sunday at 6:00 p.m. eastern on "american artifacts," we're at the library of congress to learn about omar sayeed, a muslim scholar from west africa, where he was captured, shipped to south carolina, and sold into slavery. he wrote the only known american slave narrative in arabic. the curator shows us his aunt biography and several documents in the library's collection. >> it went from hand to hand. people thought it was important enough to carry it on. there probably were others written by people who were enslaved, but this is the only known existing manuscript in arabic, written by a slave. >> watch "american artifacts" sunday at 6:00 p.m. eastern on c-span3. up next, how the u.s. supreme court compares with the british you judicial system.

the bbc hosted this discussion with a former justice of the supreme court of the united kingdom. >> welcome to washington, d.c., and the fourth bbc lecture with the former uk supreme court judge jonathan sumption. former alumny include the former first lady, jacqueline kennedy onassis. jonathan has been interrogating the complex relationship between politics and the law, suggesting that the courts have become too paf powerful. now he compares the constitutional models of the u.s. and the uk. this lecture is called "rights and the ideal constitution." please welcome the bbc 2019 lecturer, jonathan sumption.

>> good evening. when the french political writer visited the united states in the 1930s -- 1830s, forgive me -- one of the things that struck him most forcibly was the dominant place occupied by loyals in the public life of the nation. in his classic account of early american democracy, he suggested that loyals, as a class, had succeeded to the beliefs and influence of the old landed aristocracy. they shared its habits, its tastes, and above all, they shared its contempt for popular opinion. the more we reflect upon all that occurs in the united states, he wrote, the more we shall find that the lawyers as a body form the most powerful, if not the only counterpoise to the

democratic element in the constitution. there is scarcely any political question in the united states that does not ultimately revolve itself into a judicial question. there was only one other country that he could think of where the legal elite enjoyed a comparable influence over public affairs, and that country was britain. a new addition written for today would probably make the same point. the twin themes of these lectures have been the decline of politics and the rise of law to fill the void. i have argued that democracies depend for their survival on their ability to mitigate the power and impulses of electoral majorities. historically, they've done this in two ways. one is by a system of

fundamental law, standing above the elected legislature and enforced by judges. the other is representative politics, which creates a class of professional politicians with an interest in softening extremes in order to broaden their electoral appeal. representative politics is a very imperfect mechanism for achieving this, but in the long run, political constraints on the part of majorities are likely to be a great deal more effective than legal ones. why do we believe in democracy or think we do? what are the proper limits of democratic choice? what rights ought a democratic constitution ought to protect, even against the will of the people? when the british argue about these questions, as they often do, they generally look to the

united states. sometimes as an inspiration, sometimes as a warning. yet, in spite of a close similarity of political outlook, the american constitutional tradition is the polar opposite of the british one. at its most basic level, the difference is between two models of the state, a legal model and a political one. the constitution of the united states is the organizatiarchety constitution. britain has historically been the archetypal political state. in britain, as in many other countries, including the united states, we have witnessed a mounting tide of hostility to representative politics over the past three or four decades. this has naturally been accompanied by a growing interest in the legal

constitutional model, especially among the judiciary. this is, therefore, a good time to be assessing its attractions, and washington is a good place in which to do it. for the legal model raises dilemmas in a democracy of which the united states has a longer and more varied experience than any other country in the world. the prime purpose about any constitution is to provide a framework of political rules for making collective decisions. in its original form of 1787, the constitution of the united states did almost nothing else. the protection of rights came later with the ten amendments of 1791, which together constitute the bill of rights. 12 years later in 1803 came the decision of the supreme court

which established the part of the supreme court to quash acts of congress held to be unconstitutional. so by the beginning of the 19th century, the u.s. constitution had already acquired the three basic features which have come to be regarded as the hallmarks of every legal constitution. first, there is a recent code of rights, which prevails over all other law. secondly, it is proof against political amendment, except by some extraordinary procedure, such as a super majority in the legislature or a popular referendum. third, it confers on judges the power to enforce constitutional rights, to strike down any act of the state, including its legislation, which they find to be inconsistent with them. by comparison in britain, at any

rate in orthodox constitutional theory, there are no constitutional limits on the part of the british parliament. there's no fundamental law which parliament cannot alter or abrogate at will. even the treaties of the european union, which have prevailed over domestic legislation for the past 46 years, do so only by virtue of an act of parliament, which can be repealed at will, as we have seen. we are almost the only country in the world of which this is true. of course, the difference between the legal and the political models of the state has never been absolute. almost all constitutions have some elements of both. the united states has a sophisticated doctrine of the separation of powers, which reserves a large space to political judgments by the executive and the legislature. in britain, law has always had a

place in its basically political constitution. nonetheless, the conceptual difference between the legal and the political model remains a real one, which exposes two very different views about democracy. the attraction of the legal model is that it is based on a body of principle applied by judges whose perceptions are less likely to be swayed by passion, prejudice, self-interest, or real politic than those of politicians or voters. but its patronizing overtones are perfectly obvious. the legal model seeks to create a body of constitutional rights, which is beyond the reach of popular choice. its advocates do not trust elective institutions to form opinions about them with the

necessary restraint, intelligence, or moral sensibility. they, therefore, favor an accretion of power to the sort of people, namely judges, whose superior qualities and independence of public opinion are thought to produce more enlightened judgments. we the people are the opening words of the u.s. constitution, but as james madison's contributions to the federal papers show, the founding fathers regarded the people as a bigger threat to liberty than their governments. madison looked for a solution to the representative principle. he expected lawmakers to be wiser and more circumspect than their electors. for later generations, however, the representative principle has not been enough. distrust of elected majorities and fear of majoritarian tyranny has always been the driving

force behind the idea of entrenched constitutional rights. now, it is probably true that the decisions of voters and their representatives are not morally pure. they are based on a variable mixture of wisdom and folly, prejudice and understanding, of idealism, pragmatism, and self-interest. the real question is whether this impurity of motive is a good enough reason for constraining their choices by law. to answer that question, i think that we have to ask ourselves why we believe in counting votes at all. there are, surely, two main reasons. in the first place, all governmental authority, which is not based simply on force, requires some source of

legitimacy. if a political community is to have any long-term stability, then people have to have a reason for obeying laws that they do not like, other than the threat of coercion. we the people is the emotional foundation of democracy in britain as well as the united states, even if the british do not have a document that says so. the second reason why we believe in counting votes is that it reflects our sense of social and political equality. thomas jefferson wrote in one of his letters to the german scientist alexander van humboldt, that the law of the majority is the fundamental law of every society of individuals of equal rights. . the critical words in that sentence are the last ones, of equal rights.

the interests and the opinions of citizens conflict. we cannot all have our own way. what we can expect is that the decision making process will treat our various interests and opinions with equal consideration and respect. that is achieved by giving all of us an equal share in decision making, even if as individual voters are influenced on the outcome is minimal. a constitution which was not based on democratic choice but on some embedded scheme of values, such as liberalism, human rights, islamic political theology, or the dictatorship of the proletariat, would not achieve this. it would privilege those citizens who happened to agree with these values. that might not matter if the values in question were universally or almost universally accepted.

but you do not need to entrench values in the constitution if they are already universally accepted. you only need to entrench them if they're controversial and therefore liable to be discarded if people are allowed a free choice in the matter. that suggests that the essence of democracy is not moral rectitude but participation. the proper function of a constitution is to determine how we participate in the decision making processes of the state and not to determine what the outcome should be. whether voters act from good or bad motives is really not the point. we cannot make a constitution for some imaginary world in which people are without prejudices or indifferent to their own interests.

all that a political system can really aspire to do is to provide a method of decision making, which has the best chance of accommodating of accommodating disagreements between citizens as they actually are. that calls for a political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions. this is arguably a more important priority for a political community than finding the right answers to its moral dilemmas, even assuming that there are right answers or that we can finally hit on them. the problem about the legal model is that it marginalizes the political process. when a judge identifies something as a constitutional or a human or a fundamental right,

he is saying that it derives from a higher law than the ordinary decision-making processes of the state. he is declaring that its existence and extent are not to be determined by political choice. yet very many judicial decisions about fundamental rights are themselves political choices only made by a smaller and unrepresentative body of people. in an american context, perhaps the most interesting example is the due process clause of the 14th amendment. it provides, among other things, that no state shall deprive any person of liberty without due process of law. successive decisions of the u.s. supreme court have made this the furn functional equivalent of article 8 of the european convention of

human rights and fundamental freedoms, which protects private life. both provisions have been interpreted as potentially embracing any interference with the personal autonomy of individuals within limits. but within what limits? all models interfere with the personal autonomy of the individuals. that is what they're there for. if the limits to the right of liberty are to be fixed as a matter of principle by judges, then the answer must necessarily depend upon a judgment about which interferences with personal autonomy are acceptable and which are not. half a century ago, this problem was energetically debated in the u.s. supreme court in a case about contraception. the court held by a majority

that there was a constitutional right of privacy which the connecticut statute violated. but this right was nowhere mentioned in the constitution and confusion about its exact basis is obvious from the diversity of opinion among the justices. some of them thought that a right of privacy existed because it was analogous to other rights specifically mentioned in the constitution. some thought that the right was to be derived from the collective values of the people as the courts perceived them to be. one thought that it was enough to say that a right of privacy was implicit in the whole concept of liberty. the dissenters said there was no such right because the only basis on which it could be said to exist was that enough justices thought that it was a good idea. i think that the dissenters had

the point. when a judge is asked to decide a question as broad as this, the issue is not really whether the right exists but whether it ought to exist. yet that is surely a question for lawmakers, not judges. over the century and a half since it was added to the constitution, the due process clause has been the basis of some of the most liberal as well as some of the most progressive decisions of the federal courts, according to the changing outlook of judges of the day. as is well known, during the so-called lockner era of the 1830s and 1840s, the court struck down as unconstitutional some 300 pieces of employee legislation under the due process clause. they did this on the grounds

that liberty require absolute freedom of contract, subject only to limited considerations of public policy. among the laws which they struck down were state laws limiting hours of work in the interests of health, guaranteeing a right to join unions, and outlawing child labor. moving to the opposite extreme, the due process clause was also the basis of the decision in roe and wade in 1973. the supreme courts derived a right of abortion from the newly constitutional right of privacy and autonomy. the same reasoning, in a sense, they are behind the court's decision recently about same-sex marriage in 2015. in both cases, the supreme court's decisions were unnecessarily based on the perception of the justices.

this is what liberty now required, yet it seems likely that if the same issues had come for the first time before the court as it is now constituted, the result would have been different. although nothing would have been changed apart from the outlook of individual justices. one can draw two lessons from the broad range of outcomes which at different times in american history have been justified under the due process clause. one is that on politically controversial issues, the decisions of judges almost always involve a large element of political value judgment. the case for or against labor regulation is a question of economic and social policy. the case for or against abortion

is a question of liberal values. the idea in our context and how far it should go are fundamentally liberal questions. the other lesson is that judicial decisions on issues like these are not necessarily wiser or morally superior to the judgments of the legislature. much of the employee protection legislation struck down by the federal courts in the lockner era had been on the statute book in britain since the middle of the 19th century. it got there by ordinary legislation and by political action. the justification commonly put forward for treating such matters as constitutional issues is that it protects minorities against majority tyranny. but what constitutes majority tyranny? it very much depends on how you

define your majority and what you regard as tyranny. except perhaps in classic discrimination cases where the animating principal is to treat those cases alike. there are no legal standards by which these questions can be answered. the only available standards are political ones. there is also, although i perhaps hesitate to make the point here, a wider issue, namely whether it is wise to make law in this way. i recognize that partisan divisions and institutional blockages in congress have made controversial legislative change difficult to achieve in the united states. i recognize that that encourages those who look for a judicial revolution of major social issues. but the chief function for any political system is to

accommodate different sorts of interested opinion among citizens. resolving these differences p by decision creates nothing on that end. on the contrary, describing something as a constitutional right removes the issue from the arena of political debate and transfers it to judges. in the united states it does this irreversibly unless the supreme court changes its mind or overconstitution. personally, i'm in favor of a right of abortion, but i question whether it can be treated as a fundamental right. abortion was once highly controversial in britain, too. after extensive parliamentary debate, it was introduced by ordinary legislation in 1967

within five minutes. the same pattern was followed where they have now legislated for regular right of abortion. as a result, abortion is less controversial in europe than it is in the united states. i suspect, although i cannot prove it, one reason abortion remains so controversial in the united states is that it was introduced judicially, i.e., by a method which relegated the wid wider principal debates to americans. instead it is a candidate for the supreme court with results that were apparent in the indignified party and procedures

in the most recent hearings. in his first inaugural address in 1861, abraham lincoln drew attention to the implications of filling gaps in the constitution by judicial decision. his words are very well known. the candid citizen, he said, must convince that if the policy of the government on vital questions are affecting the whole of people is to be relatively fixed by decisions. they resign their government into the hands of that evident tribunal. lincoln had in mind dread scott who decided that they were not

easily made decisions. a nation cannot hope to accommodate divisions among its people unless its citizens actively participate in the process of finding political solutions to common problems. law has its own impeaching claim to legitimacy, but it is really to substitute for politics. i'm certainly not saying that no wrong nor rights should be constitutionally protected in the democracy. but i think that one lesson which a person can learn from u.s. experience is that one must be very careful about which rights when regards are so fundamental as to be behind democratic choice. i suggested in a previous series, in democracy there are only two kinds of right that are truly fundamental in that sense. there are rights to a basic measure of security for life, liberty and property without

which life is reduced to a crude contest of the exercise of force. and there are rights such as freedom of expression, assembly and disassociation about which a community cannot function as a democracy at all. these rights will certainly not be enough to prevent majority tyranny, but no code of rights will do that. the law simply has no solution to the problem of majority tyranny, even in an area of constitutional rights, like that of the united states. authoritarians have a proper legal basis for everything they do, but law can supply the basic level of security on which civilized existence depends. law can protect minorities identified by some personal characteristics such as gender, race or sexual orientation from

discrimination. but the courts cannot carry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves. the only effective constraints on the abuse of democratic power are political. they depend on active citizenship on a culture of sensitivity and on the capacity of representative institutions to perform their traditional row of accommodating division and immediating dissent. if that no longer happens in the united states or some areas of britain, it's because our political culture has lost the capacity to identify common premises, common bonds and common priorities which stand above our differences. this is a serious problem in any

democracy, but there is nothing the law can do about it. in an essay written in 1942, the great american judge learned at hand confessed that he could not predict whether the spirits of he can with equity and fairness animated the constitution would survive without judges to enforce them. but he added these words. this much, he said, i do know, that the spirit of moderation is gone. it's a society where it flourishes, no court need save. but a society which evades its responsibilities by thrusting on the courts the nature of that spirit, that spirit will, in the end, perish. the ultimate expression of claims of law to set limits on

political action is a written constitution. in the next and final lecture in this series, i shall look at cause to introduce one in the united kingdom and at what such a constitution might say. thank you. [ applause ] >> so we had a slight technical hitch at the beginning, so if you don't mind just doing your first couple of lines and we could come off with applause again. just clean from the start, okay? just wait until i get my clipsy-clopsy heels out of the way. just start wherever. >> when the french political writer visited the united states in the 1830s, one of the things

that struck him most forcibly was the dominant place occupied by loyals in the public life of the nation. >> jonathan, thank you very much, indeed. once again, join us. [ applause ] >> have a seen, jonathan. while they're adjusting the microphones for us, can i just remind you, if you'd like to ask a question, put your hand clearly up and make sure i get a microphone to you before you ask. just say your name and what organization you might be representing. i can see the hands. if we can have a microphone to the gentleman there in the front row right where you are. no, no, if we start here. sorry. the gentleman there and then we'll come back, and if we can get a microphone while we're waiting to the lady up there, let's start with you, sir. sorry, hello, this gentleman -- angela. angela. here. thank you. >> how are you doing?

i'm matt laro sirsier. i'm with the cato institute. that was a wonderful lecture. i really appreciate it except for the ways you fundamentally misstate american constitutional law by glazing over the question whether or not the government has the power to act in the first place. my question for you is can we really compare two systems, one in which the people view a right as something that is completely without the scope of government and one in which a right is viewed by something granted by government. if so, how is a right in that european system any different from a privilege if it can be revoked as well? >> i'm not sure i understand the whole of that question, but first of all, i entirely agree with you that a prime function of the courts, and i think i recognize this in my lecture, is to ensure that governments have power to do whatever they seek to do. that's certainly a common factor

as between the united states and great britain. what i'm interested in is the role of the courts in inhibiting or imposing policy choices which is, i think, a different question altogether. can you remind me of the second half of your question? >> is there a principal distinction between a privilege in a system where rights come through government and are granted by government that are right? if a government can take it away, what's the difference with a privilege? >> i'm not aware a government in the united states or in the united kingdom has the constitutional power to confer rights on messages exhibiting a statutory power to do so.

i'm not entirely sure how the problem arises. you're obviously right in saying that if the government had the power either to confirm or to take away rights on its own initiative, i.e., without a specific statutory power, it wouldn't differ from a privilege at all. >> can i ask a supplementalary question to that? is it not the case of old world arrogance that you will come over here and tell these good people, when the majority of countries in the world right now have written constitutions, that we do it better not just because we did it first, but we do it better because we haven't written it down. >> i haven't said we do it better. we obviously start from completely different points of view. in the united states, a written constitution on the legal model has nearly a quarter of a millennium of history. so that is where you start, and

i'm not for one moment suggesting that that is something that you should dispose of or modify. it's 240 years too late for that. but in the united kingdom, we start from a tradition in which our constitution is essentially political. it differs from almost every other country in the world in that respect. but we are where we are and it is relevant when you look -- when you try to answer the question, ought the united kingdom to move closer to a legal model, then it seems sensible to me that one should look at the experience, preeminently that of the united states, for managing such a model. the united states constitution experience has demonstrated that there are dilemmas when you try to have both a democratic model and a legal one. that is something from which the

united kingdom ought to learn. so far from arrogantly criticizing the american experience, i would like to know what works in the united states, why it works and whether we could expect it to work and be entirely different political constitution environment of my country. >> but you do believe in your country and my country, we are more flexible because we have an unwritten -- is that true or not true, that you believe we have more flexibility because we have an unwritten constitution. >> i believe we have a great deal of flexibility. i don't want to suggest that the united states lacks that degree of flexibility. you only have to look at some of the major supreme court decisions in order to see the way in which differing sdpark sdparkts -- markets have

differed. an example is the board of education that abandoned the separate but free doctrine in education, thereby ruling on a supreme court decision 60 years earlier. it did that because values had changed and perception of the facts had changed, although the facts were it was never equal, even on the earlier occasion. >> let's take another question. there is a lady here with a microphone. yes. >> that is very much the assumption. i'd like to ask the question with regard to your comments about democracy directly, particularly looking at those who don't acknowledge that in '38 hitler was actually elected democratically by the german people where the german public voted. going back to the chilean.

i'm trusting that with the u.s. system, what do you think about the difference of a democratic parliamentary system, and do you think that is superior in terms of juxtaposing the u.s. system? >> i think this question is serious, and i very strongly -- in fact, i personally accept that direct democracy has serious problems, problems that were anticipated notably by madison but in fact by many of the early constitution rights in the united states. i'm a strong believer in representative democracy, precisely because i think that representatives are in a position to take a broader view about the long-term interests of a nation than a snapshot

produced by each year referendum could ever do. if the implication of your question was that i was a believer in some way of direct democracy, i'm not. i think that the advantage of the representative system is that it is a better method over a broader range of politics of constraining the impulses and the self-interest of majorities. it often fails but it's better than any possible alternative, which is an echo, i think, of your quote from winston churchill. i wasn't sure whether you were asking a separate question about the relevance of female heads of state. were you? >> yes, because you say it couldn't happen in the u.s., at least historically. do you think that's because of

the parliamentary systems? >> well, i think that if you -- i don't agree with the suggestion that it could only happen in a parliamentary system. the direct election or head of state can be more polarizing and it can produce outsiders which can be an advantage or a disadvantage without dwelling on personalities. i can readily think of two countries whose head of state was recently elected who was a complete outsider to the political field, and the results in each case have been totally different. it depends on many factors of the method of choosing your head of state. i do not accept the implication of your question that if you directly elect your head of state, it's never going to be a woman. i think you may be right in saying it might take a little

longer, but i don't think it's going to take much longer. >> let's take a question from this side and then who else would like a question on this side? the gentleman right in the front if we can get a microphone to him. >> tim campbell, i'm an attorney at the department of veterans affairs. i just wonder what you would say to toqueville, because toqueville is also famous here in the united states to see that politic questions are political questions. >> the top field, like all political analysts occasionally exaggerate it to achieve impact, but there is a basic truth in what he had to say. it is an astonishing work to have been written in the 1830s,

part prophecy. he was looking at the statute different from modern american society, but he was talking about the implications of a constitutional system, which in a sense or respect, is still there. >> did you want to come back? >> no. >> let's go to the question here in the front. >> i'm reverend graylon scott hagra. what i'm intrigued by is total absence of any kind of racial analysis when it comes to the interpretation of the usage of constitution and law in the united states, because it is basically the constitution and the language that was put in the the -- there, embedded in there. that gave black folks the opportunity to hope that those words would be interpreted in a way that would lead toward their emancipation. attitudes got changed, but the reality if we waited for

attitudes to change, it would never, ever happen, which was our process of almost 400 years of slavery in this country. in a sense, it was the words and constitution in a sense that was the battleground to get people in brown versus education, even though it failed, but it kept coming up because it was a constitution that guaranteed some rights. what is your perspective on that analysis? >> emancipation wasn't achieved by the original constitution, and indeed, it wasn't achieved in a real sense by the constitution at any stage, it was achieved by a bloody 7-year civil war. the results of that civil war were subsequently em bowlbodied the amendments of the constitution which immediately followed it. i think it is clearly right that the original constitution was --

effectively it did not deal with slavery, it was ambiguous on the subject, and that was because it was a subject in which the founding fathers would probably never have been able to agree. and that was a missed opportunity at a time when slaves were beginning to beie manslaught -- be emancipated in a civilized world. >> the emancipation was a battleground fought out in the civil war but also fought out in the legislature. but the real situation is what follows is jim crow in this country, and it was basically jim crow got taken down by -- critics of jim crow got taken down by basically the challenge of the law that forced legislative bodies to have to deal with things like segregation and had to deal with

things like public accommodations. that basically was the battleground in which we fought as well as in the street. >> that battle was one politically. i agree that the supreme courts contributed something to it rather late in brown versus board of education in particular. but essentially, as i read the situation historically, correct me if i'm wrong, the legislation of the 1960s and subsequently was what really produced that change. that seems to me to be the way that it ought to work, except in one sense, i think that most people would feel that in an advanced country like the united states, it ought to have been achieved very much earlier and that the implications of the issues in the later stage at which the civil war was fought

had much more influence on the judiciary than it did in the late 19th century and not in the middle of the 20th. >> a question from the lady next to you. can we get her a microphone? >> my name is susan abowahoya. i'm a writer from philadelphia. i want to just bounce off of the previous question. israel has a system that is, i guess, similar to the u.k. they don't have a constitution. and the laws are very much created by political will. and what you have is essentially an apartheid state with multi-tiers of laws that are applied to people based on ethnicity and religion. and the indigenous population cannot even mount a movement that could legally challenge that because there is no

constitution in israel. whereas in the united states, that kind of civil rights and social justice movement was launched. the infrastructure that allowed that to be launched was the legal infrastructure of the constitution that, quote, all men are created equal. >> well, i think in part my answer to that was given in answer to the previous question. i think that the assumption that men are equal is stated in the constitution but is implicit in just about every constitution i can think of, including unwritten ones like ours. the case of israel which you raise is interesting. it is true that israel has no

written constitution, although in the course of the 1990s, its supreme court did create a form of entrenched rights, which were previously being thought impossible. i agree that the way that the israeli state works marginalizes the 10% or so which is elected from arab constituencieconstitu. the reason that marginalizes 10% is that there is an unspoken convention among all non-arab periods of time that they will not that represent the arab and left with a minority. that doesn't seem to me to be a constitutional problem, it's a written problem.

it's not a problem which is due to the israeli constitution or the israeli lack of a written constitution. any constitution that i can think of would have been effect toif stop mamt. i think you will forget. i think it's the a sorcery that will turn out to be deeply damaging to the long-term future of israel. but i don't think that i agree your diagnosis that this is due to the absence of a written constitution. >> there are a lot of questions coming from the middle. if i could get the microphone. just the person in pink has been waiting very patiently, and the lady over there, if you could -- yes, in the green jacket, i think.

thank you. >> hi, my name is brian chung, i'm a graduate of both this university and queens college oxford. my question is about popular minorities, particularly in which many. i'm both hearing them in the u.s. and the u.k. we're hearing they want to come to power over asylum speakers. my question is, how would your approximate popular minorities. some of these people you have to acknowledge that laws will protect some people and protect characteristics. but there are other people who

not all can be protected. >> thank you very much for your question. >> as i understand it, the united states constitution does not permit the executive to operate a system for admitting migrants which is on biased or racial grounds. certainly that is the principle in the united kingdom, and i'm pretty sure, all european countries. all countries have a -- an immigration policy of some kind. and it seems to me likely that in any democratic country, there will be laws which restrict the rights to migrate into that country. i don't regard that as inherently objectionable. i would certainly regard it as inherently objectionable if

these laws operated by discriminating between some races or religions than others, but i'm not sure i would accept that migrants can be regarded as a minority in the sense in which you mean. >> which system looks after minorities better, a written constitution or an unwritten constitution? >> i don't really think there is any difference in that respect. the -- it would be possible for the united kingdom to have laws which didn't discriminate against migrants from some races. it would not be possible in the united states. so to that extent, clearly the american system has a more durable -- >> it sounds more robust. >> -- a more durable protection.

however, there are many things in any constitutional policy, which one might want to prevent but are already effective politically, so i think our system does politically protect minorities from ethnic or religious discrimination. >> we've got a question from the lady over there. hello. i'm vera and i come from the other georgia across the ocean. my question is, what do you think brexit -- >> i'm not hearing you. >> i think you're not hearing. where does brexit stand here because of this political system that the u.k. has trying to be different from other eu countries, or do you think it is

the reaction of the decline of politics? >> i'm not sure i think either is true. i think brexit is the result partly zrp it is not fwilt the europe were there is a romantic view of the british past, which in some respects is very different of the past other european countries in that after the second world war, every european country had been invaded and had had its existing political system effectively destroyed, either in the course of the war itself or in the course of the nazi conquested which preceded it. the fact that this didn't happen

in britain has given very many british people a feeling that they can operate independently from social and economic movements which exist across europe and indeed, in some cases, across it is world. i personally think that this is an illusion. but historically, i think that is the explanation. i do not think this has anything to do with whether our constitution will accept in some respect, which is we adopted our decision making a referendum on a particular issue, which i think the constitution was completely misguided. i think it was misguided because it was a method of circumventing the ordinary political process. as i explained in summarizing a point that i've made in earlier lectures at the beginning of this one, i think that the

political process, because politicians seek to appeal to the widest range of opinion, the political process has a very good chance of softening the impulses of democratic majorities, essentially because politicians have to think about the opinions of people other than themselves. the problem about a referendum is that it invites people to make decisions on the basis of nothing, other than our own interesti interesting. the result is to create a situation in which 52% of the population consider themselves to be speaking for the entirety of the united kingdom and 48% it didn't matter at all, if you believe as i do that's the frim functi

-- prime function of any constitution which has the ability to consent disagreement within a citizen body. that is the state of affairs that you're likely to regard as i do as completely unacceptable. >> if the brexit situation is a stress test showing the cracks in our system, or the creaks, certainly, what does the current ta tango between president trump and mueller and all the things that go with it? tell us about the american system right now. >> well, i don't think that's got anything to do with brexit or any of the underlying problems -- >> no, no, of course not, but i'm saying if you've got brexit as a stress test for our system and this is a stress test for their system, what is it revealing to you? >> brexit is a much more severe test for our system than that particular dispute is for your system. as i understand it, the present position is that without

contempt proceedings being brought by the department of justice against its own head, the house of representatives' subpoena can effectively not be enforced. i don't know if the courts have any power they are likely to exercise in support of a subpoena in the absence of proceedings at the department of justice. >> you said he took a very prominent role, so you know a thing or two about redacted documents and the power that they have. right now we are in a situation where the president has given an executive order and they cannot see redacted documents that some people have already seen. tell me your response to that.

>> as i understand it, legally, there are limited ways in which, under the u.s. constitution, that can be dealt with. i'd be delighted to be told that that is wrong. but if you ask my view politically, is it sensible in the sophisticated society for the president to be allowed to say i've been entirely exonerated than not to disclose the documents he claims to have been exonerated? no, i do not think that is a sensible way to run your affairs. >> can ythere is a hand right hn the front. >> carl lockhart, graduated university of virginia school of law. you don't seem to be a big fan of judges or the majority.

you seem to see a tyranny of majorities working. i want to see what your thoughts are. one is the role of elected judges which takes place in many states, and the second is a role of federalism which we have here which didn't get touched on, and the deceleration of power and how that allows for majorities at smaller levels to make decisions for localities rather than a marginal majority marginalizing 40% of the population, as in the case of brexit. >> well, we don't have elected judges in the united kingdom, and i'm not aware of any other country which does have them. personally, i find the idea of people standing for a lecture on the basis of their own program would be, very unsatisfying. your point about federalism.

yes, federalism does have the advantage that it enables smaller units to make decisions and, therefore, it emits a greater variety. it made no difference is the one that you mentioned, namely brexit. it would not be possible for different parts of the united kingdom to have different treaties for countries like europe many. >> you are object yuls right to say and some aspects of federalism chld. they are sport in the particle ments but they have very krnl

recalled. this is for northern ireland. >> i'm not sure we came across the pond to escape brexit, but if there are any non-brexit questions, we would be very happy to take them. if we get that one from the front and we get a microphone, there is a gentleman over there who has been very patiently waiting. i know the gentleman in front, i'll come to you as well. ly. >> there you go. so you're second. >> mark from washington, d.c. i wanted to probe on the level of judges. you made a due process decision that american justices, judges, sometimes are arrogant power.

and i was just wondering if you think that judges in your can r r are less powerful. don't they have large results in the population, and in that case, what really is the difference between a written and an unwritten constitution if judges, who must be the arbiters, r power of concentration. mark meadish, a lawyer in the u.k., has that power in the united states. but the basic theoretical

framework is the same. moreover, judges in the united kingdom have the same appetite for developing rights as many judges do in the united states. that is something which i think is relatively recent. it's not recent in the states, it is recent in the united kingd kingdom. that is, i think, undesirable. the difference between our systems is what the supreme court decides to me as a constitutional right is thereafter written in stone unless the supreme court itself modifies its views subsequently or, unusually, there is a constitutional amendment. whereas in the united kingdom, there are no entrenched md.

if necessary birks a single vote. >> i'm jim feldman, i'm an attorney and you emphasize from the right of what is most effective in a democratic system. so one important strand of american constitutionalism is the part that protects the democracy itself, and i'm thinking in particular of the one person-one vote strand and other decisions as well that have protected the democracy itself where -- and allowed us to have a democratic system in the fimps. and i realize that they have come at this in a different way, but it seems like an important and effective way that a constitutional system should have. >> i agree with you.

in the lecture i just gave, i said i thought there were two categories of rights, which, in any system, should bear fwod, but one is the group of rights which effectively protects you frrl if. the body of rights, like freedom of association, one person, one vote and so on, which are essential for the survival of any democratic system. now, it is perfectly true, that in the way that the constitution can be judged, it would be theoretically possible for the legislature to abolish elections or provide that certainty where

we should have two votes. that would be theoretically possible. but you have to ask yourself, what's the most -- what are the various effective ways given one's history and one's own traditions of dealing with this? to my mind, a political system governed by powerful inventions, it has proved historically to be a highly effective method for preventing that from happening. i cannot see it happening in the u.k. an earlier question is that it did, of course, happen in germany in the 1930s. the problem is if you reach a stage where your society is so fragmented that you cannot rely on political conventions to avoid that kind of misfortune, then you're sunk, anyway. that is the real problem. when city -- and it is the point

of the quotation i gave at the end of my lecture. when a society has reached that stage, it is effectively in the hands of violent people, anyway. that was precisely the position in germany in the 1930s. >> can i see a show of hands, put them high in the air because the light is making it difficult to see. there is a gentleman that's been waiting a long, long time and a gentleman there. we are in the land where the vast majority of people here, i'm sure, would have been transfixed by the kavanaugh hearings, where a man who sought a place on the supreme court, as you have had a place on the supreme court in our own country, had to go through some very rigorous, often difficult, often vociferous ways of things

being done. >> what it means is it's not simp simply because of confirmation hearings, it's the subject of confirmation, the president has a power of appointment. the accommodation of in a necessarily political body has had the effects i'm not in a position to comment on question, whether that has any question. >> asking a man who would seek to stand in judgment of his peers, just exposing isms, are

there any sexisms, racisms. just stand in front of in you'd like, on its own. >> i do not think that judges should be appointed on the basis that they can be expected to decide cases in a particular way. in fact, most confirmation hearings in the united states have turned into essentially political disputes as challenges arise from the party which is opposed to that of the president. for many years before cavnada's

hearings, i would have to listen to all the arguments, and i'm not going to prejudge them. that is absolutely a right of any judge to give. what it means, especially robert bore never thought of that when he had his highly contentious hearings three decades, four decades earlier. but what it means that because you don't actually get out of these confirmation hearings an idea of how a judge would decide particular cases or particular kinds of case, and you shouldn't, actually, seek such an idea from him, all that is left is some assessment of his

place. that is why you have a higher judiciary in the united states, and i would regard it as very unfortunate if we had that in the united kingdom. >> is there anyone who wants to stand by the position of scrutiny that you have? >> yes. >> i'm tyler, i'm a sophomore here at the george washington university. in your lecture you mentioned the political value judgments that justices sometimes have to make. was there ever a time when the courts weren't considered in the constitutions. it seems like you're your kavanaugh case.

>> i don't think it gets up, in a remember. >> the kind which are, frankly, impossible to decide without reference to as, which is one reason i don't think thet. we had the referendum on brexit, to get back to brexit. the supreme court had to decide whether the government had power to give notice to leave the european union without parliamentary authority. the government did not pose to seek parliamentary authority, and we held they did not have

that power. before the argument, there was a huge amount of speculation in the press in which the initial,e expectations about how judges would decide this particular question. we're canvassed. people had different theories, x is likely to think this, y is likely to think that. i think it is highly satisfying that every single one of these predictions was wrong. those who were thought likely to support the government's position in fact, dissented. and vice-versa. now, what that suggests is that the court actually set about deciding what the law was, and was not particularly influenced by the opinions that the judges had about whether brexit was a good thing or whether it was something that they would have supported. so i don't think that there is

any overt politicization. i would have said on the basis of the seven years in which i sat in our supreme court, naturally, you start out when you get the papers in a case by trying to say, well, i know who i'm sitting with, we sit in panels and not en banc, and how is this likely to pan out? i would say i was right less than half the time. although i reckoned to know my colleagues pretty well. in the united states supreme court, i think that even an outsider like me would probably have a strike rate approaching 80 or 90% if you tried to predict how a particular contentious issues would be decided by particular justices. personally, i think that is unfortunate. >> thank you. and your final question. >> oh, okay, thank you. i want so badly to ask about brexit but i will try to avoid. it my name is michael fantuzo,

here at george washington law school and i did want to ask you a bit, press you a bit about the idea of your skepticism of direct democracy. i know you're a member of the house of lords. >> i'm not in fact. >> you were, a member, you were a lord? >> i have a title but i am not a legislator. i am not a member of the house of lords. >> okay, good, thank you for setting me straight. i did want to ask though, there does seem to be a narrative that is coming out among certain sort of elite circles perhaps lords, perhaps others, that direct democracy, if you look at the example in our country, we have trump, but the idea that that would disprove democracy, where as if we had a direct democracy, trump got fewer votes and because we are had the electoral college, and indeed, during the primaries, super delegates and party managers prevented bernie sanders from being elected, or from being chosen as the nominee, so i'm just wondering, you know, in terms of when elites make mistakes, it seems

that while we say that that's still the best system, versus if democratic majorities make mistakes, we say that's proof that direct democracy doesn't work. and at least with a direct democracy, there would be a consent of the governed as opposed to when you have an elite rule. >> well, i think that there are failures and problems associated with both models. but i think what you have to remember is that democracy, whether direct or indirect, is not only a mechanism for decision making, it's a method of decision making which seeks to accommodate divergent interests and opinions. and indirect democracy is much more likely to achieve that than direct democracy. that's, to my mind, is the main justification for it. my view about this is exactly

the same as that of james madison in his contributions to the federalist papers, which i think are among the most carefully thought out and profound reflections on the role of different model of democracy that i know of. and i think that what madison said back in the 1780s has proved extraordinarily prescient, not as just applied to american politics but applies to politics generally in other countries too. >> and the subject of the next lecture coming up. that is all we have time for. my thanks to all of you here at george washington university, to you who are listening at home, and most especially to jonathan sumtion, thank you very much indeed. [ applause ] to the city of milwaukee,

harley-davidson really is i think more than just a motorcycle company. in a lot of ways, harley-davidson really captures that arrival of milwaukee, as one of those cities where great american machines are built and made. >> the word iconic is sometimes overused, but miller is certainly an iconic company in milwaukee's history and in milwaukee's present. it is a tangible expression of an ethnic and economic legacy that was really important here and remains important to the present. >> c-span cities tour is on the road. exploring the american story. this weekend, we take you to milwaukee, wisconsin, with the help of our spectrum cable partners. located on the shores of lake michigan, this city has one of the highest concentrations of german ancestry in the country. it was also here that america's socialist movement got its start. >> milwaukee in the late 19th century was becoming the machine shop of the world. and so you had this huge pool of

largely immigrant workers who were very receptive to a message that promised to benefit the working class. >> and we will visit america's black holocaust museum, to learn about james cameron, a survivor of an attempted lynching. >> the reason that the story was so important and the reason he wanted it published was because he realized that lynching was such an important part of american history, and a part of american history that is never taught in schools so he wanted people to be able to get an eyewitness account of a survivor of a lynching to see exactly what the dynamics of a lynching were. >> watch c-span cities tour of milwaukee, wisconsin, this saturday at 5:00 p.m. eastern, on c-span 2's book tv. and sunday at 2:00 p.m., on american history tv, on c-span 3. working with our cable affiliates as we explore the