Woodstock, and the 1970s. Woodstock, 50 years, sunday on cspans washington journal and live on American History tv on cspan3. Constitutionsat and the rule of law with chief judge roger gregory, and jeffrey professor a. E. Dick howard. Held at the college of william and mary in virginia and is about an hour. Welcome, welcome. As we just noted, we are here to talk about constitutions and the rule of law. With a particular focus on a few got a rule of law, how do you keep it . How do you nurture it . How do you make it stick . And we got three extraordinarily distinguished panelists to lead these conversations. Each of them is directly involved in the workings of constitutional democracy studying it, thinking about it, writing about it, teaching about gregorys case, actually directly involved in its workings. Let me introduce this triumvirate. Roger gregory is the chief judge of the court of appeals for the Fourth Circuit. And judge gregory has served on that court for 20 years, almost 20 years, and is now the chief judge. He has the distinction of having been nominated for the court by both president clinton and president george w. Bush. And he was confirmed by the senate 931. [laughter] gregory is the first africanamerican to serve on the Fourth Circuit. Before going on the bench, he practiced law for almost 20 years, including founding a law wilder, the first africanamerican governor of virginia. Cheeredk howard is a professor of law and Public Affairs at the university of j vignette of university of virginia and served on the faculty longer than any other mortal. [laughter] mortal, dead or alive. [laughter] strong 55l going years into the mission. Professor howard has devoted his professional life to probing the mysteries of the u. S. Supreme court, and to understanding constitutions. Principal trestman of the last revision of virginias constitution of 1968, and helped to write constitutions in many countries. He has been acclaimed of one of the great virginians of the 20th century. Jeffrey rosen, here on my left is a president and ceo of the National Constitution center. Learn on a students nonpartisan basis about the u. S. Constitution. Georgelso a professor at Washington University law school, and a contributing editor of atlantic magazine. Absolutelyosen is an prolific scholar and a writer. And i think it is fair to say, he is one of our countrys most compelling analysts and commentators on legal matters, if not perhaps the most compelling. Read theprobably description of this panel in the program for the day. Rule of man or rule of law . Man or rule of law . Society without checks and balances. What is the role of constitutions in making the rule of law take hold in emerging representative systems . And what makes the constitution last . You cannot build a Free Society Without the rule of law being paramount. The question is how to make the rule of law stick. Now, when it comes to the rule of law, it seems to me that past experience makes pretty clear that it is often easier for a country to talk the talk than to walk the walk. Constitutions are written and adopted around the globe with provisions for the protection of civil rights, independent judiciary, checks and ellen says, and much more, but when it comes to implementing these constitutional provisions, the rule of the often cannot compete with the rule of power, privilege, greed. So, what factors really do account for the success of the rule of law in some countries, but not others . And once the rule of law takes hold, how can it be nourished over time . How can it be made to stick . And are there reasons for us to believe that the rule of law will hold increasingly in the centuries to come . Or has the rule of law had its and nowment in the sun, constitutional democracies are an endangered species, sinking in a sea of enormous technological change and societal alienation . Now, these are questions i will with at the end of their presentations, assuming they leave enough time to get to the questions. [laughter] battle for this panel will be that each panelists gets eight to 10 minutes, uninterrupted, to give his perspective on constitutions and the rule of law. And then we will have a conversation together along the lines that i just sketched. And lets begin with judge gregory in the middle. Inis actively involved making constitutional democracy work as a judge. And he obviously has thoughts independentle of an judiciary and a functioning rule of law. Judge gregory, you are unleashed. [laughter] thank you. As any good trial lawyer would know when you have great , experts, you just get out of the way and make them when the case for you. In this case, i have great experts and my job is easy in that regard. The role of a judiciary is absolutely essential. And that is my answer. But it is true. 1787, when our framers came out of that musty room in philadelphia, someone asked ben franklin, what have you wrought . And he said, a republic, if you can keep it. It was important because he said , if you can keep it. He was not speaking to the people who adjusts forms this document to bring forth a new nation. He said this republic will be here if you keep it. Constitution has stuck, it sticks, and i think it we, theck as long as people, understand that it belongs to us. The idea that the people seated this power to a government for its purpose. It amazes me that most men do not cite the preamble when they come before our court. There are very pressing constitutional issues. The reason being because, i say that because our framers spoke in broad language and broad principles. So, everything is not just from the text to read, but the inamble said we do this order to establish a more perfect union, and it was also to first mandate to establish justice, so i say the preamble should be cited because whatever we do with interpretation, the end mission is always justice. Therefore, i would always argue, if there is a question, if there bend,oubt, if there is a it must be towards justice. Dr. King said the oral arc of the universe is long that it always bends toward justice. That is probably the most enduring thing the framers gave us what the preamble because the ark must bend to what is established. As the biggest tool we have judiciaries is as the judiciary as we are independent. Federalist paper 78 says that the constitution is the fundamental law and judges shall regard it as such. But it also says in terms of judicial review that establishes the rule of law. That it becomes the primary law and women,not men but the law, and further, federalist paper 78 said that it is the peculiar province of the courts to interpret the law. Proper, peculiar province of the courts. That is a heavy assignment to interpret the law under judicial review. It came through that in terms of understanding. But i say this, that power is interested to us by the people, and i think the most important part of the analogy i would give is like an anvil. If its the anvil upon which the constitution has worked. You see because it has to be worked. Not with a hammer beating people down, but if you will, to make it a tool that becomes the utility or selfgovernment because there was so much the framers left open. Most people who watch police shows know about miranda rights. But that is not in the constitution. But it is in the constitution that you shall not be made to give testimony against yourself. So, it should not be a place you would somehow cores or intimidate, so what grew from that is judicial creation for the purpose of carrying out the spirit of what the framers did, and that is what we are always trying to do. Not just find out about the text. You cannot work it just by reading. There has to be context. It is history in the classic forms of government. That is what they gave us. A republic. As a judge, i have had some incredible cases since i have been on the Fourth Circuit. They are always difficult. That is what the whole challenge is. To make sure that selfgovernance is preserved. And rights are protected. Because again, it is the people that gave it, and going back to it federalist paper 78, talks about in terms of judicial review and nullifying the acts in congress, or acts of executive, it says that when you get to ascertaining what the constitution is, and this is what keeps me in check because the people gave me this power. A very sacred one. First, ascertain what the constitution says and understand it. And then ascertain what the , statute of the active. And then determine whether or reconcilablean in irreconcilable variance. If there is so, you always prefer the constitution over the statute. Not because you want to do it, but because the intention of the people, which is expressed in a constitution, should always prevail over the intentions of its agents. I love that phrase. Because again, you own it. You gave it to me with the sacred trust that i will do so without fear or failure, but in terms of the constitution, making it a living document, making it a tool that is useful, that can carry out selfgovernment. I remember i was on a big case, and i was about to come on for oral arguments, and i could hear crowds of people outside circulating the court. They had placards. I thought, how wonderful this country is. That people are free to assemble and to express their views. Now, i cannot look out there and try to count more than to see what was the prevailing thought. Like justice, i am blind to that. But the people sacred trust must be kept in the confines of understanding that constitution. One of the greatest compliments i had since i have been chief. A man i was introduced in church me, ane said to africanamerican man said to me the Fourth Circuit is a just , circuit. It turns out he had a habeas case. He had won his case, but that was not the point. He said i went from an incarcerated person, and 80 months later he owned a home. He said this is a symbol i use. I go back to the prison and tell other people where i was, how they can do something to change their lives. And that is what to me makes the judiciary important over the constitution in trying to do what it dictates our importance because it gives us a chance for all of us to understand selfgovernance and being who you can be, the highest person, all people, and making it inclusive. We talked about the glaring things left out of the constitution. The right to vote and citizenship are not defined. And yes, we have a republic. The question is, we must keep people engaged, and i am happy that the judicial has a role in that. And a friend of mine who died had a caseg ago, he that talked about executive privilege, and said democracy died behind closed doors, but we must be transparent. That is why we have opinions. Read them, understand them, this understand them, disagree with them, but know that they are done so faithfully to be faithful to the rule of law and selfgovernance will always prevail. Thank you. [applause] roger, thank you. [applause] glad you are on the Fourth Circuit. Judge gregory thank you. Professor roseann. Mr. Rosen we have heard about the role of it independent judiciary in the rule of law. I would like to address structural checks and balances a bit. Ideally leading to compromise among the policymaking branches of government. Thank you for that question. Thank you for including me in this significant anniversary. It is a great honor to be here among three great virginians. I was born in new york. I lived in washington dc, and now work in philadelphia. Right across from Independence Hall where jefferson wrote the declaration, and madison and those other great framers wrote the constitution. What was madison thinking when he created the greatest human document of freedom . What was the centrality of the structural guarantee for the preservation of the rule of law . The summer before he came to philadelphia, madison had a reading project that had been sent to him by jefferson. Jefferson sent him two trunk fulls of books from paris about the failures of ancients democracies, in particular greece and rome. And madison was concerned that america might go the way of greece. Thatderalist 55, he wrote in all large assemblies, passion never fails to rest the scepter of reason. Beenif every athenian had socrates, athens was still have been a mob. So, madison deduced from his reading that unchecked mobs beiberating facetoface can seen with passion and lead to factions, which he defined as groups animated by passion rather than reason. Thanlfinterest, rather the public good, would judge asgory so memorably defined poodle,. So memorably defined. So, madison and the other framers set out to design a system where people would be ruled by reason instead of passion. Structural protections were at the core of that project. In particular, madison was concerned about mobs like shays rebellion in massachusetts. He wanted to design a system that slowed down the liberation. He is particularly encouraged by the large size of the American Republic. He thinks because america is so big, it would be hard for mobs to discover each other, and by the time they do, they will get tired and go home, therefore, their representatives will be able to deliberate lawfully by reason rather than passion. That is why representation, which judge gregory so powerfully reminded us, is the core of a representative republic, is key. Unlike athens, the framers did not want direct democracy. They didnt want referenda or brexit vote or twitter poles. They wanted thoughtful representatives of the people to deliberate and compromise. And that is why it is so significant we are here on the 400th anniversary of representation. How did they express these guarantees in the constitution itself . At the National Constitution center, which i want you to visit if you have not yet. We have the five earliest drafts of the constitution ever written, including the very first draft written by that forgotten, but her wrote framer, james wilson, who wrote the first words ever written about the constitution. In the very first draft says and the very first draft says in the preamble that the government of the United States shall consist of the executive, legislative, and judicial branch. That was it. Separation of powers. The idea of we the people came later. And that, too, was wilsons words. It was only the third draft that said we the people of the United States. Signaling will somes believe that we as a whole were sovereign. Powers was theof crucial, central innovation. Where did wilson get this notion of separation of powers . Well from the revolutionary era , state constitutions. And in particular, from the virginia declaration of rights. It is always a meaningful for a lover and scholar and learner of the constitution to come to virginia because not only is regina responsible for the 400 anniversary of the rule of law, it is responsibility for the rights of 1776, which jefferson had by his side when he wrote the declaration of independence, and when madison wrote the amendments that would eventually become the bill of rights. We also have at our center one of the 12 original copies of the bill of rights. And you can find online, drafts of the amendments that madison proposed, but were not ultimately adopted. Can find this on the National Interactive app, and i want you to download it, but not right now because im talking, but after the panel. You will find two drafts that madison drafted that he cut and pasted from the declaration of rights. Channeled andctly basically reproduced was what jefferson put in the second sentence of the declaration of independence, that all men are created equal, and have natural rights from god or governments that government has to secure these rights. That is the lockin statement of natural rights. It reminds us that governments must be limited by constitutions, and when they threaten rights rather than protecting them, they people have the right and duty to change them. But the Second Amendment that madison proposed and was not theted also comes from virginia declaration, and it says the legislative branch cannot exercise judicial power. It was a separation of powers amendment, and it reiterated what the virginia declaration had emphasized, that it was cruciallyimportant for each branch to stay within its own lane in order to preserve the sovereignty of the people itself. Judge gregory powerfully quoted hamiltons notion that whenever there was a conflict between the wheels of the people and the , youof the representatives prefer the principal to the agent. That is based on the idea that the three branches dont speak for the people, only we the people speak for ourselves. Judges can enforce that by ensuring that each branch staves to its own lane. And that is why madison originally thought a bill of rights was unnecessary or dangerous. Unnecessary because the constitution itself was a bill of rights by limiting power, and only specifying enumerated powers to the congress and to the executive and the judicial branch. He thought it was dangerous because if you write down certain rights, people might wrongly assume that if a right was not written down, it was not protected, but all of the other framers thought right came from god and often government that it ld be impossible to number impossible to limit the number of rights. He changed his mind for prudential reasons. And we have the bill of rights taken largely from the virginia declaration. Madison and the other framers thought those rights would be parchment barriers unless the structural guarantees of the constitution will be preserved. That is why that is so crucial to the rule of law. Asking, wasy madison too optimistic that the separation of powers and checks and balances would ensure a role by reason rather than passion . Remember, the whole system is based on when passion passionate factions or mobs try to mobilize, they wont be able to discover each other, and based on the idea that thoughtful representatives of the people will set aside the self interests of their partisan constituents, and will deliberate in the public good. We all know that we are living in a world of twitter and facebook, where mobs can mobilize immediately and quickly, where false news travels faster and further than fake news because it is more appealing to the passions, and in filtere living bubbles and echo chambers, the people themselves are increasingly unwilling to listen thoughtfully to arguments on the other, and to allow our representatives the time to deliberate in the public because that is the question is there , enough time . Madison thought we should slow down the liberation. Slow down deliberation. At a time when the speed of deliberation is undermining the speed bumps and cooling mechanisms, we need to talk reasonly about whether can adequately be served by the structural mechan