any other questions? okay, well, thank you, you've been a great audience. feel free to e-mail me with your comments on the book. i would love to hear from you. thank you for coming. >> during this holiday season, >> during this holiday season, we're4d tv programs. here's a look at what's ahead. next supreme court justice is john roberts and stephen breyer talk about the 800th anniversary of the magna carta, and a look at the scott case. and supreme court chief justice roger tommy, his role in the scott case and the civil war.

up next on american history tv, u.s. supreme court justice john roberts joins egore judges, the former chief justice of england wales, to discuss the magna carta and the document's importance on the american and british legal -- king john originally signed the document, under pressure from his barrons at running meade england. they looked at the rights guaranteed by the magna carta as they rebelled against the english crown. >> good afternoon, everyone. on behalf of james billington, f want to welcome you to the thomas jefferson building of the

library of congress. we're honored to have -- toe have a conversation about the magna carta and it's legal legacy. term is a very big day for us here at the library of congress and in particular the staff of the law library, for three years we have been planning -- magna carta the exhibition is the beginning for the library to celebrate the 800th anyone of magna carta which will take place next year. as i know many of you know, the centerpiece for the library of congress exhibition will be the magnificent lincoln, king john magna carta which is graciously loaned to us from the library

from lincoln cathedral in lincoln, england. it's one of the four exemplify indications of magna carta that -- tomorrow the exhibition opens and it also allows us to celebrate the 75th anniversary of the first time that the king john, lincoln king john magna carta was on display here at the library of congress. some of you may know that in november of 1939, the lincoln magna carta was entrusted to the library of congress and then put on display. but it was entrusted to us for safekeeping at the very beginning of world war ii. so our exhibition upstairs will help influence magna carta on the influence of ---and in particular, it highlights several legal principles

which -- 17th century interpretations of magna carta, and those are legal principles, the right to due process of law, the right to trial by jury, the protection from unlawful imprisonment and the theory of way to prepare for tomorrow's opening to sit with chief justice roberts and lord judge to hear their comments about this great document and hear their thoughts chief justice roberts i'm sure most of you know began his appointment as the chief justice of the supreme court of the united states in 2005. lord judge, lord chief justice ñ and land in wales in hj as lord chief justice, he was head of the judiciary of the

courts of england and wales. one other item that they have in common is that both are the venture society of the honorable middle temple which is one of the four organizations in england that has the privilege of calling their members to be barristers of evening england. i thought we could start with our conversation focusing on magna carta and it's meaning to us in the present time, and in modern times. when we walk about magna carta now, we talk about the fact that it was the development of -- on the rides of the modern state, but we also know that in the united kingdom in particular, most of the provisions of magna carta have been repealed and certainly in the united states, if magna carta were ever

considered constitutional law and i say that with a small c, it would have been superceded by the united states constitution. so my question is why is it important for us for our respective countries to commemorate the magna carta in this way, and i will start with justice roberts. >> well, it is of course, first and foremost an impose yum symbol. the exact origins of it, i don't think it would have been regarded as a bill of rights when it was issued, the barrons and the king i don't think were terribly interested in promulgating rights that would but over time, it has become a critical symbol, it was a vital symbol during our revolution, john adams referred to it frequently. if you look at the original seal of the state of massachusetts, it shows a militiaman with a

sword in one hand and a copy of the magna carta in the other. it embodied in the colonists, they were not looking for independence, they were lookinging for the rights of englishmen and those were represented by magna carta, it massachusetts, engraved by paul revere shows that that's what they were fighting for, a sword in one hand, magna carta in the other. transfer of magna carta for safekeeping. again, that was an extraordinarily powerful symbol, ovr lightly, and i think they did so in a very calculated way. they wanted to remind us, that this is what they were fighting for. and conveyed a strong message that you should be too.

so it is very useful as a symbol that represents the rule of law, liberties, it's been reinvented over the years, the american colonists when they looked at it, looked at it to be interpreted by black stone, which gave it much more substance as a charter of liberty, which might have been done in earlier centuries. it was a powerful symbol at the time of the revolution, it continued to be a powerful symbol at the time of the second world war, and it's available whenever you do need to resort to something that in a tangible way represents these basic fundamental liberties. >> i rather agree with that. and i think that what the chief justice has said about the magna carta being here in 1939, although it sounds like a -- in

1940, there was a very strong possibility, by the end of 1940, all europe, barring the islands offshore was under the jack boot. it's easy for us sitting in this beautiful building to take for granted that all the things that matter to us about our freedoms are there to last forever. they don't necessarily last forever. in 1939-40, england was very close, britain was very close to losing the war. for the charter to be here, meant that it would be preserved. of course lincoln cathedral wanted it back, any cathedral that has a treasure of infinite magnitude. if you take your freedom for granted, then mag -- if i may go back to it, there are actually

four charters, 1215, 1216,sfp12 and 1275. king john never signed one, he sealed it. the things that were most important to it, is that one clause that people always forget, is clause 61 and it's from this that we take the very vivid principle that nobody is above the law. no king, king anointed, god servant inherits by divine luck if you callpex it. every king made an oath that he would be a good king, do lots of justice, look after poor people, something you would want your new king to do. but in medieval europe, if the king didn't provide justice and so on and so forth. i'm afraid they took the view that he would have to answer to

god in heaven. when a king's dead, it's not much good if you haven't been properly looked after. and what magna carta did in clause 61, if the king does not abide by the charter when he'sk notified that he's in breach of it, in effect a counsel of 125 barrons can take over the running of the kingdom. they're not to harm him, they're not to injure him, they're not to treat him with violence and of course hiss family, but they're no longer stuck with allegiance. this i think is a fantastically important moment. suddenly the king is answerable on earth, not just in heaven. and from this we derive constant references through the middle ages to the king not being above the law. the law comes bj&xñfirst, the k comes second, he's definitely the most important person in the

kingdom. and this leads us to a very important point, which it's easy in a democracy to overlook, but in a dictatorship, it's easy to overlook, no king is above the law, no president is above the law. everyone is entitled to -- we're all entitled to justice the clauses don't just say justice, they talk about right and justice. now, the r there weren't many rights about in 1215, but over the centuries, our rights have come to be established and you find the preservation, the entitlement to a court system that will preserve your rights, is there found withinsáwf the charter. and i regard the insistence in the charter on right injustice, as being it's second most important legacy to us, because again, here in the office of

chief justice of the united states, the office i once held in +ñengland, we are there responsible for seeing that citizens, even if they're taking on the president or they're taking on the government, the prime minister in our case, all the great local body, great local authority, these rightshv are recognized in the charter, the barrons weren't representing us, the barrons weren't full of ideas about voting, of course they weren't. but3u)s as our country dropped these things became part of the country. in england now, if somebody says let's do something that most people would regard as diabolical and dictatorial, it's against the magna carta. people think of magna carta as

representing their rights, their entitlements, the need for justice to be done and most important of all, the quality before the law. >> that's quite all right, because that leads right into the second question, magna carta specific to the law, and we have mentioned no one is above the law specifically. so now that we know that magna carta is more a symbol, it represents as opposed to a specific provision in there. why is it that today people should still -- especially in law, if they have a submission in court or perhaps a judicial opinion coming out, is there more reason other than what you having references to magna carta? i mean is it just simply that rhetoric? or are there real, true deeper meanings for us to do that?

before the united states for an argument, you're in pretty bad shape. we like our authorities a little more current and a little bit more directly on point. i went back and looked and magna carta has been cited in supreme court opinions of the united states only 150 times. which can't that many over two centuries. i thought it was interesting that the very first paragraph of magna carta preserves the freedom of the church of england, including the right to free election of clergy. and is are noticed, though, in

something that i think tells you a lot about magna carta and its history, is that there was a rit issued by henry ii, directing a group to hold a free election, but not to elect anyone other than richard, his clerk. so at least for many centuries, the sentiment was there and could be looked to in magna carta, but the reality was often quite different. so obvq/:&y it's a source of many provisions that are cited to the court. >> our experience is much the same, if the best you can do is magna carta on the whole, you're on thin ground. we have a partly written constitution, partly not. but it's still, magna carta still carries a resonance in the

court process. for example, a few years ago our civil justice system was in some disarray, the cases were taking too long to comeho on, they wer just sort of mev" yarnderring certainly referring to magna carta and not delaying justice, and justice delayed is justice denied, a whole new brand for jurisprudence called want of prosecution was created. nobody said i'm citing magna carta because this case has gone son for 23 years and should be stopped. the judicial system cannot accept this kind of slow process. had magna carta had part of the support for it. so, yes, if you say magna carta,

you're probably a bit short of a better authority. but nevertheless, it remains a useful reminder to all of us, including the judges, that there are some very basic principles which govern our lives, govern our judicial lives and which we should be alert to. and bear in mind, one last point on this, david said on his introduction, we talk about due process. we talk about habeas corpus, we talk about impartial juries, we have is a bill of rights in england, you have your bill of rights here. these are in direct lineage froq magna carta. so the fact that it counts and says that magna carta is my best authority the, that doesn't seem very strong. when you examine the lineage that has come down to us from magna carta stock mark

magna carta stems from the processes developed over the last 100 years. >> i think we'll move along and talk a little bit about magna carta and it's relation to the development of constitutional government then, outside of the law, i guess. in this context, because when i mentioned the library's exhibition, i said that at of the principles that we focus on are drawn from interpretations of 17th century english jurists, but people today will ask us, if you look at it in that context, it wasn't talking about a democracy as we know it today, certainly democracy we say, you know the legitimacy of the state and it depends on the rule of the people and back then it was king john and the barrons. but how did those three democratic origins of the times in england, and certainly a few years later here on this side of

the atlantic ocean, how did that influence the development of the legal system and the development of a constitutional government then? >> yeah, i am sorry, i keep turning to you. but i can certainly turn to chief -- >> it's an interesting relationship, because the development of our constitution, if you look at it from one perspective, had quite little to do with magna carta. in a distinguishing way, hamilton in federalist 84, made the point that we do not provide our rights from a sovereign, that is not how our new constitution is going to operate. we're protecting our liberties by ensuring that the government we're setting up as only those limited powers that we give them, that we the people give in the constitution. our protection is not rights

from the king, our protection is that we are setting up the government and we are going to allow it to do only a limited number of things. so you look at that and you say magna carta had very little role to play, but in fact you need to look at magna carta in a more nuanced way. we think of it as a laundry list of rights, but also it is a reflection of the notion of the separation of powers. in fact it may make more sense to view it that way, in fact you had a king with authority, and the barrons claiming their own authority, most prominently, of course, with respect to taxation, and that is of course very much, the most significant contribution of american political thought that the notion of a government of separated powers. and i do think that does trace somewhat back to magna carta.

>> well, again, i agree with the chief. the reason why magna carta survived at all, is it's a pure historic accident. i mean as i said earlier, monarchs all over the continent were dishing out charters, all promising to all these things. the thing that made the difference and it became of course the call for the colonists in 1765, was that there had to be a link, as it happened between the king raising money, ie taxation, when we couldn't live off his own resources and calling a counoun. it's not representative government at all. but in the clauses of magna carta itself, there's a clause

called the scootage clause. it's very good, it comes from the latin for shield. when you owned a lot of land, you were entitled to say to your villain or your inferior, you bring three surrogates, i'm off to fight a war. the boy on the farm who has a bad back--he said, we'll change this, just give us some money, we'll employ the mercenaries that know how to fight. the scootage provides that the king cannot raise this tax without consent. when the king can't rule off his own money, he has to go and ask. you can have your tax, if you will give us the charter. and so it went on and on until our steward kings, which is the

time when your great country was being founded, decided they didn't agree with this taxation without representation was a perfectly sensible way to go, if you were a scottish king with a divine right to rule, your subjects could rely on you to do the right thing. and it was this battle that went on in our country that ultimately culminated in not a democratic process, but a parliamentary process. when stampac was passed, with a british parliament, proposing direct taxation on the citizens of the colonies, they had plenty of tax for imports and exports, direct taxation, that suddenly they came alive, wait a minute, we're being taxed, and they were, and they weren't represented anywhere, and they

weren't. so no taxation without representation was actually a long, continuing steady development as part of the process which culminateded in people realizing, well, why should only people with land have a vote? why should only men have a vote? why should slave exist? and so on, each generation sees new things that it finds unstepable. and as a result, we hopefully improve our societies. but it all stems from this process. >> thank you, judge. and so i want to go back to something that chief justice mentioned in his previous comments, a separation of powers, because that's one of the things i intended to ask. when we talk about magna carta, the story, the myth over the years, it allows us to represent democracy, like the king representing someone who is overreaching, the state or the barron or the people. but in our contemporary legal

systems, it's the judiciary that you both have headed in your case, that played the role of deciding whether there should be a limiteliminated or not elimin. so i'm wondering if you can talk a little bit about the ideal of that commitment with the magna carta? does that allow this judicial review or perhaps is that judicial review coming from somewhere else? >> i don't think that magna carta had judicial review in mind. i don't think the barrons were too keen about that. what i think is interesting is the way in which your constitutional arrangements developed after the war of independence, after the treatment of paris, i think the madison decision is fascinating. because ultimately it illustrates the difference

between your constitutional arrangements and ours. your supreme court has a much greater, more significant role in the constitutional arrangements of your country than our supreme court has. in our country, ultimately parliament is sovereign. after off if the parliament can impose taxation and then to the act -- was not the way to go forward. and because of this, our systems diverged, you created a supreme court system which is much more significant constitutionally than ours. we rest most of our past that in parliament, but in the end in our country, the judges have to make sure that everybody acts in accordance with the law. we have judicial review proceedings, our government is

taking umbrage at the number of joe -- is our country through judicial review, but it's a slightly different process to the one you have here, where -- let me explain what i mean. termination of pregnancy, i know a very sensitive subject. ultimately is decided here by your supreme court. in england and wales and great britain, it's decided ultimately bring parliament. i think the divergence is based on what the -- >> it's interesting if you go look at one of the great doorss% on the front of the supreme court, there's one with four panels. the panel on the bottom is king john sealing the magna carta, the next panel up is the 1275

statute of westminster, and then george cook and james i. and then tom mar -- they're said to be discussingnyñ marbury ve madison, discussing the direct ling jaj of magna carta which you rightly say is the foundation of judicial review in our country. now unfortunately, cass gilbert said they weren't talking about marbury at all. but the facts shouldn't interfere with a good story. but magna carta was significant respect to judicial review in another way, it was written down and that became very important for us. if you read marbury vrz madison, basically we have this text and we have this statute and if the statute conflicts with this text, one or the other has to yield, and we enforcing this

judgment, we're just deciding a simple case between marbury and madison, but to do so, we have to see which text controls and obviously the constitution trumps the statute. and there's no review clause in the constitution, there's -- all marshall said, well, if we have to decide a case, we have to decide whether the statute conflicts with the constitution and we have to decide that the constitution trumps. so the fact that you were dealing with a written document was very important in marbury versus madison and in our view at least, that's one of the very important features of magna carta, and it's one of the things that makes the institution of judicial review more palatable than democratic -- you are dealing with a writing, you are not dealing with some)zuñ broader interpretation that you might expect from the political branches and at least on the theory of how law was practiced

at the time. you are not imposing your will on the question, you are simply construing a legal document, the fact that there's a writing there, makes the institution of judicial review more acceptable. >> thank you. one other area that i thought might be of interest to our audience is talking about magna carta and the concept of higher law. and here what i'm talking about is the underlying tradition that there is a higher law underlying magna carta itself does not set itself apart as a higher law of sorts, but in!lb 17th century interpretaçvfijt magna carta, it was used in that way, as a model for upholding constitutional elements to statutes, since we have talked about, i guess i'll start with chief justice roberts, that model may not necessarily work for us today, is in anything

that we might cite as and an log from our legal system that can lead us to this similar reading? >> well, you know, in our legal system, and we do think of it still as ours, would be something like magna carta, we don't have a higher law that's something like the natural law, we have is something that supersides the constitution. you would not look to some principle of higher law to inform the interpretation. but if you are asking for where to the spirit of the document can be found, it does go back to magna carta. we claim that as much of our legal heritage as you do, lord judge. now -- and in obvious ways. the constitution did not contain a bill of rights, that's consistent with the notion we don't need a bill of rights

because the government only has such powers as we have decided to give it. now to get the constitution ratified, they needed to more or less promise we'll have a bill of rights at the end. and when you look at it, of course, it certainly has echoes of magna carta in it. so i can see people thinking of magna carta as a higher law that informed our constitution, but it wouldn't be something that we would cite to and said, we wouldn't appeal to it to get beyond the constitution as some theorists of natural law might. >> but again, i share that view. i think you need to be rather careful of whether they're jurists, judges, academics or just citizens or even just politicians claiming that there's some natural law to justify whatever it is they wish to justify. that becomes very vague, doesn't

it? your natural law, your sense of morality, mine, his, hers, can all be very different, you do need to have a very clear structure and certainty in the law, i don't think magna carta waszzqbe appealing to any highe authority, i think magna carta was just trying to bring the king down to earth, subject to the law. and the only other thing i would add is that i think it's very significant that when the first charter of virginia was -- in 1616. guess what it's title was? the great charter. magna carta and it was created by a man named edwin sands, who had been imprisoned by the king, but many how or other, he bamboozled the king into giving the rights to virginia.

that the colonists would be like any other englishman, freedom of speech and trial by jury. and thus, the first charter in the united states future united states came to be called in effect, only in english, magna carta and there's a whole lot of stories about this that can go on, and what i'm driving at is it's not a higher law issue, it's that these are the rights that you have as a colonists and it was right that the colonists in 1776 were fighting to achieve for themselves because they weren't getting them. >> thank you. we'll have two more question areas, the first one is really talking about magna carta and it's symbol, while we're celebrating the 800th anniversary.

thinking about magna carta and to the future. so like as we have mentioned quite a few times here, it's more of a symbol, it symbolizes rule of law, popular sovereignty, but if you were to think about this as a symbol, which ones or any other ones would u you prefer magna carta to stand for the next!d/ñ 800 y to move us into the future? >> my idea is rule of law. because all the others actually stem from respect for the rule of law. so that's the one that i would say is the most precious of all and the one which i hope will continue.xo >> short and sweet. >> i certainly agree with that. i mean it is the basis and when you think of magna carta as a symbol, i like to think of it as a corner stone, we celebrate thu

800th birthday as we would celebrate the laying of a corner stone for a building and what we have built on that corner stone is something we call the rule of law. which is you have to be careful not to think of it as sort of a throw away phrase. where, judge, you and i see it every day, just across the street, to be there, nine lawyers and in front of us is another lawyer, arguing a particular point, let's say, you know, when i practice, i always felt thrilled to be able to stand up and represent the united states. but when i was in private practice, it was a little more thrilling, because you knew that all you had to do was convince five other lawyers that your view is correct and the united states government, the most powerful force on earth would recede from their position.

that's what we mean by the rule of law, that what happens in the supreme court building across the street. what happens in your judicial building is a restraint of power and might, the exactly what the barrons were doing at running immedia meade, when they coerced the king into granting the charter. when we say rule of law, we nee% something very concrete and very practical and it certainly traces it's origins to magna carta. >> and may i just add, that one reason why we live in communities which are basically peaceful. of course i know that everybody has troubles from time to time, is that i believe, am i being naive? but most people respect in our countries respect the rule of law. they don't want violence in the streets. they want people who are violent to be arrested. they don't want the strong to

always win. this is practical rule of law, this is what it means that people go up and down the street, just getting on with their lives, looking at their fortunately. rule of law is not an esoteric theory, it's practical reality. >> really my question is to open it up and to say if there's one final thought that you would about. >> yes, i want to go back to where i began. a few years ago, i took to a seminar in europe, run in the hague, which is a wonderful city, it has a wonderful tradition of justice itself. every country in europe was represented. this is how we would try a case, alleging just a theft. and so in each of these courts in the great building in the hague, this went on. i went&wr over with trial by ju put on my red robes, pulled 12

members of the dutch public into the court, made them the jury and we did it at trial. and afterwards i was explaining about trial by jury and saying to them, of course, if we did have a conversation that all men with red hair must be in prison for six months, we like to think that such a statute would simply be disobeyed by a jury which would simply say not guilty even if the man's head was as red as a beacon. big joke, laughter, but afterwards, a man who had been the chief justice in belgium, a man who i respect very much said you know, that little joke you told, i said, yes. he said we don't expect to have a government that says that men with red hair must go to jail for six months. he said you're forgetting. i said what's that? he said there isn't a country

represented here which has not in this century had at least one government that was capable of making orders that led to people being locked up and in many cases killed. there isn't one here. you don't realize how fortunate you are that there's a channel between you and us. and we and you, of course, have got to be careful never to take these things for granted. the rule of law applies because you have independent judges. but in the end, it also matters that your community, our community accept that this is the way we run. that there isn't a government that says, well, the judges can say what they like, we're going to do this, the governments also respect the rule of law, that's a crucial part ofaéfp it. it's a community thing, we're all in it together. governments hate judges who make findings against them. of course they do. but nevertheless, they respect it. and that's where we're lucky.

these traditions have gone on for a very long time. and they're precious to us and precious to everybody in the street that i was talking about a few minutes ago. >> the most imposing, the most impressive, the most expansive list of rights that i have ever read, was found in the constitution of the soviet union. the words that we're talking about, whether in our bill of rights or in magna carta can be mere parchment barriers, as one of the founders put it, unless they are supported by the o;2h people. in our case, by we the people. over 800 years, the development of the rule of law or judge in your country and then in ours as well, is what under lies, it's

what gives meaning to magna carta and it's continuing influence and one reason i think the 800th celebration is so important, because it reminds us that we have the obligation to carry forward the vallu values represented in that document, so it doesn't become simply a list of meaningless rights as it was in the soviet constitution. >> very well said, so that's why we do celebrate the 800th anniversaryotz4 of magna carta. i hope you'll join me in thanking the chief justice and lord judge. i hope you'll join us, there's a small reception in the back of the room. tomorrow we open our exhibition and it will be here at the library of congress through january 9 of next year, so please come back and see us often. thank you so much. >> thank you.

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the long standing battle of supreme court activism and judicial restraint. and on sunday at 10:00 p.m., jonathan yardley who recently retired after 33 years with the washington most. and on american history tv on cspan 3, historians and authors discuss president lincoln's 1864 re-election campaign. and sunday afternoon at 4:00, on real ! 1$america, trial