first case to say that racial classifications, taking away the rights of minority, are especially suspect. But, all of this leaves us with a little bit of a puzzle. Nowadays, as i said, we have a more assertive Supreme Court, more willing to secondguess the judgment of the government or the people that something is reasonable. Court andre assertive Theodore Roosevelts vision of the constitution gave us. And some of the assertive decisions that this court makes are considered great ones. Brown versus board of education, or loving against virginia. Controversial,e rovers versus wade, maybe or the more recent samesex marriage decision. Although can ultimately, i think that will be accepted. But, some of these decisions are widely considered bad. Citizens united, maybe. Or the Supreme Court says that corporations have the same each right as individuals. Maybe some of the other cases, where the Supreme Court protects the right of corporations and the wealthy. Those decisions actually look whole lot like the kind of decisions that Theodore Roosevelt and fdr opposed. So, the question we have, is when is the court justified in coming in to set aside the results of the ordinary democratic process, to say that people cannot have the last word . Sometimes it seems like it should. Cases like brown or korematsu. And sometimes, it seems like it should not. Cases pushing back against the new deal. Or maybe Citizens United. So, what is the difference . The difference is, that in the cases where the court was right to come in, you can tell a pretty plausible story about why the democratic process will not work. Why you cannot trust the majority when they say that something is a reasonable way to promote the Public Interest. Is main reason for this, that in most of these cases, the cost of whatever the majority is doing, driving japaneseamericans from their homes, segregating schools, banning samesex marriage, the costs fall on a group with whom majority does not empathize. People whose interests, they are not likely to weigh accurately. Racial minorities are perhaps the clearest example of this. But, you could say the same thing about women, you could say the same thing about gays and lesbians. You cannot say the same thing about corporations. You cant say the same thing about rich people who want to contribute lots of money to political candidates. These are not people who let political power. These are not outsiders, people who argued with suspicion because they are different. People who are misunderstood. Those are people for whom the ordinary democratic process works just fine. My claim is that the proper role of courts in a democracy is to protect the people whose interests are not adequately counted. Not to give more power to those that much already. This is something that i think the roosevelt would both have agreed with. And now, the last point, which is really the main point. Suppose the judges do what i think they should do, and what im saying the roosevelts would have also thought. Lets say they protect the politically weakened to not add to the power of the politically strong. Does that mean that judges are the real heroes in the story . The answer is not really. Judges if you ask protecting the weak and unpopular, the answer is, it depends. If you look at the Equality Movement of American History, and there have been basically three major Equality Movements, race, sex and sexual orientation. They follow a very precise and similar pattern. First, there is a. Of time when most people think that discrimination is justified. Blacks and wife cannot write in the same railroad cars. Women cannot practice law. Gays and lesbians can go to jail for samesex sexual activity. And during this time, courts do not interfere. You have the tyranny of the majority. If cases are litigated, you get decision for korematsu. How did things change echoed not through the courts. Not initially. This is something that Theodore Roosevelt sought. If the majority of the American People were in fact tearing us of minority, democracy had no good or selfcontrolled and writtenthen, indeed, no words which our forefathers put into the constitution could stay that tyranny. So, it is not the courts, and it is not actually the constitution. That a socials Movement Arises to challenge the discrimination. To say, this is not reasonable. This is not justified. This is oppressive. Is that social movement succeeds, which is to say, if the American People change their minds, then, eventually, the Supreme Court steps in and says, this discrimination is unconstitutional. No one can do it anymore. Not even in states were a majority still thinks it is ok. And what it is doing there, is enforcing the will of a National Majority against local majorities. Against outlier states that are not in step with the national consensus. And that is the pattern of all of our major equality decisions. For civil rights, womens rights , gays and lesbians, too. The court is not leading those movements. The court follows. So what does that mean . It means that the values that the Supreme Court enforces are ultimately the values of the American People. It means the judges cannot be better than the people, and it means that you cannot rely on judges. Liberty lives in the hearts of the people. If it dies there, no court can save it. So too, for fairness. So too, for justice. All, for empathy. Empathy is what makes us able to make the distinction between reasonable laws and oppressive ones. Empathy is what lets us understand the costs we inflict on people who are different from us. People who might seem scary. Or dangerous. So, the true heroes of these Equality Movements are not judges. They are first, the social and numerous spoke out and second, we the people. Who heard them. That is to say, we are the heroes, or the villains. As the american story. That is really what the novel is about. It is an attempt to tell you a chapter of that story, to show you the heroes and villains of the past, in hopes that we can learn something for the future. Thank you. [applause] roy thank you very much, professor roosevelt. May i remind our Radio Audience that we are listening to the Commonwealth Club in san francisco, and our guest tonight is professor Kermit Roosevelt, a law professor at the university of pennsylvania. We are going to go to audience questions at the point where they are brought to me. Ask younwhile, let me to follow up with the sequel to korematsu, where there was a judge who was a hero, judge marilyn patel, of our own Northern District of california, petitioncourt, in her for Fred Korematsu. Prof. Roosevelt iii yes. So, the story of the detention of japaneseamericans is a fascinating one. There are many aspects of it that i really did not know. Before i started researching and writing this book. I knew the general outlines and i thought maybe there was a parallel to the current situation. It turned out that the parallels were much more pervasive and more precise than i had realized. One of them has to do with this. I mentioned briefly in the talk, some of the villains, the villains are government lawyers who present false information to the Supreme Court in the korematsu case. And what happened here was, general john dewitt, who is pretty much a felon, he is a racist, he is kind of incompetent. I hope none of his descendents are in the room. [applause] prof. Roosevelt iii he writes a report explaining why it was necessary to remove the entire japanese and japaneseamerican population from the west coast. And he asserts that there are certain specific facts that demonstrate disloyalty among the population. Areof these is that there radio transmissions, that people are signaling to japanese ships. Another is that their arsenal life to japanese submarines. And the Justice Department, which had to defend this program, is of course, very interested in the factual support for it, because if there is evidence of disloyalty, that would give a good reason why you might think it was necessary to remove the japaneseamerican population. So they investigate. They have the fcc contract on these radio transmissions. The fbi goes and looks for the signal lights. It turns out that this is all false. Some of it is made up and some of it is just mistakes. The army radio operators amber ticker seem to be very bad, theyre picking up radio tokyo and assuming that it is originating in oakland for some reason. [applause] [laughter] prof. Roosevelt iii the government knows that this report is false and incorrect. Nonetheless, they end up presenting it to the Supreme Court suggesting that the judges can take judicial notice that fits, and rely on the factual claims in its. So, the government present false information to the Supreme Court , later on, this comes out. Actually,me 40 years, when a professor named peter irons, and a researcher at his areko yoshino that doing research for a book about american japanese dissension and discover that this report was falsified and also that it had been changed in some material respects. And, they think, that is not very good. A case that the Supreme Court decided based on false information, maybe that should be revisited. Court, aactually go to lawyer is also participating in this. Korematsusnd, fred conviction, much afterthefact, unfortunately, is overturned. And, that is an interesting episode, i think, because it is also one of the sort of striking parallels to the post9 11 events, which is the presentation of false claims to the Supreme Court. , United States versus , where the bush administration, as it always does in these cases, is saying to the Supreme Court, we do not need any judicial oversight of our detention practices because we are the good guys and we do not make mistakes and we really would not do anything wrong, trust us. And some of the justices are skeptical, and justice ginsburg, in particular, since, well, what mildmebody decided that torture might help get some information . Some systems of government do that. And assistance with your general responded immediately, our executive does not. Which was of course, completely untrue, because we had the whole cia enhanced interrogationtorture Program Going on. In that case, the falsity of the assertion came out and what more quickly because that their evening, the abu ghraib photos were on the cbs news. [applause] [laughter] prof. Roosevelt iii and it matter to the sprinkler, not just that they had been lied to, but because it was repeating a pattern of the korematsu era, because the Supreme Court, i think, in the post9 11 were under decisions, was quite aware of the historical parallels. Justice souter actually, was reading the peter irons book about the korematsu case. Fred korematsu and so participated, as amicus curiae, a friend of the court, and filed a brief in that case. Pointing out the parallels. So, the takeaway, overall, i think is that things were done, they came to light, and in some ways, they were partially rectified, when frank remarked his condition was satisfied, similar bad things happened again, the Supreme Court was a little bit more on its guard, and i think that if you look at the performance of the Supreme Court after september 11, and compared to the performance of the Supreme Court during world war ii, it is actually doing a better job keeping an eye on what the military does in the name of National Security. Roy thank you. I now have quite a handful of questions. Quite a few good questions. I think, first of all let me apologize if i do not get to your question because we will clearly run out of time. Im going to go somewhat chronologically, just to create a framework. So, the first question real relates to president roosevelt Theodore Roosevelt, and the antitrust laws. So much of an advocate of a strong enforcement of the antitrust laws . Prof. Roosevelt iii that is very consistent with Theodore Roosevelts philosophy of governance and his political philosophy, which is that the government should serve the Public Interest. The government should enact laws that benefit everyone. He was worried about, as if it, the tyranny of the minority. He was worried that a small number of powerful individuals, or powerful interests, could exert an undue influence. Either through the legislature, that they could capture the legislature and get laws enacted that benefited them, or maybe, just through the free market. Which, can produce dysfunctions if you get monopolies or intense concentrations of power. So, what he was doing there was he was trying to minimize the extent to which concentrated power in the hands of private individuals could be deployed for selfish ends. Rather than to serve the public good. Term duese the process clause in discussing the early restraints of the judiciary and post on congress, efforts to enact child labor laws and wage loss and so forth. Could you give a very brief explanation of what due process clause means . I know that is a whole course in moscow. In law school. Prof. Roosevelt iii that is a big technical and complicated legal question. I would try to give a very short summary. This is something that legal scholars argue about. The view that im going to give you here is my view, which of course, i think is right, but not everyone see it. [laughter] prof. Roosevelt iii the basic people create governments for certain purposes, they delegate to those governments the power to pursue those purposes, but, there are some things they would never want the government to do, therefore, if you see the notrnment doing that, exercising for the people have given to it, and what it is doing, although it might look like a law, is actually not a law. So, if the government if the twoslature decrees that people who were married are no longer married, and instead they are married to other people, it could have the form of the law that could be enacted by congress and be signed by the president , but, this theory of the due process clauses, we would never give the government power to do that. And therefore, even of this look like a law, it really is not because we know it is not a proper exercise of power delegated by the people. So what you have there is no law. If you had the government trying to do something, but there is no law that justifies what it is doing, it acting without due process of law. The words of the due process clause say that no person shall be deprived of life, liberty or property without due process of law, if the government is doing one of these things that are just completely outside the purpose for which government is created, they are not acting by means of a valid law, so they will be violating the due process clause. And that is a reasonably persuasive thing to say, i think. The way gets a little bit more controversial, in the early 20th century is the courts start to say, a minimum wage law, or a maximum our law is just taking away from the employers, and giving to the employees, and this sort of taking from one person and giving to another person is just like suddenly saying, you are not married to you or anymore, you are married to some analysis. The kind of crazy thing that we would never get the government power to do. And that, i think is where they go off the road little bit. Roy very good. Someone knows their history farewell would like to know what philosophy, tafts when he succeeded fdrs president , and they were very good friends, and taft was promoted by resident roosevelt to be the next president. But, they had a falling out. Over policy. What was the difference in tax policy that caused president causedpolicy that roosevelt to be so concerned . Prof. Roosevelt iii i think the answer is that Theodore Roosevelt was more progressive and have to was a more traditional republican. Constitutionally speaking, Theodore Roosevelt had views that were pretty radical. For his time. The views that i have described. Thought that it are roosevelt, did not respect the constitution. This figure the house at that theater roosevelt has no more use for the constitution than a tomkat has for a marriage license. [laughter] prof. Roosevelt iii i think that is not right, i think Theodore Roosevelt did have a real vision of the constitution, and is is said, a lot of that vision is now in the actual words of the constitution. The 16th, 17, and 19th amendments. He also did have this idea, as i said, that the people should really be in control. So, he wanted what is often called popular constitutionalism. He wanted the opinions of the people to determine the meaning of the constitution. That was considered very radical at the time, and still is. One of the things that i would suggest, is that, it also is, in fact, part of her constitutional practice, if you look at what the Supreme Court has done in the name of equality, it is understanding of what is oppressive discrimination, and therefore therefore unconstitutional, a reasonable treatment, and therefore ok, is remission for by Public Opinion. That is just the way its worked out over the years. So, i would say, with sound sort of radical, the people being in charge of the meaning of the constitution, actually is what is given us some of her most celebrated cornerstone constitutional law decisions like brown versus board of education. Roy another interesting historical question. History,ctive president roosevelt is actually reelected in 1912, when we have entered the First World War more quickly . This isosevelt iii going to little bit be on expertise, but i will just say yes. Because, theater roosevelt was a little impulsive. And he was not averse to military action. [laughter] prof. Roosevelt iii in the end, this is sort of the great triumph and the great tragedy of Theodore Roosevelt life, i think to a large part, he was driven by a sense of shame at his father had not served in the civil war. For, kittery since, which were action pretty good reasons that his father was married to a woman with relatives in the south and she cannot stand the idea that he would be fighting against her relatives. But, his father did not serve. Theodore roosevelt that that was a shame. , ande embraced militarism was very enthusiastic about his own military service in the spanishamerican war. He urged his children to go into the military. And then he lost his beloved youngest son. In the First World War. Moving forward to 1940s, you discuss relocation in california. Could you discuss the somewhat different and may be anomalous outcome of the treatment of japaneseamericans in hawaii . Prof. Roosevelt iii the treatment of japanese the treatment of japaneseamericans and why was one of things that suggested something fishy could be going on. If youre concerned about disloyalty within the japaneseamerican population, and japaneseamericans assisting Imperial Japan and the effect that that might have on u. S. National security, there is a much stronger case to be made with respect to hawaii, where there is a larger population, it is closer to japan, japan actually attacked hawaii at pearl harbor of course. And, there was, in fact, an episode where a japanese pilot from the pearl harbor attack went down was assisted by some locals. Saidou could maybe have some more plausible things about security concerns in hawaii and yet, there was no mass detention. So, why does it happen on the west coast when it does not happen in hawaii . It doesnt make a lot of sense if youre thinking from a National Security perspective. The premise that the people govern is premised on the assumption that people get the correct information. Least, we will accept that as a hypothesis to this question. Multiple sources of information, many of which are customized to fit a particular point of view, can the theory of opinion emanating from the people and being passed through the legislature to the court really function . Prof. Roosevelt iii well, that is a very good question. Is to somehe answer extent, i certainly worry about that. One of the things that people worried about the most when the internet was starting to become that peopleve was with selfselected is that they saw and they would live in their own little echoed chambers and become significantly misinformed because they would only hear views that they agree with. The empirical work that im aware of suggest that that has not happened to the ends that people feared. It is the case that there is one news channel whose viewers seem to have a number of mistaken factual beliefs. [laughter] prof. Roosevelt iii and exit the 2004 election, i think, demonstrated this. So, there is a certain amount of misinformation going on. Mitigatedat it can be , at least for my purposes, by two factors, one is, even low information, or misinformed voters can still pick members of a Political Party that stands for certain ideals. And, if you dont know much about what is going on in the world, or you dont know much about particular candidates, you can still pick a party. So, when i go to vote in , imdelphia, i am sorry ashamed to admit the fair often lots of races where i do not know anyones name. There are lots and lots of lowlevel city positions and i dont know these people are. But, i still vote in the selections, and not just because i like to will to random power. I will because i can big party and i know that one of the parties matches my ideology better than the other. So, even low information or misinformed voters can pick a Political Party, then the other thing is, on some of these questions, actually, on the questions where i am saying, the people do have the last word, popular opinion does, in fact, determine the meaning of the constitution, theyre not really political questions, they are strategic questions, they are not, with their collection connection between iraq and september 11 . They are listed from us, who is like us and who deserves a quality and is it appropriate to treat differently. When is it fair to deny people certain rights because of who they are . Those are sort of moral questions. And, you do have situations where people make those decisions aced on misinformation. If you go back when hundred years, there is racist science that justifies racial determination. There is exaggerated science about biological differences between men and women that justifies sex determination. There is pervasive misunderstanding of sexual orientation. Which is exacerbated by the fact that many people who do, in fact no gays and lesbians do not realize that they know them. End, that tends not to persist. I do believe that through personal acquaintance, like experience, the working people can generally get the right answer on those kinds of questions. Context, what are your feelings about the Citizens United decision, whether that was driven by what the people wanted, or by perhaps, what the court wanted . Prof. Roosevelt iii Citizens United is a very interesting decision because many people say , look, the Supreme Court never get that far away from mainstream Public Opinion, and if it does, it does not stay there. And with Campaign Finance or form, the Supreme Court really does seem to be pursuing an unpopular position. And, why is it doing that . It is hard to say. Attributingid narrow partisan motives to the justices. About a lot ofay decisions, hey they benefit one Political Party or the other, i try to think about it in terms not narrow partisan politics, but is sort of broader worldview. How do justices think the world works . And one thing that you can say, i think, pretty confidently about the Roberts Court, is the Roberts Court is very comfortable corporations. They think that Large Corporations are a pretty benign force. In the political world. They think, hey, speech is good. Why should we distrust speech just because it is coming from a Large Corporation . This is good information for the American People. And maybe they think, hey, the American People are smart enough to figure out when they are being lied to. I also think the American People are smart, but i generally think the influence of corporations on politics is not as benign as the Roberts Court supposes. But i do think this is certainly not understood by the justices themselves as an attempt to benefit some Political Party or to it if it wealthy as opposed to the less will be people. I think that has to do with the general worldview. And the general worldview, for the majority at least here, is one in which corporations are a valuable part of our social fabric. And thats in context, why is the court so handsoff on gerrymandering, because, really, the whole purpose of gerrymandering is to deny the minority equal access to voting power . Yes, it isvelt iii interesting that the court does with jerry manders. During rendering. Racially, they say this Congressional District has out of line drawn in order to benefit disadvantaged members of a particular race. They are very aggressive. It will come in and say, race is a significant factor in the way these lines were drawn, that is unconstitutional. What they have said they will not touch is the partisan gerrymandering. Were Congressional District or other district are drawn in order to benefit or disadvantage some Political Party. And the reason for that, is not that they think it is ok, because this is an unusual case where they say, yes, that could violate the constitution. But we just dont know where to draw the line. They think it is too hard to identify the degree at which partisan considerations crossed the line into unconstitutionality. And i have some sympathy for that because it is hard to figure out where the line goes. And, this is an intensely political issue, and in the end, it is probably selfcorrecting. In that, you can maintain a artisan gerrymandering for a certain timeframe and collapses entirely. Once the numbers which enough. Roy i think at this point, this is quite a remarkable question and im going to ask the person who asked to this question to stand. Karen korematsu. The daughter of for korematsu. Welcome. [applause] roy thank you. I thought that was appropriate because you asked a very important question. Im going to read it, literally. As you know, korematsu versus the United States decision still stands as good law. Even though it has been discredited. Do you think Something Like the japaneseamerican incarceration could happen again . Prof. Roosevelt iii first, thank you for coming. I have been wanting to meet you for a long time. Im very glad that you are here. And, the answer to that question is, i think it could. Yes. That there isear still a majority of the Supreme Court that is of the view that if it is necessary to protect the country, the government can do just about anything. And, the only real question then, is, when will the judges be willing to say, or be willing to accept the claim that religion, say race or correlate sufficiently with danger. To make it a permissible classification. And the answer to that is, it depends on how scared people get. ,ecause, when people get scared they distrust people who are different. They see difference as a marker of danger and they are quite willing to say, maybe not all of this people are bad, but im sure some of them are. And i dont really know how to tell the difference, so were going to classify them all as dangerous. In fact, and i know that you know this, there was a very nypdt decision about religionbased surveillance of muslims. Which was challenge. And, initially, the claim that it was unconstitutional for the new York Police Department to single out individuals and organizations for surveillance on the basis of their religion, originally that claim was rejected, at the District Court level, the judge said something that reads just like the beginning of justice blacks opinion in korematsu. When he said, this is not an antimuslim program, this is an antiterror program. And, he went on to say that this is good enough. Which is just like what justice black said in the korematsu decision, he said, for korematsu was not detained because of his race, he was detained as we are at war with the empire of japan. Side to thaty story at least, so far, is that the District Court judges decision saying that this is not antimuslim program, but an antiterror program, was overturned on appeal by the third circuit, and, the judges wrote an opinion that explicitly mentions korematsu and especially mentions the detention of japanese americans and said, we have made this mistake in the past and we should not make it again. And i said that i know that you know about this because one of the reasons that the judges were aware of the connection, with the reasons why they framed it in those terms, was that there was americas participation by the children of most of the litigants of the Supreme Court japaneseamerican detention cases from the world war ii era. Roy thank you. Prof. Roosevelt iii so thank you. Roy interestingly, korematsu is still cited frequently for the notion that we have to have very strict scrutiny when there is classification based on suspect classifications such as race or ethnicity. Though the court decided on a completely different theory, they went to Great Lengths discussing the strict scrutiny standard which we still use today. This leads us to the obvious question about todays president ial campaign and the dialogue around here and control over immigration, particularly immigration based on ethnicities. So, the question, which several people allude to, is, do you see the roots of another korematsu type of classification in some of the dialogue we are listening to today in the president ial campaign . I thinkosevelt iii that attitudes and the reaction underlying that rhetoric is exactly the same as what led us to korematsu and two japaneseamericans being detained. I think that there is a pattern when we getlf that attacked, particularly get attacked it is surprising, and expected way, we get scared. Thewe get scared, we draw usthem line a little closer around ourselves. And you can see this, i think in the criticism of the 14th amendment birthrate citizenship principle. So, it is not enough, some people are saying now, it is not enough to make you an american if you are born here. Those people are not necessarily real americans, real americans, that means something else. Generally what they means is someone more like me. So, in times of national insecurity, there is a tendency us them line more tightly to decide that people who are different might be dangerous, and then to decide when to put them on the other side of the line, that just about anything you do to them is justified if it might make the real americans safer. So, that is the kind of thinking that leads us to commit injustices, it leads us to do it over and over again through American History. We do tend to regret them, relatively soon thereafter. We frequently say, we will learn from past, this will never happen again. And i think that we have made some progress. Patterntainly, it is a and a cycle that we need to be aware of, and that we need to be on our guard against. Roy but who could be the counter voice for reminding us of history . Difficult for someone campaigning for president to just for the dynamics you described. Choice one selective your news broadcast you are not going to hear a counter voice so going back to your thesis about Theodore Roosevelt and the people, how do the people have a in which to point out therm counterproductive myths, the syndrome you described . Challenge for the people. Especially if they are misinformed by media sources. The will get distorted views of the dangers. Brave. People to be we need the American People to be brave. We need the American People to have empathy, to be able to recognize the humanity and the worth and everyone who walks the earth. That is maybe asking a lot. We are not going to be perfect it i do not expect us to be perfect anytime in the foreseeable future. I hope that we can be better than we have in the past. Are better because they learn from history. As i said, i talked to that theice in the summer before war on terror cases were decided and he had been reading that book which described the struggle inside the Justice Department. I think he definitely was impressed by that history. If you look at the Supreme Court decision, they certainly did learn from the history and the efforts of korematsu and others theemind the courts of relevance of that history is very valuable and important. Do you feel president obama he pointedly addressed this issue last night about not classifying generalities with regard to muslims. Do you feel as though he was an effective voice in that speech . I hope he was. Does come down to what people are willing to hear, what people are willing to listen to. Enoughot be emphasized l to turns isis goa western societies into societies that oppress muslim populations because isis wants everyone to feel that there is an inevitable clash between islam and the west today want everyone to believe that muslims cannot coexist peacefully in the west and they want that to happen by attacks on their side and repression from our side and they hope they will feed on each other. That is a road that we do not want to go down. Maybe fdr got it right when he said we have nothing to fear but fear itself. Excellentlyput. [laughter] so, thank you professor. We appreciate it very much. [applause] and thank you, korematsu. [applause] signing. L be a book [captions Copyright National cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] announcer the 1966 vietnam hearings, this month on American History tv. You can watch each week and on saturday nights at 10 00 eastern and sundays at 4 00 eastern. Only on cspan3. I am trying still to decide which candidate to support their trying to decide between the governors who have executive experience or some of the other candidates like marco rubio or ted cruz. The most important issue to me is national service. There are 5 million Young Americans who are ready to step forward and serve their country. Next on American History tv, Margaret Oppenheimer talks about her book, the remarkable rise of eliza jumel a story of marriage and money in the early republic. Jumelnto poverty, eliza became one of the richest women in 19thcentury new york. The author describes her unusual life, including a marriage to Vice President aaron burr. The museum of finance hosted this event. Good afternoon, everybody. There has been a big resurgence in the past year of all things hamilton with the play on broadway going on. We are going to learn more about