those who train them, who say they are willing to hear. that is the problem i see is very important. i will give you a little taste -- just a little bit more topical and interesting -- of where this can come up. it is a very interesting legal question in very difficult. it is so technical and so hard that people do not write much about it. it was hard for me to learn about. if they had paid more attention to what went on in other countries, my job might have been a little easier. unfortunately, it arises in a very emotional context which has to do with the death penalty. that was the context of the issue. the issue is the same as exists

where it has nothing to do with the death penalty. it has to do with commercial law, copyright, intellectual property, inheritance -- this is the problem. in article virgin islands of the constitution -- article vi of the constitution, it says, "the constitution and laws of the united states pursuant to the constitution and all treaties made or which should be made under the authority of the united states, all treaties made under the authority of the united states shall be the supreme law of the land, and the judges in every state shall be bound thereby." anything in the constitution or any loss notwithstanding -- in the laws -- and any laws

notwithstanding. what does that mean? why not interpret it literally? why not interpret it literally? it never has been interprete y. most students of foreign affairs know the question of whether a provision of a treaty ought to mad -- automatically becomes the law of the united states. what is its internal defect. if we sign a treaty on trade, or the interpretation of the treaty that required police to tell an arrested person from a different country that he had a right to counseled, and individuals were sentenced to death and were not told of that right to consult with the nation's council -- texas says it does not make a difference because it did not really hurt.

mexico brought a case in the international court were this said you have to have an open hearing. you signed a treaty and the treaty said he would do it. you did not do it. the remedy is that we interpret the meaning that you have to give them a hearing to find out of it really made a difference. here is another treaty signed. in that treaty, you promised to do what we said -- interpreting the first treaty. do you see why it is a general question? does that treaty, which said we would listen to them, mean we have to listen to them? is that treaty automatically part of all of the united states? or is it the case that no treaty is all of the united states unless congress passes the statute -- is that law of the united states unless congress passes the statute saying so? law requires both houses to act.

this is different of the world. england, you have to get parliament to pass a special law. the treaty does not bind unless they do. the man who signed the treaty or got the queen to sign it also has the majority in parliament, so it is not such a tough thing. do remember jack kennedy saying this? it was a slight deviation, but it is relevant. he said that jack kennedy and harold macmillan were in bermuda discussing the blue streak missile. after their discussion, they were talking about the budget. president kennedy was describing to the prime minister how he was going to work with congress to get it through and he hoped that

certain parts would. how do you get your budget through? he said, get our budget through? we have a majority. what determined in the cabinet what the budget will be and they passed it -- we determine in the cabinet what the budget will be and they pass it. kennedy sayd, " -- kennedy said, "what? anyone could run a country like that." other countries have different systems. i got my law clerks to go through every case decided by the supreme court, and there were a lot. i read quite a few of them. you go back to john marshall and you discover -- you look at the provision in the treaty that you're talking about.

if that treaty provision is something that concerns courts, it is the kind of thing that judges could administer. which property goes where? then, you do not need a separate law. it is called self-executing. it is something that john marshall says is addressed to the political branches, such as war and peace, making peace, taking the marines out of nicaragua -- that is addressed to the political branches. it is not self-executing. it is up to the political branch. i did a lot of work on that. i proust -- perused the appendices. i thought that should be the rule.

the minister comes home from sunday and says to his wife, i preached a great sermon. she says, really? he said, it was fabulous. she asks what it was about. he said it was about how the rich should give to the poor. she said, oh, really? was a convincing? he said, it convinced the po or. [laughter] the point is that i did not get a majority. i was in dissent. few academics had written about this. i was at a meeting where someone from the -- i think he was the justice minister of the netherlands. we were talking about these cases. i said something just along the lines of what i said. that is what we've done for years, they said. it is like for the book at law

in the netherlands -- foreign book law in the netherlands. the guy from france said the same thing. at least it would have saved some time. that is an important issue. why? i think it is very important because we have all kinds of trees. there are vast numbers of multinational -- all kinds of trees. there are direct -- there are vast -- i think it is very important because we of all kinds of treaties. there are vast numbers a multinational treaties. they are changed from time to time. if, every time you change such a treaty, you have to run the congress and get a special law

past, it is really going to be harder to get treaties enacted. congress could pass a general statute that set up general criteria -- general criteria. in the absence of that, we have an obstacle. it is an obstacle i suspect it's into my main theme. it would have been easier to overcome if there had been more people interested in this, more academics, more international groups, so that the material would have been laid out there and made obvious. you see what the theme in is. the theme is simply this -- there is a lot of work for us professionals to do. as you get involved in the great debate about whether or not we should refer to some countries constitutional decision -- it is interesting, but it is not the

heart of the matter. for a metaphor, i would -- and emotional difference to me was when sandra o'connor and i were in india to visit their court on the day of 9/11. we were there and we met there chief justice that afternoon. they were so nice. they were incredibly sympathetic. teh bar -- the bar, bench, and others. the real division in the world is not among people from different nations. it is between those who accept the force of reason and what i quoing all the other virtues -- i coined all the other virtues, and those who do not.

what are we working towards? as i see it, i used to have in latin class bees busy in their fields. when there is a terrible disaster like 9/11, bay are out there for paring -- today are out there repairing -- they are out there repairing. it made an impression on me when i was at an international meeting to celebrate the 200th anniversary of the french civil code. i was with our delegates. everybody got up and praised the french civil code, which i am sure deserved praise. afterwards, they said we will have some questions. these are what interested me. a man got up and said, we have been working for the last 20

years to make certain that women were treated equally by the symbol law. why is it, in today's, there was not one woman speaking? -- in two days, there was not one woman speaking? how does their law relate to this? do we need a new french civil code? do we need a european civil code? do we need a code that integrates all the two? the third question -- how do we teach these values that i mentioned -- democracy, freedom, prosperity, conversation and discussion, etc. -- these values that are embedded in the civil code. how do we teach them to our children, our grandchildren?

how do we pass them on? the fourth question -- where am i? am i in paris or new york or des moines or san francisco? if you think about those questions, i could have gotten them in any cindy -- a city in this country. same problems, same areas of response. we are the professionals. i learned something from senator kennedy. it made an emotional compression. -- impression. we all met at any event and he told me something his father said. when he was young he said, what you do, what you do is you get people around you who have different talents, different

abilities, not necessarily yours, and you get them working together, and they help. that is its. to do they help? they help each other. they help you -- who do they help? they help each other and they help you. it seems to me that is where we are. we are the professionals. it is our job to get together and help. [applause] >> i told you that he was renowned as a teacher. i rest that point. we're going to be treated to a question and answer. we dec

same to you. >> the first will be from our professor of international law. he is the professor of international law and diplomacy and director of international law. >> and bat was fantastic. let me make one statement. clearly, you can say something about regionalism. if you look back, there was less positive legal authority in this country. you would find that the law of nature and nations was less positive. you could say the more our original list -- the more originalist you are, the more

nationalist you could be. they do it differently elsewhere. that put forward value questions about whether there is an abstract methodology. in europe, in the civil law systems, the right of appeal requires review and revision of the facts. the present of the jury -- the position of the jury appeared in the international criminal courts, you cannot judge guilty verdict found for the first time on appeal. -- you can have a of a guilty verdict found for the first time on appeal. -- you can have a guilty verdict found for the first time on appeal. you can have people detained pre-charge, not pre-trial, for very long periods of time. in spain, they detain pre-

charge. some of the libertarian bias of the common law, in favor of juries and immediate disputes, it is something that may be more unique in political culture then one might suppose -- than one might suppose. on comparative constitutional law, you have to be careful of whose examples you pick. >> yes. [laughter] of course you have to be careful. you have to use it in the correct way. it is not all that often that i have used them. the kind of things i have used before -- you have to be fair when you use it. that is a frequent criticism. it is like looking over the

cocktail party and looking for your friends. that is not the way to look for help in all law. -- in the law. you have to be fair -- for the things against and for you. a good judge looks for both sides and looks for evidence both ways. where i found it somewhat useful, for example, is that we had a rather difficult case about whether a person can get asylum if he has killed another person in that other country, say somalia. his reason, though, is that they were threatening to kill his own child if he did not do it. a horrible situation. he says he is under arrest -- duress. he should still be eligible for asylum, even though he committed

a terrible crime. do you get the point? is there a defense or is there not a defense of the arrest -- the rest -- doris -- duress? if you found mixed answers, they are not helpful. if you found them all the other way, they cut the other way. or, for example, we had an opinion which says that if congress says that a state sheriff's office must gather information about gun buyers adn nd send it to the fbi, question

-- does congress have the power in our federal system just to order a state official like that share a to do that? to do something congress wants him to do? that was the question. i thought it was helpful to point out there are some -- not determinative, but helpful -- to point out that there are some systems called federal in the world that believe they are federal, even more federal ban we -- than we. the eu. switzerland. where the federal government repealed -- relies on state officials to carry out federal law. my argument being -- do not tell a state official what to do is not so fundamental to federalism as you think. was it a fabulous argument?

no. it was worth a mention. we have a case in the eu involving campaign finance and whether or not been violated a person's freedom of expression. it was in the strasbourg court. i read that case and i thought it did not support it. it was interesting and i refer to it because i wanted to explain why it did not. it requires what the judges have been paid to do -- to exercise their judgment and try to work out what the answer to difficult questions is, and then try to explain those answers. what is actually moving the judge? you are absolutely right that it has to be done with considerable care. i do not know a set of rules about how to do it. sometimes, you will find things that are relevant to a

particular question and i think we should use and mention them. people can think about it. >> thank you. the second question will come from another professor and director of our international development program. >> thank you. that was our real tour de force -- a real tour de force. i have been put on the spot because she could not find another professor. i am in this book -- a position as a political scientist. it is a little variant of what ruth asked. if you unpacked the appeal to critic that -- before copenhagen, shawn kennedy -0-

hannity and beck were saying we're going to go to copenhagen and give away american sovereignty. if you unpack what that means -- john bolton could make this argument quite cogently -- it is not an abstract defense of sovereignty. isn't abstract defense of democracy. -- it is an abstract defense of democracy. that is the real sovereign. by referring to international law, your important rules made by potentially non legitimate -- you are importing rules made by potentially non-legitimate bodies. it may not respond to democratic accountability. i think that is really the concern that underlies that critique. in your talk, you mentioned that

when you prefer to international law, you say there are a lot of other countries that are democracy's that may have similar problems. for you, is that actually an important criteria in what you are willing to import in terms of international practice and other international precedent? >> well -- >> it is on all the time. >> is it on? yeah. that is why i wanted to give my two classes of example. as you see, the second class, the important class, is not something i have a choice about. it is somebody else who decided to give this power to the wto or to this organization over there. it was not me. i have to figure out how to see what its application is. the matter you discussed, if we

ever have a question, which we have not, about the constitutionality of this, would undoubtedly come up as a factor. when i am deciding -- you also see what i am referring to and what not. i am trying to be relevant. there are only some of the things that are relevant. i cannot give you a general answer. sometimes it might be, sometimes it might not be. the bill that it triggers is this. -- bell that it triggers is this. think of the issue -- it is a political issue -- think of the question of whether the united states should join the international criminal court. a lot of europeans do not understand how anybody could be against that. i say, it might be a good thing to do. when you want to understand why it produces the quarter -- cord you rang, i think this is the

reason. madison, many years ago, when describing the constitution says the following -- he said, this is a document that -- this is a system, a tribute was his word -- a tribute that -- liberty grants authority -- grants power. you probably know thequote. -- the quote. it is not power granting liberty. what he means is that, in european countries, at that time, power flowed from the monarchy. the divine right of kings -- and there is where the power was.

those people who workings -- were kings and later the parliament that seceded them, might decide to grant liberty to the people. but the decision was made by the center to give the people the freedom. in the united states, it was the opposite. the central government had no power. it was the people that have the freedom and decided to give the power to the central government. what can really does that mean? -- concretely, what does that really mean? we all have a suspicion -- everyone does, no matter how great a modern, new dealer he is -- everyone says i am a little bit nervous of granting too much power to that center. how much is too much? there is always a democratic czecheck.

there is a democratic check on me, not after i am nominated. [laughter] unless i behave badly. that confirmation and nomination process is up chance for the public to express itself on how they feel about a particular individual going into a job where, by necessity, by the nature of the job, they cannot influence him through their vote as individuals. and of course they should not, because his job is to protect people who are very unpopular. now we think about those european judges. who are they? we have no say whatsoever. that does not bother you. in denmark, because you think judging and law is something that comes from the center, but it bothers us, because we think

even judges have to have some time back to the people. that is philosophical. there is something to it. it helps to explain, though not to make a conclusive determination, some of the reaction that you were more articulately describing. >> thank you. let's have some sais stude nts. when you do, give us your name, where you are -- first or second or doctoral -- and ask one question. otherwise, justice breyer will choose among them for you. who had a hand up? what brave soul. >> thank you or that enlightening talk. and a first-year student here --