Magna Carta's Legal Legacy: Conversation with Chief Justice Roberts & Lord Judge

from the Library of Congress in Washington DC you I want to welcome all of you to the beautiful members room here in the Thomas Jefferson Building of the Library of Congress we're very very fortunate and honored today to have with us Chief Justice John Roberts from the United States Supreme Court and the right honourable the Lord judge former Lord Chief Justice of England and Wales they've both graciously agreed to sit down with us today to have a conversation about Magna Carta and its legal legacy tomorrow's 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've been planning and working and so finally tomorrow we will be able to open officially our exhibit Magna Carta Muse and mentor it'll be right upstairs here in the South gallery of this building and it is been a joy working on this for three years the exhibition is the beginning of the for the library to celebrate the 800th anniversary of Magna Carta which will take place next year now I 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 to the library from Lincoln Cathedral in Lincoln England it is one of the four existing exemplification Zork or copies of Magna Carta that King John granted in 1215 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 1939 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 two so our exhibition upstairs will help illustrate Magna Carta influence on the history of rule of law and its impact on the development of the constitutional order here in America and in particular it highlights several legal principles which draw their roots from 17th century interpretation of magna carta and those are legal principles like the principle of representative government the right to due process of law or the right to trial by jury the protection from unlawful imprisonment the privilege of the writ of habeas corpus and of course the theory of limited government so what better way than to prepare for tomorrow's opening to sit with Chief Justice Roberts and Lord judge to have a conversation about this great document to hear their thoughts on its legacy so thank you very much Lord judge and teachers Roberts now Chief Justice Roberts as I'm sure most of you know began his appointment as Chief Justice of the United States and head of the federal judiciary here in the United States in 2005 Lord judge was appointed Lord Chief Justice of England and Wales in 2008 and as Lord Chief Justice of England and Wales he was head of the judiciary and president of the courts of England and Wales I should probably mention one other thing that in addition to both of them leading the judiciary in their respective countries one other item that they have in common is that both are ventures of the Honourable Society of the Middle Temple which is one of the four ancient organisations in England that has the privilege of calling their members to be barristers in England so with that introduction I want to start excuse me I thought we could start with our conversation focusing on Magna Carta and its meaning to us in the present time in modern times and so when we talk about Magna Carta now we focus on the fact that it was a great influence on the leek development of legal systems across the world and on the rise 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 certainly would have been superseded by the United States Competition Constitution so my question is why is it important for us for our respective countries to continue to commemorate Magna Carta in this way and I will start with Justice Roberts thank you well it is of course first and foremost in an imposing 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 Barons and the King I don't think we're terribly interested in promulgating rights that would apply across the board 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 for the state of Massachusetts it shows a militiamen with a sword in one hand and a copy of Magna Carta in the other it embodied for the colonists first what they were looking for in the beginning they were not looking for independence they were looking for the rights of Englishmen to which they thought they were entitled and those were represented by Magna Carta and it was as the state seal of Massachusetts engraved by Paul Revere shows that's what they were fighting for the sword in one hand Magna Carta in the other and you mentioned the 1939 transfer of Magna Carta for safekeeping again that was an extraordinarily powerful symbol the British did not give it over 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 convey the strong message that you should be too so it is very useful as a symbol that represents the rule of law liberties that's it's been reinvented over the years the American colonists when they look to it we're looking to it as interpreted by Blackstone which gave a lot more substance to it as a charter of Liberty than then I think might have been done in earlier centuries but it was a powerful symbol at the time of the rebel it continued to be a powerful symbol at the time of the Second World War and it's available whenever you do need 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 reminds us that although this sounds as though it's an academic subject it isn't in 1939 and 1940 there was a very strong possibility in the evaporative further by the end of 1940 all Europe bar the islands offshore was under the jackboot now 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 be last forever well 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 in a Cathedral that's got 1215 charter has got a treasure of well infinite magnitude but if you don't take for granted don't take your freedoms for granted then Magna Carta becomes a much more vivid vibrant document if I may just go back to it they're actually for charters 1215 1216 1217 1225 none of them is called Magna Carta King John never signed one he sealed it and the three things that are perhaps most important in it are 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's servant inherits by divine luck you could call it but right now every King in medieval Europe made an oath that he'd be a good king do lots of justice look after lots of poor people all the sort of things that you'd want your new king to do but in medieval Europe if the King didn't ants didn't provide justice and so on and so forth I'm afraid they took the view that he had to answer to God in heaven well when the King's dead it's not much good if you've had no justice or you're not been properly looked after and what Magna Carta did was to say in clause 61 if the King does not abide by the Charter when he's notified that he is in breach of it in effect a Council of twenty-five barons can take over the running of the kingdom they're not to harm him they're not to injure him they're not of course treating with violence or his family but they're no longer stuck with their oath of allegiance and fealty 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 first the King comes second he's certainly the most important person in the kingdom but he is beneath the law and that I think leads us to this I think really important point which it's easy in a democracy to overlook but which in any dictatorship would be no trouble at all no King is above the law no president is above the law no executive is above the law everyone is answerable for his actions or her actions in court and that leads to the second but I'm not going to talk about this too long but we're all entitled to justice the the clauses don't just say justice they talk about right and justice now the weren't many writes about in 1215 but over the centuries our rights have come to be established and you find the preservation the entitlement to us a court system that will preserve your rights is there found within the Charter and I regard the insistence in the Charter on and justice as being its 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 England we are they're responsible for seeing that justice is available to all our 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 rights are recognized in the Charter the Barons weren't thinking of us the Barons weren't you know full of ideas about voting of course they weren't but as our country developed and then yours did from ours in the constitutional arrangements and these things became part of the country in England now if somebody says something yeah let's do something that most people would regard as diabolical and dictatorial everybody it's against Magna Carta it isn't against Magna Carta there isn't a word in Magna Carter about trial by jury but people think of Magna Carta as representing their rights their entitlements the need for justice to be done and most important of all equality before the law I'm sorry I've gone on too long oh no no that's quite all right because that leads right into the second question that I was and in relation of the Magna Carta specifically to the law and you'd mentioned no one is above the law specifically so now that we we know that Magna Carta is more a symbol it represents as opposed to a specific provision in there why is it then that today that people should still cite to it especially in law for example if they have a submission to the court or perhaps in a judicial opinion coming out is there more reason other than what you might have talked about then for having references to Magna Carta I mean is it just simply that rhetoric or are there real to deeper meanings for us to do that well doing the chief gift together you don't get fast John on that well well sure if you're citing to Magna Carta in a brief before the Supreme Court of the United States or at an argument you're in pretty bad shape we we like our authorities a little more current and a little more directly on on point I went back and looked and Magna Carta has been cited in Supreme Court opinions of the United States only a hundred and fifty times which isn't that many over over two centuries I did once not too long ago in a case called hosanna-tabor which was a religious free exercise case and I thought it was interesting that the very first paragraph of Magna Carta preserves the freedoms of the Church of England including the right to free election of clergy and I also noticed though and it's something that I think tells you a lot about Magna Carta and its history that there was a writ issued by Henry the second directing a group to hold a free election but forbidding them 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 quite different so obviously it's a source of many provisions that are cited to the court but citations to the Magna Carta itself are really quite unusual I think all right our experience is much the same if the best you can do is Magna Carta on the whole you're on thin ground because they have been well you have a written constitution we have a partly written constitution partly not but it's still Magna Carta still carries the resonance in the court process now for example a few years ago our civil justice system was in some disarray the cases were taking too long to come on they were just sort of meandering and the judiciary decided this was not the way the administration of justice should operate and relying on Magna Carta certainly referring to Magna Carta and not delaying justice and justice delayed is justice denied a whole new branch of jurisprudence called want of prosecution was created now nobody says I'm citing Magna Carta because this case has just me ended on for 27 years and ought to be stopped but the the structure of saying we will not put up with this the judicial system cannot accept this kind of slow turgid process had Magna Carta as part of the support for it so yes if you say Magna Carta you're probably a bit short of 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 then bear in mind and one last point on this David said at his introduction we talked about due process we talked about habeas corpus we talked about impartial juries we have a bill of rights in England you have a bill of rights here these are in direct lineage from Magna Carta so the fact that if council comes along and says Magna Carta is my best authority that doesn't seem very strong when you examine the lineage which has come down to us from Magna Carta many of the arguments which are well-founded stem originally from the thought processes that have developed over the last 800 years okay thank you I think maybe we'll move along then and talk a little bit about Magna Carta and its relation to the development of constitutional government and outside of the law I guess in this context because when I mentioned the libraries exhibition I I said that a lot of the principles that we focus on or drawn from interpretations of 17th century English jurists but then people here today will ask us well you know if you look at it in that context it wasn't talking about a democracy as we know it today certainly democracy we we say is you know the legitimacy of the state and it depends on the will of all the people and so back then it was King John and the Barons but how did those pre democratic origins or 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 yeah yeah I am sorry I keep turning to you but I can certainly turn to well it's an 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 despite its prominent role in in the Revolution Magna Carta is mentioned only once in the Federalist Papers and in a distinguishing way Hamilton in Federalist 84 made the point that we do not derive 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 has 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'd look at that and say well Magna Carta had very little role to play but in fact you need to look at the Magna Carta in a more nuanced way we think of it as a laundry list of Rights but it is also a reflection of the notion of a separation of powers in fact it maybe make more sense to view it that way in the sense you had the king with authority and the Barons 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 and well again III agree with the chief the reason why Magna Carta survived at all is it's a pure historic accident accident I mean as I said earlier monarchs all over the continent were dishing out charters there's the golden bull of Hungary there's the something of Aragon all promising to do all these things the thing that made the difference and it became of course the call for the colonists in 1765 when the Stamp Act was passed was that there had to be a link as it happened between the king raising money a taxation when he couldn't live off his own resources and calling a council and it's not representative government at all but in the clauses of Magna Carter itself there's a clause called the scooted Clause would you all like to know what the scooted Clause is I'll give you a well it's very good it comes from the Latin for shield when you were owned a lot of land you had you're entitled to say to your villain or your inferior you bring three sodas I'm off to fight a war well bringing three soldiers who were you know the old boy in the farm had got a bad back somebody who got a billhook and somebody got a rake wasn't very clever you say oh he said they were won't will change this just give us some money we employ the mercenaries who know how to fight and in Magna Carter itself the scooted Clause provides that the King cannot raise it cannot raise this tax without consent now so many things stem from that once the king can't rule out of his own money he has to go and ask the 1225 charter was an actual direct deal you can have your tax if you will give us the Charter and so it went on and on until now Stuart 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 and it was to this very line that John Dickinson was referring when in 1765 Stamp Act was passed by a British Parliament for the first time imposing direct taxation on the citizens of the colonies that they had plenty of tax for imports and exports but direct taxation that suddenly this issue came alive hang on we're being taxed and they were and were not represented anywhere and they weren't and so that no taxation without representation is actually a long continuing steady development as part of the process which culminated eventually in people rising well why should any people with land have a vote why should only men have a bit why should slaves exist and so on each generation sees new things that it finds unacceptable and as a result we hopefully improve our societies but it all stems from this process thank you Lord judge and so I want to go back to something that Chief Justice mentioned in his previous comment a separation of powers because that is one of the questions I had planned on asking because when we talk about Magna Carta the story the myth if you will over the years it allows us to symbolically represent democracy of the King representing someone who is overreaching that the state and in the Baron who are the people but in our contemporary legal systems it's the judiciary that you both had headed in your case that play the role of deciding you know whether there should be a limit or not a limit or if something has been overstep things like that and so I'm wondering if you could talk a little bit about the ideal of that commitment within Magna Carta to the rule of law does that allow them for this judicial review or is perhaps that you to show review coming from somewhere else well I don't think if I may give first John that Magna Carta had judicial review in mind I really don't think the Barons would think about that what I think is interesting is the way in which your constitutional arrangements developed after the War of Independence after the Treaty of Paris I think the Madison decision is absolutely fascinating because it ultimately 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 the NASS Supreme Court has in our country ultimately Parliament is sovereign you decided that after all the Parliament that could pass the Stamp Act and impairs taxation on you and then the declaration that you had to obey any act of Parliament whatever happened and so on and so forth 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 and in Parliament but in the end in our country the judges have to make sure that everybody is acting in accordance with the law so we have plenty of judicial review proceedings our present government is taking very great umbrage at the number of judicial review applications that are made the way you challenge somebody who has exercised power which he or she does not have is in our country through judicial review but it's a slightly different process to the one that 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 in the great britain it's decided ultimately by Parliament say the two constitutions die version I think the divergence was consequent on what Parliament had done to the colonists in the 18th century it's interesting if you go look at one of the great doors in the front of the Supreme Court there's one with four panels the the panel on the bottom is King John sealing Magna Carta the the the next panel up is the 1275 the statute of Westminster and the next one up is Lord Cooke and James the first and on top is john marshall and joseph story and they're said to be discussing Marbury vs. Madison showing the direct lineage from Magna Carta on up to what you rightly say is the foundation of judicial review in our our country now unfortunately Cass Gilbert the architect said no they weren't talking about Marbury at all but that's one of those you know the facts shouldn't interfere with a good story but Magna Carta was significant with respect to judicial review in another way it was written down and that became very important for us if you read Marbury against Madison but Marshall said is basically we have this text and we have this statute and if the statute conflicts with this text one of 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 Trump's the statute and we don't have there is no judicial review clause in the Constitution there is a provision that the court will decide cases and controversies and all Marshall said was 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 Trump's so the fact that you were dealing with a written document was very important in Marbury vs. Madison and from our perspective at least that's one of the important features of Magna Carta and also one of the things that makes the institution of judicial review a little more palatable from democratic theory in our system you are dealing with a writing you are not dealing with some 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 is a writing there I think 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 the underlying tradition that there is a higher law underlying some of our rights and so of course we know that Magna Carta itself does not set itself apart as a higher law of sorts but in 17th century interpretations of Magna Carta it was used in that way as a model for upholding constitutional limits to statutes since we've talked about I guess I'll start with Chief Justice Roberts that model may not necessarily work for us today is there anything that we might cite to as an analogue 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 it would be something like Magna Carta we don't have a higher law in the sense of a natural law or something that would supersede the Constitution this gets back to what we were mentioning earlier the Constitution is granted by We the People and so you would not look to some principle of higher law to inform the interpretation but if you are asking for where the spirit of the document can be found it does go back to magna carta we 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 need it to more or less promise well we'll add 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 say we wouldn't appeal to it to get beyond the Constitution as some theorists of natural law might but again I share that viewer 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 it 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 was appealing to any higher 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 issued in 1616 guess what its title was the Great Charter Magna Carta and it was created by a man called Edwin sands who was a member of the Middle Temple that your chief is and I am who've been imprisoned by the king but somehow rather he bamboozled the King into giving this charter to the Jin in which the rights of the colonists in Virginia were to be the same as any Englishman and they expressly included equality before the law 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 but what I'm driving at is that it's not a higher law issue at all it's these are the rights that you have as a colonists and it was those rights that the colonists in 1776 and so on were fighting to achieve for themselves because they weren't getting them thank you well I have two more questions areas the first one is really talking about Magna Carta and its symbols since we are celebrating its 800th anniversary well next year we'll celebrate his 800 anniversary but really thinking about Magna Carta and the future and so we like as we've mentioned quite a few times here that it's more of a symbol it symbolizes rule of law insurrection against tyranny live in a government popular sovereignty but I guess my question to you to start where judge was would be if you were to think about this as a symbol which one of those or any other ones perhaps that it might stand for would you prefer Magna Carta to stand for for the next 800 years to lead us forward into the future I have no doubt about that my view it's 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 what the one which I hope will continue well I certainly agree with that I mean it is the basis and then when you think of Magna Carta as a symbol I like to think of it as a cornerstone we celebrate the 800th birthday as we would celebrate the laying of a cornerstone for a building and the what we've built on that cornerstone is something we call the rule of law which is you have to be careful not to think of it as sort of a throwaway phrase or 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 I when I practiced 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 was 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 buildings is a restraint of power and might exactly what the Barons were doing at Runnymede when they coerced the king into granting the the Charter so it's very much when we say the rule of law we need something very concrete and very practical and it certainly traces its origins to Magna Carta thank you and if I may just add and one reason why we live in communities which are basically peaceful and I know I know there of course everybody has troubles from time to time is that I believe am I being naive that most people respect in our country's 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 and this is practical rule of law this is what means that people go up and down the street just getting on with their lives looking after their families and so on and so forth rule of law is not a nice Oh Tarek wonderful academic subject it's practical hard reality thank you my last questions really was just open it up and see if there's any one final thought that you would like us to think about not well 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 and 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 over with trial by jury put on my red robes pulled 12 members of the Dutch public into the court made them the jury and we did a little trial and afterwards I was explaining about trial by jury and saying to them of course if we did have a government that said 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 say not guilty even if the blue man's head was as red as as a beacon big joke laughter but afterwards the man who had been the chief justice in Belgium a man who I respect very much said you know that little joke you told eagle I said yes I said they say we don't expect to have a government that's going to say men with red hair must go to prison for six months he said you're forgetting so I said what's that he said there isn't a country represented here which was 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 except 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 and that the government's also respect the rule of law I think that's a crucial part of it it's a community thing we're all in it together government's 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 by the people in our case by we the people over 800 years the development of the rule of law or judge in your country and and then in ours as well is what underlies it's what gives meaning to Magna Carta and its continuing influence and one thing reason I think the 800th celebration is so important because it reminds us that we have the obligation to carry forward the values represented in that document so that it doesn't become simply a list of meaningly meaningless rights as it was in the Soviet Constitution very well said and so that's why we do celebrate the 800th anniversary marry Magna Carta thank you very much for coming this afternoon I hope you'll join me in thanking Lord judge and she just Rob Roberts this has been a presentation of the Library of Congress visit us at loc.gov

Channel: Library of Congress

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Keywords: Library of Congress, Chief Justice Of The United States (Judicial Title), Magna Carta (Literature Subject), Law (Industry)

Id: 45Y7bN7ZwaY

Length: 42min 24sec (2544 seconds)

Published: Fri Nov 14 2014