Constitutional democracy. Studying it, thinking about it, writing about it, teaching about it. And actually directly involved in its workings. Thise introduce triumvirate. Roger gregory is the chief judge thehe court of appeals for Fourth Circuit. He has served on that court for almost 20 years. Has the distinguished distinction of having been nominated for the court by both president clinton and president george w. Bush. He was confirmed by the senate 931 judge gregory is the first africanamerican to serve on the Fourth Circuit. He founded a law firm with the first African American lawyer of virginia. Also have a chair of the professor of law at the university of virginia. He has served on the faculty any longer than any other. He is still going strong 55 years into the mission. He has devoted his professional life to combing the mysteries of the u. S. Supreme court and understanding constitutions. He was the principal trestman of the last revision of virginias constitution. He has helped write constitutions in many other countries. He has been acclaimed of one of the great virginians of the 20th century. On my left is the president and ceo of the National Constitution center. He is also a professor at George WashingtonUniversity Law school and a contributing editor of atlantic magazine. He is a prolific scholar and writer. I think it is fair to say he is one of our countrys most compelling analysts and commentators on legal matters, if not the most. Read theave probably description of this panel in the program for today. Rule of man or rule of law . Society without checks and balances. What is the role of constitutions in making the rule of law take hold in emerging representative systems . What makes the constitution last . You cannot build a Free Society Without the rule of law being tantamount. The question is how to make the rule of law stick. Law it comes to the rule of , it seems to me that past experience makes pretty clear that it is often easier for a country to talk the talk then to walk the walk. Constitutions are written and adopted around the globe with provisions for the protections of civil rights, independent judiciary, checks and balances, much more. But when it comes to implementing these constitutional provisions, the rule of the often cannot compete with the rule of power, privilege, greed. What factors relate to account for the success of the rule of law in some countries but not others . The rule of law takes hold, how can it be nourished over time . How can it be made to stick . Are there reasons for us to believe that the rule of law will hold increasingly in the centuries to come . Or has the rule of law had its brief moment in the sun and now constitutional democracies are an endangered species sinking in a sea of enormous technological change and societal alienation . I will bracestions are auguste panel with at the end of their presentations assuming they leave enough time. The real battle for this panel 10uld be each panelist gets 8 minutes uninterrupted to give his perspective on constitutions and the rule of law. Then we will have a conversation together along the lines that i just sketched. Lets begin with judge gregory in the middle. Inis actively involved making constitutional democracy work as a judge. Thoughts abouts the role of an independent judiciary and a functioning rule of law. Judge gregory, you are unleashed. Gregory as in a good trial lawyer would know, when you have great experts, you just get out of the way and make them when the case for you. My job is easy. The role of a judiciary is absolutely essential. That is my answer. It is true. In september 1787, when our framers came out of that musty , someonehiladelphia asked ben franklin, what have you wrought . And he said, a republic, if you can keep it. It was important because he said if you can keep it. He was not speaking to the people who adjusts forms this document to bring forth a new nation. He said this republic will be here if you keep it. I think the constitution has stick ashink it will long as we the people understand it belongs to us. The idea that the people seated this power to a government for thaturpose, it amazes me most men do not cite the preamble when they come before our court. There are very pressing constitutional issues. Our framers spoke in broad language and broad principles. The preamble said to establish a. Ore Perfect Union and to establish justice. I believe the preamble should be cited because whatever we do with interpretation, the end mission is always justice. Argue, if there , it must be toward justice. Oral arc ofd the the universe is long that it always bends toward justice. That is probably the most enduring thing the framers gave me in the preamble. The biggest tool we have as the judiciary as we are independent. Federalist paper 78 says that the constitution is the fundamental law and judges shall regard it as such. But it also says in terms of judicial review that establishes the rule of law. It becomes the primary law. Federalist paper 78 said that it is the peculiar province of the courts to interpret the law. Proper, peculiar province of the courts. That is a heavy assignment to interpret the law under judicial review. That power is entrusted to us by the people. Anvil. Ike an if its the anvil upon which the constitution has worked. It has to be worked. Not with a hammer beating people down. But to make it a tool that becomes the utility for government. There was so much the framers left open. Most people who watch police shows know about miranda rights. But that is not in the constitution. But it is in the constitution that you should not be made to give testimony against yourself. That is a judicial creation. That is what we are always trying to do. You cannot work it just by reading. There has to be context. That is what they gave us. A republic. As a judge, i have had some incredible cases since i have been on the Fourth Circuit. They are always difficult. That is what the whole challenge is. To make sure that selfgovernance is preserved. And rights are protected. It is the people who gave it. Federalist paper 78 talks about judicial review. It says that when you get to ascertaining what the constitution is, this is what keeps me in check. The people gave me this power. A very sacred one. First ascertain what the constitution says and understand it. Then ascertain what the statute of the active. Then determine whether or not there is an your considerable difference. So, you always prefer the constitution over the statute. Not because you want to do it but because the intention of the people is expressed in the constitution and should always prevail over the intention of its agents. You own it. You gave it to me with the sacred trust that i will do so without fear. Make it a living document. Make it a tool. I was on a big case and i was about to come on for oral arguments. I could hear crowds of people outside circulating the court. They had placards. I thought how wonderful this country is. That people are free to assemble and express their views. I cant look out there and try to count noses. Like justice, i am blind to that. But the people sacred trust must be kept in the confines of understanding that constitution. One of the greatest compliments i had since i have been chief. An africanamerican man said to me, the Fourth Circuit is a just circuit. It turns out that he had a habeas case. He said he went from an incarcerated person and 80 months later he owned a home. He said this is a symbol i use. I go back to the prison and tell other people how they can do something to change their lives. That is what to me makes the judiciary important. It gives a chance for all of us to understand selfgovernance and being who you can be. We talked about the glaring things left out of the constitution. The right to vote and citizenship are not defined. Yes, we have a republic. The question is we must keep people engaged. Im happy that the judicial has a role in that. A friend of mine said democracies die behind closed doors. We must be transparent. That is why we have opinions. Read them, understand them, this group them, but know that they to bene so faithfully faithful to the rule of law and selfgovernance will always prevail. Thank you. [applause] we are glad you are on the Fourth Circuit. We have heard about the role of it independent judiciary in the rule of law. Structural checks and balances. They lead to compromise among the policymaking branches of government. Thank you for that question. Thank you for including me in this significant anniversary. It is a great honor to be here among three great virginians. I was born in new york. I now work in philadelphia. Right across from Independence Hall where jefferson wrote the declaration and medicine and those other great framers wrote the constitution. What was medicine thinking when he created the greatest human document of freedom . What was the centrality of the structural guarantee for the preservation of the rule of law . To summer before he came philadelphia, madison had a reading projects that have been sent to him by jefferson. Jefferson sent to trunk fulls of books from paris about the failures of ancients democracies, in particular greece and rome. Thaton was concerned america might go the way of greece. Thatderalist 55 he wrote in all large assemblies, passion never fails to rest the scepter of reason. If every athenian has been socrates, athens still would have been a mob. Madison deduced from his reading that unchecked mobs deliberating facetoface nbc spy passion and lead to factions, which he defined as groups animated by passion rather than reason. By selfinterest rather than the public good. Which judge gregory so member libby defined. Framersand the other set out to design a system where people would be ruled by reason instead of passion. Structural protections were at the core of that project. Madison was concerned about mobs like shays rebellion in massachusetts. He wanted to design a system that slowed down the liberation. He is particularly encouraged by the large size of the American Republic. That is why representation is the core of a representative republic. Unlike athens, the framers did not want to make direct democracy. They didnt want referenda or brexit or twitter. They wanted to liberation and compromise. Significantit is so we are here on the four 50th anniversary of representation. How did they expressed these guarantees and the constitution itself . At the National Constitution center, which i want you to visit if you have not yet. We have the five earliest straps of the constitution ever written. Including the very first raft written by that forgotten but her roark framer james wilson. He wrote the first words ever written about the constitution. It says in the preamble that the government of the United States of the executive, legislative, and judicial branch. Separation of powers. The idea of we the people came later. It was only the third draft that said we the people of the United States. Separation of powers was the crucial, central innovation. Where did he get the notion . From the revolutionary era state constitutions. And in particular from the virginia declaration of rights. Not only is virginia responsible for the 400th anniversary of the rule of law, it is responsible for the rights. We also have at our center one of the 12 original copies of the bill of rights. Drafts ofu can find the amendment that madison proposed but were not ultimately. Dopted i want you to download our app. Not now, because im talking. But after the panel. The first channeled and reproduced what jefferson put in the second sentence of the declaration of independence. All men are created equal and natural rights from god or governments that government has to secure these rights. Oft is the lockin statement natural rights. People have the right and duty to change them. The Second Amendment that madison proposed them was not adopted also came from the virginia declaration. It said the legislative branch. Annot exercise judicial power it was the separation of powers amendment. Reiterated what the virginia declaration had emphasized. It was crucially important for each france to stay within its own lane to preserve the sovereignty of people. Whenever there is a conflict between the wills of people and ,hey will of representatives you prefer the principle to the agent. That is based on the idea that the three branches do not speak for the people. Only we the people speak for ourselves. Each branch they see its own lane. That is why madison thought that a bill of rights was unnecessary or dangerous. Because the constitution itself was a bill of rights. Onlymiting power and specifying enumerated powers to the congress and judicial branch. He thought it was dangerous because if you write down mightn rights, people wrongly assume that if a right is not written down, it is not protected. He changed his mind for prudential reasons. And we have the bill of rights taken largely from the virginia declaration. Madison and the other framers thought those rights would be thehment and less structural guarantees of the constitution would be preserved. Asking, wasy that theoo optimistic separation of powers would ensure . The idea is that when passionate monster to mobilize, they will not be able to discover each other. And that topple representatives andhe people will set aside deliberate in the public good. World ofving in a twitter and facebook, where mobs can mobilize immediately. Where false news travels faster than really is. It is more appealing to the passions. We are living in filter bubbles and echo chambers. The people themselves are increasingly unwilling to listen to thoughtful arguments on the other side. Is there enough time . Madison thought we should slow down the liberation. At a time when the speed of the liberation is undermining the speed bumps and cooling mechanisms, we need to talk seriously about whether they and reason can be adequately concerned by these mechanisms. Contrast are complicated, checked, multifaceted system with the other cradle of western democracy, britain, which gave rise to the magna carta and the virginia declaration and are due process clause, you see how a constitutional system can be misjudgment that fundamental decisions can be made on boats. The framers had a deep conviction that in order to present the will of the people, we would never allow the people themselves to make a quick decision. We would insist that each of the three branches can never be present to speak in our name. Loss can only go into affect if they are consistent with the constitution that has been ratified. That is the basis for my optimism and why im so glad to be part of this discussion. [applause] thank you. That was powerful. We will faithfully visit the National Constitution center either in the flesh or on the internet or both. We are glad you are there and leaving it. Now we come to the vital matter howonstitution writing and a nations constitutional , once it makes its constitution, puts it on paper, ratifies it, can nurture the rule of law and make it stick. Or not. You are the worlds leading expert on the subject. Thank you. In berlin wall came down 1989. Im sure many of you will remember the remarkable sequence of events. One communist government after another tumbled. In poland, czechoslovakia, hungary. Communism seem to have imploded in the region. Privilege of teaching constitutional law. What a imagine remarkable opportunity it was to sitting around people making constitutions for the nations. These were very good lawyers and judges. Experts in their fields. The constitution was the epitome for the symbol of the cold war. During this. In the 1990s, i was at a meeting in st. Petersburg. I was working with judges and lawyers. It was that brief moment when we thought russia would become Something Like a liberal democracy. Seems like such a long time ago. There was to remember a glimmer of hope. We were having serious discussions. They had very good people. I dont speak any russian. We were looking for a translator. I discovered that she was translating the phrase rule of law as socialist legality. That is not exactly what we meant. Immersed in this enterprise. For a guy like me who loves but wasnt alive in 1787, no matter what my students think, to see constitutions coming into being, what a wonderful moment for me. What i realized was i was watching some of our american give advice and say, you need a new constitution. I have one right here. We the people of fell in the blanks. It became a mechanical enterprise of some sort. It is a lot more difficult than that. I quickly came to realize that constitutions are contextual. Arehe sense that they depending on history, custom, tradition, practice. Someone once said that central europeans carry more history in their backpack. History preoccupies people in that region. I was at dinner one night in budapest and we were talking about the revolutions of 1848, which is a big deal in european history. We dont study it so much in this country. Where liberalse and reformers and young people would hang out, have a cup of coffee, talk about what they hoped life would be like if they could get the austrian empire out of their hair. Cafe, maybe itis is not a cafe anymore. Question, onehat said, women at the table i was hungary in. I dont have any hungarians blood. He said if you care that much about hungarian history, you must be hungary and. On constitution making here in virginia ms. Mitchell i was born and raised here. I started teaching law at the university of virginia. Soon after i was appointed, the governor appointed a constitutional revision. I was asked to be the executive director. I did not tell them i had not even read the old virginia constitution. The first thing i had to do was go read it. I was amazed when i found their. If you fought a duel in virginia, you lost your right to vote. Then i was asked to work for the legislature. Finally the governor asked me if i would chair the constitutional reform campaign. In theble to be involved drafting, the legislations adoption, the popular approval, the whole process. It was an amazing experience. That ready to go to places like prague and budapest and warsaw. When you have been beat up on by the the members of the virginia legislature, there is nothing else anybody can do. Constitutions are not abstract documents. They reflect reality. They have a history of a people and their aspirations and their way of thinking. 1989, theion after constitutions that emerged were very western oriented. They adopted principles like rule of law, supremacy, checks and balances. They were very influenced by the german basic law and by western