Response to Lord Goldsmith’s Address of July 3, 2002 by: (note bookmarks)
Judge Albert Rosenblatt, New York Court of Appeals
Judge Louis H. Pollak, U.S. District Court for the Eastern District of Pennsylvania
Introduction by Judge Becker, Chief Judge U.S. Court of Appeals for the Third Circuit
We have heard a very important address by Lord Goldsmith not just because of its intellectual substance but because of the role of the speaker in the government of the United Kingdom.
We have two very distinguished jurists who will each give brief responses, one is a judge of the Court referenced by Lord Goldsmith, the New York Court of Appeals. The New York Court of Appeals is the highest Court of New York State; it is the Court on which Benjamin Nathan Cordozo once sat, Judge Albert Rosenblatt. Another, and the second is a Judge of the U.S. District Court for the Eastern District of Pennsylvania, not only a distinguished jurist but probably the only man in American legal history who had been the dean of two such premier law schools as Yale Law School and the University of Pennsylvania Law School. He was my teacher at Yale Law School and I had him for Federal Jurisdiction.
We will hear brief remarks, first from Judge Albert Rosenblatt and then from Judge Louis Pollak.
Judge Albert Rosenblatt, New York Court of Appeals
Thank you Judge Becker. Lord Goldsmith and Lady Goldsmith and honored participants. Lord Goldsmith you have encouraged us all. The words are heartening; they are the words of a wise and decent man which underscores the legacy of Magna Carta.
If we were to consult an encyclopedia, and I did, in terms of Magna Carta it might be given twelve words: "issued by King John in June 1215 under compulsion of the barons". Well, yes, we can't deny that the barons were motivated by baronial concerns but Magna Charta has become synonymous with universal human rights.
As an American, I trace my condition to Magna Carta. For us, it is at the root of our republic and it gives us our political heartbeat. Magna Carta, I think, reflected the spirits of a people who began to recognize that no government or sovereign, however much loyalty or fidelity it has gained or even earned, may stand above the people and rule with arbitrariness or caprice.
Magna Carta has come to represent a turning point in the history of free people in their relationship with their governing authority. I am going to a parallel in which relay runners carry a baton and pass it along as they complete their leg of the journey. We can say that like a relay, Magna Carta’s history is marked by four segments:
The first represents the years before 1215 and stems perhaps from our classical notions of natural law as when Antigone looked King Creon in the eye and said that he could not, even as a monarch, deny her brother, Polyneices, a decent burial.
The second, of course, took place between Stains and Windsor at Runnymede. That’s on the 15th day of June 1215 which is to say seven hundred years ago. Antigone may have had an idea but the barons made it happen. True, they had spears and hatchets but they made it happen. Magna Carta’s Article 39 contains the majestic language that has inspired the thoughts of free people and all who aspire to freedom when it speaks of the legal judgment of peers and the law of the land and the Article that no one will be denied or delayed justice. From these words we get our constitutional right to speedy trial and equal protection under the law and perhaps the most miraculous condition of all, rule by the consent of the governed. Magna Carta may have been forced out of King John by the barons but as it reads it is addressed to a much wider class: John by the grace of God, King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to the archbishops, bishops, abbots, earls, barons, justices, sheriffs, ministers and to all bailiffs and faithful subjects. Here he speaks to us and ultimately to all lovers of freedom in the century that followed.
The third leg took place five hundred and sixty one years later in the first few days of July 1776 on this very soil. The torch of Liberty was given over to us, here, rekindled you might say, and it cast its light throughout our fledgling nation. King George III and the others may have parted with it with some reluctance owing to a slight misunderstanding over taxes as Lord Goldsmith has charitably pointed out and I might add to a dispute over some non-decaffeinated tea somewhere in Massachusetts but they surely set the course by giving us our inalienable endowment. We have carried this treasured legacy, but we have not done so alone. As an example to the world we have maintained the flame jointly with our sponsors who visit us here today. Lord Goldsmith and the United Kingdom for which he speaks together our two nations have carried this banner of freedom for over two centuries, arm and arm, through the First World War, to the 1941 Atlantic Charter forged by Franklin Delano Roosevelt and Winston Churchill, to Lend Lease, to Normandy, to the liberation of Europe, to the creation of the United Nation’s Charter and at Nurnberg and today we carry out our heritage jointly in a new era of deadly conflict with those who would destroy the lofty values that have bonded us together. The concept of Magna Carta has found as treasure in this nation's jurisprudence our commitment to due process of law. That commitment epitomizes all that we believe in as Americans, in the values that we share with our British cousins. The Courts of the United States rest on the concept of due process of law and the balance between individual rights and the collective needs of any population to protect itself.
My computer tells me that American Courts have used the phrase due process of law one hundred fourteen thousand nine hundred and thirty seven times but that is only in our reported decisions and then it is only good as far as the figures of this past Monday and I am sure our judges are hard at work yesterday adding more.
When King John acceded to the law of the land he could not have foreseen that the phrase let alone the enlarged concept would be carried across the Atlantic to provide a scaffolding for a new nation and a system of law that mediates between the rights of the individual and the interests of the government.
Nor would he have imagined that this compact with the barons would serve as a model for the world that the government does not own the people it is the people who own the government
The fourth leg is before us and is yet to be run. It represents our future. Over the last seven centuries the world has improved on the promise of Magna Carta. We no longer speak of freedom for a privileged few but for all people who subscribe to the rule of law. Today I feel privileged beyond words to be part of this ceremony of Liberty and so I shall use no more words and conclude with confidence and with optimism that the rule of law which has given us our fiber and our birthright shall continue to light our partnership in the millennia to come. Thank you.
Judge Louis H. Pollak, U.S. District Court for the Eastern District of Pennsylvania
Lord Goldsmith, you are, if I may borrow, and slightly modify, the words of W.S. Gilbert – but not, I hasten to add, the music of Sir Arthur Sullivan – you are, if I may be permitted to say so, the very model of a modern Attorney General. And you do us honor by joining in this celebration of two great legal instruments that both symbolize and are integral components of the long campaign for government of laws, not of men – Magna Carta and the Declaration of Independence.
Lord Goldsmith, you have in your address talked of the cross-pollination of your law and ours – and, as you have noted, the examples of this are many. This is particularly true in the historic realms of the common law that our Justice Oliver Wendell Holmes and your Sir Frederick Pollock corresponded about for half a century. And it is also of course true, as you have pointed out, in the symbiotic relationship between the House of Lords and our greatest common law court – Cardozo’s court – the New York Court of Appeals, the great tribunal so eloquently represented here today by Judge Rosenblatt.
In the realm of public law, however, our courts have tended to be exporters rather than importers. As was pointed out a decade ago by Anthony Lester, QC (now, Lord Lester of Herne Hill) in his brilliant Columbia lecture, "The Overseas Trade in the American Bill of Rights," your courts, Lord Goldsmith, and indeed the courts of other democracies, have read and built upon some of the great liberating decisions of our Supreme Court. Unhappily, however, the Justices of our Supreme Court – with certain illustrious exceptions, such as Justice Frankfurter and Justice Brennan – and, more recently, Justice Ginsburg and Justice Breyer – have until now seemed almost impervious to outside instruction.
But very recently there has been a modest sign that a majority of the Justices of our highest court might, in fact, acknowledge that there was public law in other jurisdictions worthy of attention. On June 20 of this year, in Atkins v. Virginia, in which the Supreme Court held that the execution of retarded persons is unconstitutional, that modest sign appeared. Midway along in a lengthy footnote – footnote 21 – Justice Stevens, writing for the Court, noted that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." And, in making this point, Justice Stevens cited an amicus brief of The European Union. Six Justices joined in the opinion containing this modest footnote allusion to the world community. But three Justices, led by the Chief Justice, announced that in a search for the present American consensus on the propriety of executing mentally retarded persons "the viewpoints of other countries simply are not relevant."
I welcome the fact that a majority of our highest court is prepared to take a more expansive view. To look abroad for instruction is the necessary corollary of trying to explain to the peoples of other lands what we in America are seeking to accomplish. We have thought this the proper course ever since the representatives of the colonies, in Congress assembled, adopted and published a Declaration of Independence. Why did they do so? Because, wrote Jefferson, "a decent Respect to the Opinions of Mankind requires that they should declare the causes that impel them to the Separation."
Lord Goldsmith, your presence here today tells us that our separation is merely geographic – cartographic, if you will. In all things fundamental, we are one.
Judge Becker
Thank you Judge Rosenblatt, Judge Pollock. I hope that all of those of you who haven't seen the exhibit will head right over now and see it. This luncheon is adjourned.