 Mae Hushed Silence, vice-chancelor, Justice O'Connor, Sir David y Llywodraeth, mae Llywodraeth. Mae Llywodraeth wedi'i gweithio gyda'r Llywodraeth. Mae'r gwirioneddau gwirionedd y Llywodraeth Cymru yn gweithio'r Llywodraeth Sir David y Llywodraeth. Mae'r gwirioneddau gyda'r Llywodraeth Cymru, Justice O'Connor, y Llywodraeth Cymru, Yn Gweithio Cymru, oed yn ni'n ddiwylliant y Llywodraeth Cymru yn ym 1981. Ond am ydyn nhw, nid i ddim gwybod i'r iawn o'r amser yma, Mr John Nolan, wedi'u gwiswyl gennariosol y bydd y bydd ymryd yn gweithio'r Llywodraeth Cymru, byddai'n gyrdddogol. Mae ddim yn bach yn Gweinidol, John Mowlin, yw'n ymwneud i'r ystod gyda'r iawn, bod y prysgol yn gallu'n gweithio i'n gweithio i'n gweithio'n gweithio. Mae'n gweithio'n gweithio i'n gweithio i'r Davod, i'r ffaith, i'r ffaith i'r ddeuig i'r cyfnoddolol i'r cyfnoddol i'r cwm angen i'r Gymru. Mae'r ddraethol wedi'n gweld i'r gyfnoddol ym mwyaf, Professor Beatson, So David's own connection with the United States is a long one. He's a frequent visitor there having studied at Harvard in the 1950s. He is a foreign honorary member of the American Academy of Arts and Sciences, a member of the American Law Institute and the holder of honorary degrees from Duke and Dickinson universities. So it's entirely appropriate that our first speaker should be from that jurisdiction. Justice Sandra Day O'Connor brings a wealth of knowledge and experience to her topic. She was educated at Stanford, the university and the law school and then in addition to private legal practice she has acted in an executive capacity as assistant attorney general of Arizona, has held legislative office as a state's senator in the Arizona Senate, elected judicial office in Phoenix, Arizona from which she was appointed to the Arizona Court of Appeals and then to the United States Supreme Court. Having been appointed in 1981 she is now the third most senior member of that court and has been described as its quote ideological center of gravity. It's reported that in the course of her nomination hearings she has asked how she would like to be remembered to which she replied, ah, the tombstone question. I hope it says, here lies a good judge. I trust that she will not think yet presumptuous of me to say that the common consent amongst the American commentators is that her achievement has far outstripped that simple but noble ambition. Before finally introducing her I should also say that Justice O'Connor has said that at the end of her talk she will take questions and I hope that we will take advantage of that very generous offer. But it is with a sense of real honor and pride that I invite Justice O'Connor to address us this afternoon on the title, altered states, federalism and devolution at the real turn of the millennium. Thank you. Well Mr Vice Chancellor and Lord Chief Justice and my Lord Nolot and Sir David and Lady Williams, Professor Smith and distinguished guests, friends of Cambridge, it's my great honor and my great pleasure to deliver the inaugural Sir David Williams lecture. Sir David is, as you know, among the most distinguished members of the legal academy, not only in this country but around the world. His teaching career began at the University of Nottingham, after which he taught at the university that I am told is known affectionately in these parts as the other place. Perhaps you fans of Harry Potter now call it that place which must not be named. Sir David then joined the law faculty at Cambridge later serving as the Ross Ball Professor of English Law and the President of Wolfson College. Sir David has been a path breaker in the fields of constitutional and administrative law. His books, not a public interest, the problem of security in democracy and keeping the peace, the police and the public order are landmarks in his fields and I suspect will be for a long time to come. Sir David's impact however is not confined to the life of the mind. It extends also to the world of public affairs. While enhancing our understanding of democracy, he has demonstrated a passionate concern for the quality of life in this democracy through his public service. He has served on the Royal Commission on Environmental Pollution, the Council of Tribunals, the Clean Air Council and a number of other bodies whose work is significant. Sir David has also excelled as a leader of this university. Not only did he serve as Vice Chancellor of Cambridge, he did such a good job that his term was extended from two to seven years. It's a privilege to be able to celebrate today in this place Sir David's achievements and his indelible mark on learning and the law. It's an even greater privilege to partake of the very first time that Sir David will be honored through this lecture series. The book of Proverbs tells us that a good name is rather to be chosen than great riches. If that truth applies also to an event, I'm certain that the Sir David Williams lecture series will live long and will prosper. I'm also proud to say that Sir David and I have a few things in common. Each of us studied law in the great state of California. Sir David received an LLM from the University of California, Berkeley, and I received my JD from neighboring Stanford. I have also had the pleasure of participating with Sir David in an Anglo-American legal exchange. He and I share a keen interest in transatlantic dialogue between the legal communities of our two countries, which can enrich each other in so many ways. Perhaps most coincidentally Sir David and I share the same year of birth. I'm therefore certain that he will concur heartily with me when I say 1960 was it David? It was a very good year. Speaking of notable years, we're currently in the midst of one. As most people celebrated the putative eve of the new millennium on December 31, 1999, a few sticklers for detail defiantly refused to recognize an event that would not technically occur for another full year. They studiously observed that the first year of any decade, century, or millennium could begin only in a year ending in one. If any of you happen to be among those steadfast guardians of epical purity, I ask for no confession. All I ask is that one who gladly celebrated the counterfeit turn of the millennium, I not be a stock from claiming the privilege of speaking with you now during the will first year of the new millennium. Now imagine the following scene at the turn of the next century whenever you think that precise event will occur. Imagine four business people from around the globe at a table in an airport cafe before dispersing to their respective homelands to celebrate the new year. The conversation soon turns to predictions of how each of their countries will fare in the century to come. An American venture capitalist, a Japanese entrepreneur, and a Brazilian executive offer their partially sunny forecasts in turn. The Englishman is the last to weigh in. When asked his thoughts on the future of the United Kingdom, he replies, I think it's quite a fine idea. Perhaps somebody ought to try it again one of these days. The possibility that a hundred years hence the United Kingdom will exist only in theory may be exaggerated. To some however the only exaggeration may be the notion that it will take that long. It's much too early to tell the long term effects of recent constitutional changes in the UK. What is clear is that these changes are momentous. Scholars have chronicled the late 20th century developments that have resulted in a United Kingdom that is being pulled in both directions. On the one hand, devolution has affected an unprecedented delegation of power to elected bodies in Scotland and Wales. New devolved institutions are also in place in Northern Ireland. There have been calls for greater devolution of power to regions within England, reinforcement of the constitutional status of local governments, and even whispers for the creation of an English parliament. At the same time, UK membership in the European Union is exerting upward force on powers traditionally exercised by parliament alone. Punctuating the complexity of these changes is the fact that the upward pressure of European integration may increase the downward pressure of devolution through the principle of subsidiarity and the enforcement of European Union law. One of the many important uncertainties in the midst of this flux is the role that courts will play in interpreting and enforcing these new arrangements. If the changes underway in the United Kingdom are to be measured so far in meters, then the magnitude of recent events concerning the balance of power among the different levels of government in the United States is more in the way of centimeters. Rather than encountering new frontiers in the United States, the latest movement of the dial there has been mostly toward the restoration of a balance that obtained not too long ago. Nonetheless, federalism in the United States has been the subject of an increasingly vigorous debate in recent years. At the heart of this controversy has been the role of courts in interpreting and enforcing the structural guarantees of our constitution. One American scholar in speaking of federalism has observed that perhaps no other concept saved judicial review has stirred more controversy. If this is so, then it should surprise no one that the combination of the two excites great passions in my country. These preliminary observations on the states, no pun intended, of affairs in our two countries bring me to the thesis of my comments today. Each of our countries is deeply engaged in a debate concerning the proper allocation of power among various levels of government at the dawn of this new millennium. In each case, however, the diffusion of power proceeds from a different premise. In the United States, power originally resided with the people or in the states and was seated upward to a national government of limited authority. In the United Kingdom, power is being devolved from the sovereign parliament of the unitary state to national assemblies and possibly to other regional actors. Now these different premises have produced different historical trajectories and different contemporary challenges. Yet federalism and devolution in our respective countries also reflect many of the same values and thus present many of the same opportunities. Each of our countries, accordingly, may have something to learn from the other. The roots of the present devolution in the United Kingdom lie first in the making of the UK itself. The United Kingdom's coming to be was clearly the product of an evolution, not a revolution. While the contours of an English state had taken shape by the middle of the 10th century, England's precise date of birth is unknown. If only the rest of us could shroud our ages in that kind of obscurity. Wales, Scotland and Northern Ireland became part of today's United Kingdom through events that unfolded over many centuries. The familiar principle of parliamentary sovereignty has long animated the governance of this unitary state. DICE famously summarized the doctrine this way. The principle of parliamentary sovereignty means neither more nor less than this, namely that parliament has under the English constitution the right to make or unmake any law whatever. And further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of parliament. While institutions facilitating local control of varying forms and degrees have also been part of this multinational kingdom, Wales has been unmistakably from the top and the center. Calls for greater self-government by the nations comprising the United Kingdom are by no means an innovation of the 20th century. For example, a question of Irish home rule that gripped the UK during the late 19th and early 20th centuries naturally stirred sentiment for greater autonomy elsewhere. In 1973, the Royal Commission on the Constitution issued the Kilbrandon Report, which recommended the establishment of elected assemblies in Scotland and Wales. A quarter of a century after the publication of the Kilbrandon Report, Acts of Parliament authorized elected national assemblies in Scotland, Wales and Northern Ireland. One of the most salient features of this present devolution is that different institutions have been ordained and different powers devolved for each territory. For example, the Scottish Parliament is a true legislative body with an extensive list of devolved powers. It can pass primary legislation within its areas of competence, has some power to vary taxes and has its own representative office in Brussels. In contrast to the devolution model proposed in the 1970s, the powers reserved to the Westminster Parliament are also enumerated. Like Scotland, Northern Ireland is experiencing both legislative and executive devolution, but with wrinkles there like power sharing because of its situation as a divided society. The order of the day in Wales, on the other hand, is simply the executive devolution. The Welsh Assembly has the power to make secondary but not primary legislation. Its areas of competence are more limited than those of the Scottish Parliament. The Welsh Assembly operates chiefly through a cabinet and is much more dependent on Westminster and Whitehall than the other assemblies. In all cases, the assemblies are subordinate to the Westminster Parliament, which retains supremacy throughout the entire United Kingdom. Many scholars have pointed out that devolution must rest on two seemingly conflicting principles, parliamentary sovereignty and domestic self-government. But parliamentary sovereignty is not, in theory, incompatible with the exercise of some local control. The theoretical reconciliation of these principles lies in the idea that the authority exercised at levels below the central government ultimately derives from and depends on the will of Parliament. The recent changes are consistent with this constitutional theory, but the fit between the theory and the new constitutional reality is a far different question. Devolution is technically a revocable license, not a conveyance and fee simple. But what is legally permissible may be politically impossible. Many scholars have asserted that it's unlikely that Westminster would recall devolved powers without the consent of the National Assembly at issue. Indeed, such an attempt might well be considered unconstitutional in the British sense. We all know what parliamentary sovereignty meant to Dicey, but what will Westminster sovereignty now mean in Edinburgh? What will it mean in Cardiff, in Belfast? If devolution extends to the English regions, would it also have a new meaning in Yorkshire? Will parliamentary sovereignty still cloak the United Kingdom? If so, will it be a coat of many colors? Or will it be like the emperor's new clothes? Given my line of work, one of the issues surrounding devolution that I find to be especially compelling is the role of the courts. As you well know, the source status and character of judicial review in the United Kingdom differ in many ways from the features of judicial review in the United States. Parliamentary sovereignty and the absence of out-and-out constitutional adjudication stand on your side of the Atlantic, while Article III and Marbury v. Madison live on my side of the Atlantic. In practice, of course, the gap has narrowed in recent decades due to developments in the judicial role in the United Kingdom. Recent constitutional changes here raise the questions what effect the courts will have on devolution and just as important what effect devolution will have on the role of the courts. The Devolution Acts expressly assign the courts in the United Kingdom a role in determining the limits of devolution and the powers of the devolved institutions. At a broad level, this role is a familiar one for UK courts. The question whether a devolved body has acted within the limits of its devolved powers dovetails nicely with the type of ultraviries review to which UK courts are quite accustomed. Likewise, at least in the cases of Scotland in Northern Ireland, the judicial review of actions by the UK executive to ensure that there within the powers that Parliament has reserved to Westminster does not require, shall we say, new wine skins. As Lord Falconer put it, these sorts of cases are ones where the court will be adjudicating in a way in which they're very experienced, deciding as a matter of law what the competence of a particular body is. But while the exercise may be familiar, the precise subject matter may present some uncharted territory. Devolution will involve the courts more in the business of drawing vertical institutional boundaries. It remains to be seen how extensive this role will be and what patterns will emerge from the exercise of this adjudicative authority. For example, in the case of Scotland, will the courts construe more broadly the devolved powers or the reserved powers? In Wales, will the courts be swift or slow to find that executive action exceeds the limits of Westminster's primary legislation? And how will the courts approach national assembly action in areas that intermingle both devolved and reserved powers? Just as Parliament will retain in theory the power to alter or resend the devolution arrangements at any time, it can overrule any judicial resolution of a devolution issue that is not to Parliament's liking. Indeed, the very role of the courts in devolution will remain subject to change at the will of Parliament. In other words, wherever the courts draw vertical institutional boundaries, Westminster will still hold the supreme legislative rubber. But there is bound to be a gap between constitutional theory and constitutional practice. The manner in which UK courts have construed primary legislation to vindicate fundamental constitutional rights has received quite a bit of attention in recent decades. While technically abiding within the confines of statutory construction, these decisions sometimes have the flavor of full-fetched constitutional review. Now the Parliament has delegated substantial powers to the national assemblies. It will be interesting to see whether the courts treat these powers in essence as permanently transferred or simply on indefinite loan. I'll now travel across the ocean and back in time to trace briefly the outlines of federalism in the United States. The character of American federalism is also deeply rooted in the way our nation was forged. The framers engaged in extensive debate concerning the appropriate allocation of power between the states and the national government. If the Constitutional Convention had taken place over a Wimbledon fortnight, there is no doubt that questions of federalism would have been right on center court. The framers were gripped with competing concerns. On the one hand, the framers were suspicious of every form of all powerful central authority, which they viewed as inimical to individual liberty. On the other hand, the Articles of Confederation had proven to be too weak a tonic for the achievement of national goals because the central government was entirely dependent on the cooperation of state legislatures. State sovereignty was at the heart of their dilemma. While the framers were committed to the preservation of state sovereignty, it could not be the insuperable obstacle to coordinated action that it had proven to be under the Articles of Confederation. The framers were confronted with the challenge of navigating between the silhouette of excessively concentrated power and the chirribdus of disunity. The framers hammered out a series of compromises, some of which guaranteed an institutional role for the states in the composition of the central government itself. For example, as a result of the Connecticut compromise, each state was given equal representation in the United States Senate. But the framers did not think it would be enough simply to place state hands on the central tiller. The framers instead provided that the central government would be one of limited, unumerated powers, with the states retaining those powers that were not delegated upward. At the same time, the Constitution forbade the states from exercising certain powers that would rest in the central government alone. These principles are the primary ffocrum on which the ultimate balance between state authority and national power rests in my country. The limitation of the central government's authority is inherent in our constitutional design. The 10th Amendment to our Constitution, ratified in 1791, reinforces this design by stating that famous truism, the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people. The framers of our Constitution then established dual spheres of sovereignty, allowing the central government to act directly on individuals in some fields of activity while preserving the sovereignty of the states acting within their own territorial boundaries. Today's central government certainly does not resemble the limited enterprise that the framers of our Constitution envisioned. While some of the expansion is a result of formal constitutional amendments, our country's response to technological and social change accounts for the lion's share of the growth of central power. The framers could not have foreseen our world of technological sophistication and mass communication. They could not have known the Internet, the 747, or biotech corn, any more than they could have envisioned cable television, cloning, or the splitting of the atom. And that is to say nothing of Starbucks, of Napster, or the weakest link. Chiefly, through Congress's exercise of its powers under the commerce and spending clauses aided by broad judicial interpretations, the sphere of federal activity in my country has greatly expanded. The ability to adapt to new circumstances within the same constitutional framework is testimony to the wisdom of the framers of our Constitution. But, while the framers prudently designed a flexible system, they did not adopt principles without limits. Nor did they neglect to design institutions to enforce those limits. Marbury v. Madison confirmed not only the power of judicial review generally, but specifically the competence of courts to enforce the constitutionally enshrined balance of power among the defendants. Yet these first principles have come under increasing attack. Some have encouraged the judiciary to effectively abdicate its role as an institutional border patrol under the appealing label of the political safeguards of federalism. Under this view, enforcement of the federal state balance should be left entirely to the political process in which the framers have already guaranteed a role for the states by representation in Congress. In my view, both the political and the judicial safeguards of federalism reinforce the federal state balance. There is, in my view, ample room for political accommodation within the parameters of our system. Just as the states do not regulate conduct within their borders to the fullest permissible extent, Congress does not always legislate to the limits of its constitutional authority. But the courts are nonetheless obligated to remedy the occasional transgression of constitutional borders in cases before them. In discharging this function, the court should try to emulate a prudent umpire who allows the contestants to play hard between the lines, but takes swift and sure action when the lines are crossed. Line drawing is the essence of the law. The difficulty of the task is no cause to shrink from it. As my colleague Justice Kennedy has said, the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scales too far. Recent debates in the political arena in the United States over such issues as welfare reform, energy policy and the future of health care testify to the ample latitude that the national and state governments have to negotiate their respective spheres of action. It is just as much the role of the courts not to intervene in the legitimate machinations of the political process. In a particular action, whether the result of political compromise or unilateral political will violates the constitution, judicial intervention is warranted. This abbreviated discussion reveals several substantial differences between devolution in the United Kingdom and federalism in the United States. These and other differences have been of interest to students and scholars of comparative law. Federalism represents a true division of power, whereas devolution is simply a delegation. While each of our countries is a union, there are two spheres of sovereignty in America but a single realm in the UK. Our country's names reflect this difference. Both begin with United, but the second word is plural in one, singular in the other. In the United States, the power of actors away from the center is apostolate. In the United Kingdom, it is a wholly dependent proposition. These facts of course represent much more than conceptual footnotes to history. Rather, they influence the constitutional and political realities of the vertical allocation of power in each country. For example, residual state sovereignty in the United States means that even in an era where the exercise of national power is often the instinctive norm rather than the deliberate exception, the federal government is limited in the extent to which it can commandeer, override, or displace the states. Despite the exponential increase in the pages of the United States code ever since the New Deal, the fact remains that the vast bulk of our law is state law. In the United Kingdom, what parliament have devolved, it can take it away, so they say. Even if the political realities would make it very difficult for parliament to roll back significantly the present devolutionary arrangements, the prospect of rescission is a part of the constitutional and political backdrop against which the new devolved institutions operate. The territorial units that comprise the lower level of government are defined on a different basis in each of our countries. In the United Kingdom, each of the units to which substantial power has been devolved has a distinct national identity. In the United States, although each state has its own ethnic mix and certain cultural flavors, the lines are strictly geographical. The multinational as opposed to merely multiethnic composition of the UK may create centrifugal pressures to a degree not present in the United States. Indeed, some see devolution as a halfway house on the road to full independence. For example, a Scottish National Party spokesperson recently said, rather than killing nationalism stone cold dead, we see devolution as a stepping stone toward independence. Others, however, view devolution as a safety valve for the release of nationalist pressures to preserve the integrity of the union. For example, the UK Foreign Secretary said recently, by recognizing the United Kingdom's diversity, devolution has guaranteed its future. While it may be a paradox to say that one can fasten a union by loosening the political ties that bind it, it is a paradox in which many here place great faith. Further, devolution in the United Kingdom is asymmetrical, while federalism in the United States is almost perfectly symmetrical. Asymmetry in the United Kingdom is enabled by the fact that power is flowing from the top down and results from the interplay of historical forces and present demand. In the United States, asymmetry is practically unheard of and likely even unthought of. In large part, symmetry of powers among our states results from the fact that state powers are not enumerated and the only session of power is upward. While there may be asymmetry of influence among the states in national affairs, each state regulates within its own borders on equal terms. Even though roughly 170 years separated the ratification of the constitution by the first state, Delaware, and the entry into the union of the 50th state, Hawaii, each state entered on an equal footing with the others. While many extol the virtues of asymmetrical devolution as the most logical response to the disparate situations of nations within the United Kingdom, others believe that asymmetry makes the present arrangements unsatisfactory and inherently unstable. It remains to be seen whether asymmetry remains the rule or a pattern of convergence will emerge. For example, will Wales look at the Scottish Parliament and want the same legislative and tax varying powers for its own assembly? And if the Welsh keep up with the Scots, will the Smiths want to stay a step ahead of the Joneses? Another important dimension of the asymmetry question is the status of England and the English regions. Many of the concerns driving devolutions such as perception of excessive centralisation and remoteness from the decisions that affect everyday lives apply to England as well. As a result, there have even been calls for greater devolution of power to regions within England. The role of courts in policing the borders between the different levels of government is a matter of longer standing and greater certainty in the United States than it is in the UK. The political and judicial safeguards of federalism exist alongside each other in the US. In the UK, by contrast, judicial protections are ultimately subject to political will and Parliament has the final word. Recent UK experience attests, of course, that neither Article III nor Marbury versus Madison is a prerequisite for the emergence of meaningful judicial review. Conversely, neither guarantees freedom from controversy when courts perform their vested role. But the lack of independent moorings constrains the ability of courts to be institutional referees, especially when those institutional boundaries are drawn and redrawn through the ordinary legislative process. The Devolution Acts provide a textual basis for limited judicial review, but they do not authorize full-fledged constitutional adjudication. It remains to be seen whether the courts here exercise their interpretive powers in a manner that bolsters and entrents devolution. It also remains to be seen whether the adjudication of devolution issues in turn bolsters and entrents an independent role for the courts in the constitutional structure. Our two countries also inherit different challenges from the last centuries' developments concerning the vertical allocation of power in each country. The United States is confronted with the task of preserving its constitutional structure as each generation grows accustomed to a higher baseline of central government activity. The UK, on the other hand, is engaged in the process of forging new constitutional arrangements. As Sir David has noted, the questions do not end with devolution. In 1997, the present government's comprehensive program of constitutional reform emphasized devolution and elected mayor for London, in cooperation of the European Convention on Human Rights, freedom of information, and a referendum on the voting system for the House of Commons. In March 1999, Sir David noted that the following matters should be added to that list. Possible changes in the role of the monarchy, the evolving position of the United Kingdom in Europe, the peace settlement in Northern Ireland, and a new institutional link with the Republic of Ireland reform of the House of Lords, major constitutional challenges for the courts of law, a readjustment in the work of local authorities, and a shift in the balance of power between Whitehall and Westminster. Now that's quite a list, and some of these changes are already a reality in whole or in part. Not only are many of these changes significant in themselves, but the interplay and integration of these changes will pose major challenges as well. Finally, while the United States must manage centripetal forces that threaten to erode the rightful role of the States, the United Kingdom must deal with centrifugal forces that make its unitary status long an axiom of British constitutional law an uncertainty. A number of scholars have already noted that, especially in light of devolution, it's more accurate to refer to the UK as a union state rather than a unitary state. Now there are suggestions that the UK might even proceed toward what Blackstone deemed solicism in politics, the co-existence of co-ordinate sovereignty in heaven, help us a federal system. Some even say that devolution is erode with no logical stopping point short of independence. Well, a picture I've painted would be incomplete if I failed to at least mention an important third layer of institutions. While the effective membership in supranational organizations on national sovereignty crops up from time to time in the United States, the question has nothing like the immediacy that it has in the United Kingdom. The European Union, as it's presently constituted, is a challenge to the traditional taxonomy of governmental structures. The consensus is that it is neither a confederation nor a federal system, but rather a construction sui generis somewhere between the two. In comparison to American experience, the centralized institutions of the EU are not so weak as the Articles of Confederation, but not so potent as the national government created by our constitution. As a union, the EU is more like the United States than the United Kingdom in that the constituent sovereign states seed power upward to the EU, a creature of their own creation. But like devolution in the UK, it is yet unclear what type of creature will evolve from the process. Just two weeks ago, the newspapers reported a German proposal that would strengthen the European Parliament and invest the EU with more of a federal structure. As you know, the assent to such a proposal would be far from uniform at this point. One of the many factors that will likely influence the structural path of the EU is the practical meaning accorded to the principle of subsidiarity. Subsidiarity is perhaps one of the most elusive, but also one of the most crucial words in contemporary European political discourse. In 1992, Jacques Delure offered a prize to anyone who could define the term. Now, I don't know if that prize has been claimed yet, perhaps it's not too late to submit your entry. The essence of subsidiarity is that the non-exclusive functions of the EU should, where possible, be performed by or within the member states. The principle of subsidiarity serves many of the same values as other structural principles that enable the exercise of power at lower levels of government. The EU's adoption of the principle of subsidiarity also shares common tactical roots with our notions of federalism and with your notions of devolution. The federalist structure of the United States Constitution was designed in part to get the states to accept a stronger central government by assuring meaningful residual state sovereignty. Devolution in the United Kingdom is often considered a measure to ensure the continuity of the Union by allowing greater self-government within the limits of the Union. Likewise, subsidiarity has been referred to as the word that saves Maastricht and member state morphine for the painful loss of sovereignty. The principle represents an accommodation designed to ensure acceptance of the EU among national governments and the citizens of each member nation by preventing an over-centralization of power at the EU level. The success of the EU may well turn on whether subsidiarity strikes a sturdy acceptable balance or whether it's merely a drug that wears off. Just as with devolution, the EU will in theory diminish UK sovereignty in only that measure which Parliament chooses. But also, like devolution, the reality may not be so cut and dried. As British judges and scholars have noted, Parliament chose to relinquish some of its sovereignty and subject the UK to European law when it passed the European Communities Act of 1972. The ramifications of that decision continue to unfold today. And while there is some political opposition to the UK's further integration into the EU, so too are there political obstacles to pulling back even as the jurisdiction and power of the EU grow beyond what Parliament may have envisioned in 1972. The efficacy of the principle of subsidiarity in ensuring that substantial authority will be exercised at the member nation level may play a big role in determining the acceptance of EU prerogatives among UK institutions and citizens. Much attention has been devoted to the role that the European Union courts will play in the new Europe. As the factertain case demonstrates, the impact of the EU on domestic courts may be even more significant. The UK's 1998 incorporation of the European Convention on Human Rights enables the courts here to declare acts of Parliament to be incompatible with EU rights. While the Human Rights Act does not empower the courts to invalidate or dis-apply primary legislation, a declaration of incompatibility combined with political pressure and the fast-track procedure for parliamentary reconciliation may have the same effect in practice. The EU provides not only a new source of rights, but also a new impetus for domestic courts to assert a greater role in enforcing preexisting rights. These dynamics will require institutions within the UK to adjust and find new accommodations with each other. Well, centralized institutions undoubtedly have a crucial place in today's complex interconnected world. The slogan Global Solutions is not just the fancy of Madison Avenue, but this does not mean that we should reach unthinkingly for the highest shelf when we search for cures to some of the deepest societal ills. The intricacies of modern society, perhaps now more than ever, also demand local decision making that is flexible, responsive and personal. As salutary, as national and supranational bodies can be, we must not let their potential obscure the simple truth that government often governs best when it governs closest to the people. As a Supreme Court justice, it's my duty to enforce the structural guarantees of our own constitution, regardless of the utility of adhering to the framers' design in one instance or another. As our court said in New York vs. United States, our task would be the same even if one could prove that federalism secured no advantages to anyone. It consists not of devising our court system of government, but of understanding and applying the framework set forth in the constitution. Nonetheless, as a citizen of my country, I recognize that it is a happy incident of our country that vibrant state and local institutions are in fact of great value in our nation. Devolution in the United Kingdom, though cut from a different mold, reflects many of the same values, and therefore many of the same opportunities. I want to end my remarks today by mentioning some of those common values and shared opportunities. The exercise of power at lower levels of government promotes democracy and accountability. Individuals have a greater say in the decisions that affect their lives. The decisions are more likely to reflect local preferences, and an individual's voice and vote are generally more effective in bridging the inevitable gaps between policy preferences and policy outcomes. These concerns are arguably the principal driving forces behind evolution in the United Kingdom. As the post-war expansion of central government functions increased the distance between individuals and their government, the democratic deficit, which is inescapable to some extent in any republic, became more and more acute. This problem especially affected those areas where the election results are not aligned with the composition of Westminster and Whitehall. As parliament delegated more functions to the executive branch, while keeping them at the national level, accountability diminished and government seemed even more remote from the people. Devolution aims to reverse these trends. From a process perspective, it seeks to enable meaningful self-government by reposing power closer to the citizens. From a substantive standpoint, it's hoped that devolution will lead to a better fit between local preferences and policy results. Of course, the exercise of power at lower levels of government does not in itself guarantee democratic accountable governance. There are a lot of other variables such as real electoral choices, civic engagement and openness in government. But the lower locus of power may fertilize the soil so that these elements will flourish as well. Devolution and federalism also hold the promise of more efficient, responsive and creative government. Comparative efficiency probably comes in second to democracy and accountability as a recurring theme in the discussions of devolutions driving forces. In areas where centralized government may prove cumbersome, smaller units of government can deliver services with greater effectiveness and flexibility. As Justice Brandeis, formerly a member of our court, observed of our system, each state may, if its citizens choose, serve as a laboratory in order to try novel, social and economic experiments without risk to the rest of the country. The framers of the American Constitution saw the diffusion of power among different levels of government as a bulwark for individual liberty. The framers embraced federalism not just to preserve state sovereignty as an end in itself, but to preserve individual liberty. This idea does not figure nearly so prominently in your devolution debates. Individual liberty is perhaps the area where our respective countries have employed the most divergent institutional means to achieve similar successes. But in a world where vigilance is the price of liberty, there are always opportunities to shape our institutions in ways that produce government even more solicitous of each person's natural right of liberty. Finally, devolution and federalism promote a stronger sense of community and of shared purpose. When meaningful decisions are made through democratic processes at levels close to us as citizens, we do have a greater sense of responsibility for those decisions. We're challenged to be not just spectators on the sidelines but active stewards of the heritage and promise of our regions, our cities, our towns and our neighborhoods. We learn the habits of democracy and citizenship, not by watching but by doing. The common enterprise of self-government can lift us beyond our own self-interest and sources of division as a means of seeing and serving the good of all. These values are not unqualified and aren't without trade-offs, of course, and while there may be widespread agreement on the importance of the values of devolution, opinions vary on the success of devolutions so far in achieving these goals. These returns are very early, and the saying that devolution is a process, not an event, has become almost a mantra. The future shape and success of it, quite appropriately, depend on both territory-specific variables and system-wide factors. Perhaps more than anything, the future of devolution depends on the response and initiative of the people themselves whose welfare is the supreme end of democracy. Whatever path devolution takes in the United Kingdom, the experiment is assuredly rich with possibility. While great uncertainty may make the experiment seem more like a gamble, risk is opportunities constant companion. Democracies throughout the world, whether budding or in full bloom, should take heart, I think, and take note as one of the world's greatest democracies, challenges itself to realize more fully the vast promise of democratic governance. And I wish all of you here the very best in this timeless endeavor. Thank you.