With a professor who went to china. The press said what are you doing . I said i am writing a book. China, yesterday, today, and tomorrow. But i did go over there. [laughter] there are about 600 of them and they speak english. It is like talking to a group in texas. There is no problem in understanding how the system works. Exactly what they said. How do we get from here to there . To which my response is, i do not know. That is a problem for you to solve, i cannot do it. What is it that they seem to be interested in . It is so obvious. Do you think this rule of law has been given on day one and suddenly it was followed . Of course not. Do not think democracy will solve them. It is both your friend and your enemies. Hamilton and madison right the document. It is a very good document. Ask any of us on the courts, we would be in agreement on the basic things. The basic framework is it creates institutions of democracy. People can decide for themselves what kinds of community they want it is a special kind of democracy. It is a democracy that protect certain basic human rights that assures some degree of equality. The separation of powers is not what you are looking for here. Separation of powers he is very clear. You are looking for judicial independence. The separation of powers is both vertical and it is also horizontal. The basic function is not to preserve a rule of law. It is to divide power into pockets. You prevent any group of people from being too powerful. That is the basic purpose. Finally, a rule of law. You have a document that is trying to restore democratic institutions, protection of human rights, a degree of equality, separating power, and guaranteeing a rule of law. Hamilton is the one who brings in the court. He is trying to answer a question. We have written a beautiful document. Read federalist 78. We have created a beautiful document. If nobody follows the rules, these are the ground rules, and if no one is to say when somebody in the government strays outside the boundaries, we should hang it up in a museum. Nonetheless, you get the point. Somebody has to have the power to say when the others have gone too far. Who should that be . The president is already too powerful. Congress . Wait a minute, they are experts in popularity. Believe me, they know popularity. If they did not, they would not be where they are. This document gives the same rights and protections exactly to the least popular person in the United States as to the most popular. Youre not going to get them to do it. That leaves the judges. If you read 78, it is not that he thought the judges were wonderful. He thought that was the best choice available. We will give them the power. Who are they . We do not know. Perfect. Wonderful. They are egomaniacs yet. They are not egomaniacs yet. They did not have the power of the purse and i do not have the power of the sword. Wonderful. We give them to the power to declare what others are doing are contrary to the constitution. It then takes a long time, close to 200 years, before that power becomes effective. The thing is to study the history of slavery and segregation. Why . Its so tempting to say, the United States is the child of the french enlightenment. Read what he writes. It is in many respects but not in light of slavery. He comes over here to study what democracy will be like in the future. I will tell you two things that will happen. Big problems in the United States. The first is the indian. That will not be such a terrible problem because they will kill them all. The second is slavery. Remember that there were large sections of the country or the natural state of things was not human rights. The natural state of things was slavery. And then racial segregation. That took a very long time and a civil war and 80 years of segregation before we began to deal with that problem. To me, you go back and let it one of these cases. Look at the history of the cherokee indian case. The Supreme Court says the law says the northern georgia belongs to the cherokee indian tribe. The president of the United States says the Supreme Court made this decision, now let them enforce it. Go forward. Andrew jackson sends troops. They go down to oklahoma on the trail of tears. The efforts that were made to desegregate after when holmes was on the courts, contrary to what the 15th amendment says. When they keep a black person from the polls. We cannot strike this down because nobody will do what we said. We are not unfamiliar with this kind of problem. What i usually say, because i believe it so much, i think a great day in the history of the law of the United States in respect to establishing a rule of law was the day when the nine black children in little rock were finally you have the case which arises out of little rock. Little rock begins when a judge says, we mean it. The first year, what happened . Nothing. The second year . Nothing. The third year, they finally get around to doing something. Put those nine children in the school. The governor of arkansas called in his militia. The congressmen down there, who was a moderate, they arrange a meeting with eisenhower. President eisenhower meets with the governor. The governor says, i will let him do it. I will integrate the school. The governor goes out of the room and tells the press the opposite. The president dressed me down like a general dresses down a sergeant. That is what happened. Eisenhower has to say, what am i going to do . Eisenhower says to the governor of south carolina, what do i do . The governor was a moderate and had resigned from the Supreme Court. If you send in troops into arkansas, youll have to reoccupy the south. Public opinion for humanrights was exactly the opposite. The attorney general says to eisenhower, you have to send in troops. And he did. He took paratroopers from the 131st airborne. The 101st airborne. It has to be popular. He took those thousand troops deliberately chosen because they were the heroes of world war ii. Every american knew that at the time. They put them on the airplanes and may take those children and that picture went around the world. Fabulous. The Supreme Court said, absolutely, you do this. The day after the Supreme Court said that, the governor closed the schools. They remained close for about eight months. That was the beginning of freedom riders into the south. Martin luther king andit was a whole movement. Why am i telling you this . I did not see how you bring about the rule of law without making the rule of law popular. The people have to understand the virtue of its and that is tough because what it means is you will have institutions called the courts, which by definition are there to do things when they are unpopular. Wow. Wow. How do we bring about that kind of society . You have bush v. Gore, the most remarkable thing about that case, people followed it. And it was very popular and very wrong. No guns, no riots. I know what half of you were thinking. As university students. They are thinking to bed there werent some riots. Before you think that, you could turn on your Television Set and see what happens in countries that solve their problems that way. What i see every day in the court room is people who have somehow i do not know how partly education. I have read in this book, partly they think it is normal. Justice kennedy goes over to china lot. Goes over to china in a lot. What would you say . We wrote down eight or nine. Ultimately, what youre working towards is a general understanding. I found my own way of expressing that. Of what that understanding has to be. Maybe you can get there. When i saw the apartheid in south africa, it meant something to me. I looked at the television and on the television, there is a woman, well dressed, well educated woman, well spoken. She is black. She says the following. Country . Our situation is not normal. How did you get people to think that is normal to follow a rule of law and follow the judges even when the judges decide something you think is wrong and even when it is unpopular . The problem is put to me by those students at the university. You have to have an independent judiciary. How do you do that . Tell them they cannot be fired. They will love that. And then you tell them we will not cut your pay. Which we dont live up to here, by the way. They will like that, too. I heard the russian judges speak about it thereafter. Simple things. I did not know how youd get them out of this as long as you have three people, the police chief, the prosecutor, and the judge deciding cases you could create a situation where the general public thinks that is abnormal. This is sort of weird. How do you bring that about . That is why you have to chapters in your book. The thing i like best about our bar is a lawyer will come in and say to a judge, judge, you are wrong. You are just wrong. They will say it politely. You are wrong. The judge will feel a little sheepish. If he will decide something so obviously wrong. And the press. I know the greatest test of the independent bar and prospered the press is always criticizing you and the bar is always telling you you are wrong. They are absolutely necessary. The judge and the other country saidwe should do something about the press and the bar. I said, no, that is not the point. [laughter] the point is opposite. You cannot do without this press writing all kinds of things. Unless you give the publicity to it, there is no way to build all right, so, this is one. This is a dream, but it is the right dream. When Democratic People takeover, they want to fire all the judges. Everyone you fire, everyone you fire, you are weakening the independent judiciary link. The good ones think, i could be fired, too. I found south africa very interesting. Look and see how they dealt with their judiciaries there. They put in new judges, but they did not fire the old ones. I find it instructive. That was one. The best things in the administrative procedure is a very simple rule. If it is not public, it is not a lot. It is not a lot. It is not aok . A law. Simple. When the judge is going to say that is a very simple and very Important Role and it comes under the guise of the administrative procedure. I do not know i put them in order of what you try to get first. I do not know. Every legal procedure will be conducted in public. Wait a minute. Deliberating . Public. How do you run not . How do you run that . There is a rule there called ex parte communication. All the evidence has to be public. The deliberations can be private. This rule against, nothing goes in to the Decision Makers mind except to it is wonderful that it sounds technical. The more technical it sounds, the better. Take the part about commercial law, for example. Are you going to get the investments is people feel that their decisions will not be decided fairly . Of course, you want businesses. You need a minimum due process. Impartial decisionmaker, an opportunity to present arguments, and an opportunity to sit approves the arguments of the other side. We need those so that the businesses will see that their disputes are being resolved fairly. Pretty soon, you have this independent judiciary going. Once it is going, you say to the people in the government world, are you worried about being accused of business related crime . If you end up being accused unfairly of that, would you like a fair and impartial tribunal . Some of them live like that idea. Take an area that is not threatening. Habeus corpus, that should be higher up on the list. King john was asked by his baron here is all we want. Do not affect a persons liberty negatively. Except according tonobodys liberty is affected law. Without a law. The law has to be public. I had a case like that. Somebody was picked up by the Customs Authority from Dominican Republic and put into confinement and threw a rock out the window with a note that said, send it to my wife. What is your explanation . The explanation has to be according to law. And there we are. People try to do their jobs. A public defender, that is helpful. Then you build a core of people with a professional interest in seeing that the process remains. If you think they always succeed here, they do not. Plenty of problems with our system. There are plenty. That is actually a virtue. By looking at these problem areas, they can see help people take steps to try to overcome it. I am going to open the floor because we have half an hour to go. Who want to ask the first question . In the back [inaudible] Washington Post thank you for those remarks. You have taken us into thorny territory. From your visits to china, your conversations with the students there and officials there, do you have a sense that we are on a path thank you. Washington post. Thank you for those remarks. Territory. From your visits to china, and your conversations with students and officials, if you have a sense that we are on a path where an independent judiciary can be formed in a system that is ruled by communist party that puts other values much more on you are siding. Do you have a sense the party is willing to make the kind of compromises that will put it out of business . You are asking the question ii do not know. I do know that you have an entire generation of students who were very much up to speed on this. They do see a rule of law and the kind of values and our constitution as worthwhile and important. How do get from here to there . The battle becomes half won. It is an article of faith with me. There is no dictatorship. But eventually, Public Opinion does matter. Informed Public Opinion does matter. No matter what the country, no matter what the situation. That is perhaps an article of faith. I dont see how that is resistible when it is so widespread. Right here, sir. I am from beijing. China economically is doing very well compared to the rest of the world. There is still a Global Financial crisis. It is china that it is true that china is doing very well economically, but increasingly, many students are coming to the u. S. To study. They feel theyre part of the they feel that china is divided. He is starting to become a strong leader. The xi jinpingthat is a dilemma. If chinas leaders become very strong, it is a bigger dilemma. It is better for china. Where the Security System becomes stronger. Those are the two questions. The first is whether china is a part of the global problems or part of the global solutions. It is not just chinese problem. According to people in the economic world. You are getting beyond me. I can not see it as a china problem or an american problem. I can see it as a human problem. If you could find a way to have a Society Without conflicts, that should be what you do. Ultimately, law and courts are ways of resolving conflicts among human beings. A good way to do that or people with simple tribes. When people were simple tribes of 200 people and they were wandering in the desert,they could solve their problems by having someone even then, they had problems. They would dispense justice individual by individual. And it worked. Where you are dealing with groups of people, hundreds of millions of people, there are conflicts you cannot solve except through rules. Once you have a system of rules, you have a system of law. As soon as you have a system of law, people say, why should i do that . One kind of answer that seems to work pretty well it is that you had a say in this, you know. Maybe it is secondhand, but you had a say. And then they say, the majority is ganging up on me. Me. Very well, we will have a basic system that gives even knew certain basic rights. Even you who are not popular, certain basic rights. How do i know we will do it . We have set up this imperfect system filled with problems. An imperfect system to help make certain you are not being unfairly picked on. Unfairly picked on is not something that is an american notion or a chinese notion. Justice shall you pursue, not dispense. According to the bible. Something somebody dispenses. It is something somebody purses. The idea maybe i am wrong. I suspect there are certain things in human nature that are universal. Having a say might be wind. Having a say might be one of them. Not being unfairly picked on is certainly one. That is why i think we are basically here. Were trying to find solutions. Whether we are china or wherever we are from. There. I work for the National Endowment for democracy. My question is i am paraphrasing Chinese Society often,the west does not always here as often as some of us like. For them, there are huge legal issues that remain. There isthe number of human rights abuses including the starvation of tens of millions as well as a lot of other political campaigns. To this day, these issues remain off the table. What are the limitations and solutions rule of law can provide for that problem . I think people would not vote. To start 30 million people. That is unlikely to occur. Courts and judges and constitutions people see it as one possible, small guarantee against the kinds of horrors that happened all over the world. You put nine people together with the system of education and try to make it public and maybe it is a little bit of help. That is where i think we are. The strength as having a notion that i will accept this Court Decision even though i do not like those judges and i think fit are wrong half the time. I will not even tell you what the lawyers say when theyre outside the courtroom. [laughter] it may help a little bit. Maybe there is a guarantee of a kind of it could be swept away pretty easily. We keep working at it. In china, they just have a police chief and prosecutor and judge. What kind of a system is that . And then i think, 95 of cases are decided by a plea bargain between the prosecutor and the defense lawyer. And i said, what kind of a system is that . It is not a perfect system. System. There are problems. The important thing for us, i think, is keep working on them. Your job is to go participate and take part. If you do not like it, it convinced the majority to go your way. If you do not like what is going on, there are legal aid societies. Go into a courtroom. It is a messy system. It is not terribly efficient. Hamilton and the others hoped it would be a kind of guarantee for certain basic liberties. I believe in that or would not spend so much time added. Or i would not spend so much time at it. Yes . Thank you. I write the mitchell report. As i was lis