 Fel ydych chi, dweud i chi. Fe yna'r Gymru Julia Abhina, ac Argyrchu Fe Gwyrddol'r Sechartriadau yw Llyfrgell Ynysgwyl Cymru. Fe ydych chi'n gwirionedd, mae'n arweinydd am y cyfnodau sydd y cyfrannu ym mhugiau Cyfrannu. Cyfrannu Cyfrannu yn y ddweud y lawrfaen yw'r cyfrannu sydd yn cyfrannu Yr ysgol Cymru, mae'r cynnig yn cynnig ar gyfer iawn i gymryd Cymru. Cyfrannu Cyfrannu yn cael cyfrannu gyrwyddoch yn ysgrifennu ac mae'n gweithio'n gweithio'n gweithio'n gweithio. Felly, mae'n gwneud i'ch gweithio'n gwneud i'r sefydliadau gyda'r gyffredinol, y Professor Hale Brostam. Hale mae'r profesiol y Llyfrgell, yn y ddweud o'r llwyffol yn y Llyfrgell Cymru, yn gyfyrddol hefyd i'r Llyfrgell, ac mae'n gweithio'n gweithio'n gweithio'n gweithio, ac mae'n gweithio'n gyffredinol yn gyfrydol. Thank you. It's such a pleasure to be here, that the invitation one gets from students are the ones I cherish by far the most. So it's a privilege to be here, to talk to you about law in contests. And as Julia mentioned, I'm a professor of law in humanities, and that means in practice that I teach 50% in the history department, where I do American history, American studies, The other 50% in the law school where I teach cultural law, that part of the law, and that part of human rights that deals with culture. This is how I met Julian because I teach a summer school on this to which this coming summer you're all culturally invited to apply. And I teach human rights as a whole in law and literature and law and humanities. So I'm kind of split into two places at the University of Copenhagen. What got me interested in human rights in the first place was the role of law in American culture and American society. My background is in American studies. I did my PhD at Yale University in American studies. So I'm going to be the historian today. That's my hat today. What got me interested in law in the US in the first place was the question of why it is that so much of American politics seems to take place in or around ports. That it's a legal vernacular, it's a right talk vernacular or discourse that's often used. So why is it that the Constitution is referred to in American politics keeps coming up in American politics all the time? That's what I'd like to talk to you about today. Let me share just a couple of examples with you from the current American political situation. And I was saying to Julia just before we came in here that my talk is almost dated even before I begin because things are happening on a daily basis. Those of you who follow American politics will know this. Now in August 2018 CNN politics wrote Trump is powerless as his legal fate spins out of his control. And I think it's only fair to say that things have gone from bad to worse for poor Mr Trump ever since. The media have been full of the investigations into his harsh money payments. Think Stormy Daniels, the porn star for example. And also the possible tax evasion charges claims of outright fraud concerning his family as many real estate holdings have been in have been covered and much talked about. But it's the possible ties between his presidential campaign and Russia that have been dominating headlines and that are still dominating headlines and that we hear about every single day in the press. As you probably know US intelligence agencies believe that Russia tried to sway the election in favour of Trump. And since May 2017 special counsel Robert Mueller and his team have been investigated whether Trump or anybody involved with his 2016 presidential campaign did in fact inspire with Russia. If they did so it would be a federal crime. The people you see here are some of the people involved. There's ex national security adviser Michael Flynn. There's adviser George Papadopoulos. Both of them have admitted to lying to the FBI about meetings where they let go between for Russia. Two other key figures are facing jail terms right now. From the special counsel investigation Michael Cohen is one of them. He's a former lawyer and somebody who was working for Trump. He was in a congressional hearing just the other day. Maybe you've read about this but he's all over the media right now. And he's admitted to lying to Congress about his ex boss' business dealings with Russia. And according to special counsel Robert Mueller with whom he had been cooperating former campaign chairman Paul Manafort who is at the head here for Wicked lying to the FBI about his work in the Ukraine. In addition Trump adviser Roger Stone was taken into custody just in late January so only a few weeks ago in connection with the hacked email scandals that he's accused of having hacked of helping Russians hack into the Democratic headquarters and into to find dirty stuff on Hillary Clinton also. And finally 12 Russian military officers have also been involved or have been indicted for hacking and releasing the emails of Democratic campaign organizations all to interfere with the 2016 presidential election. So what about the president himself? Well since Trump fired first the man leading one of the investigations ex FBI director James Comey and then also fired Jeff Sessions as attorney general. There are questions being raised as to whether the president has obstructed justice. Trump himself repeatedly says that here he is with Robert Mueller you've probably seen his face before. But Trump repeatedly says that this whole Russia thing is just a witch hunt. But whether or not this is indeed the case there's also Trump's emergency declaration after the Congress wouldn't let him have the money to build the wall between the US and Mexico one of his prime campaign promises. And in mid February Trump then said that he will declare a national emergency and reallocate some eight billion dollars to build the wall after all. Very soon after this 16 American states sued to stop Trump's from Trump from using his emergency powers to build this wall. And if as if that weren't enough there's also talk of impeachment there's talk of enacting the 25th amendment to the Constitution and there's talk much talk of Trump's appointments both to the US Supreme Court and to other federal courts. So what is it that's going on here? Why is it that all of American politics seem to take place in a legal vernacular in and out of the courts? Why are all these fights against Trump led in courts of law by lawyers? To answer this question or these questions I wanted to take you on a brief historical tour of American history and culture. So these are some of the issues that I want to touch on. American exceptionalism and law, the US Constitution, which is a secular Bible to many Americans. Judicial review, the whole notion of a concept of judicial review and the role of law in American history and culture. Law as a possible cultural blue in a multicultural context. The issue of rights talk and American identity then if there's time a bit about law versus politics. And finally I want to finish go back to Trump's fight against the Congress. I want to approach the question of why the US Constitution is constantly referred to in US politics by looking at one of the reactions to Trump winning the presidency in 2016. This one is Richard Stengel in the Atlantic magazine. He was undersecretary of state for public diplomacy and public affairs under Obama. And according to him January 26, 2016, which was just after the inauguration of Trump, he wrote in the Atlantic in an article called the end of the American century. That the country's role as a global model and guarantor of freedom and rule of law was now being brought to an end by Trump. That the American century was a term of pride for many Americans and that it represented the flowering not only of American power, but more importantly of American values. All of that he said seemed to have ended beginning last Friday, which was the day Trump was inaugurated. The American century he finished, rest in peace. Now the concept of the American century was coined by Henry Luce, who was the founder of time and other magazines and quite a famous publisher of the last century. In on February 17, 1941, he published a now by now iconic article called the American century in life magazine. This was before the US joined the Second World War Monday. His argument was that the US had been isolationist for far too long and that the time had now come for the US to assume its rightful place is a much more active power in the world. He talked about America as the dynamic center of ever widening spheres of enterprise of America as the training center of the skillful servants of mankind. America even as the good Samaritan, but most importantly America as the powerhouse of the ideals of freedom and justice. He finished, he concluded, we are the inheritors of all the great principles of Western civilization. Now what he did here was to tap into notions of American manifest destiny and American exceptionalism. Has any of you done anything of the US? Do you know what these mean? You probably have as a Canadian. As a general problem, yes, I don't know if I can describe it, but I just view as being a problem and have the US working its eyes on it. So manifest destiny also meant that the US had a very special mission which was to give to the rest of the world American values. And that America was exceptional meant exactly that the US was different from all other countries. It had a different path, it had a different mission. It was a city upon the hill, as was said by the first governor of Massachusetts, leading light that would shine for the rest of the world. So he tapped into all these thoughts that were already there in American thinking in saying that we are the inheritors of all the great principles of Western civilization. Historians have been trying to discredit this for a long time, especially European historians, for saying that each country has its own exceptional path. It's not true that America is different and it's definitely not true that the US should not think itself better and different from anybody else. So the trend right now in history is toward global history. We're all in this together and we all have a path that is similar. However, to the extent that we can still talk about American exceptionalism, I am among the people who've argued, then this exceptionalism has a lot to do with law. I made that argument in my first monograph called Legally Speaking that came in 1999. When 9-11 happened a couple of years after that, the American Bar Association at the initiative of Anthony Justice Kennedy, who you know withdrew, retired in last summer. But at his suggestion, the American Bar Association decided to further what they called a dialogue on freedom. It was an attempt to engage pupils and students in colleges and high schools about what it meant after 9-11 to be an American. And the American Bar Association asked whether they could use a quote from my book Legally Speaking, which had come just a couple of years before that. And of course, I gladly said yes. They wanted to use it as a so-called starter in that part of the dialogue on freedom, which concerned American identities and constitutional values. So the idea was then to have the students read these starters and then engage them in dialogue on them. It's no longer available, this dialogue on freedom on the American Bar Association website, so all I have are a couple of old slides. But this is what it said on that slide, that in terms of American identities and constitutional values, how do we understand ourselves and how does the law define us as Americans? This was right after 9-11, mind you. There were four starters. The first one was an excerpt from Alexis de Troffville's Democracy in America, to which I'll come back. And Arthur Schlesinger, a famous American historian, his book What is an American? And then starter number two was the text of the Pledge of Allegiance. Starter number three, the author of Allegiance to the US and then an excerpt from my book. So you can see that I was an excellent company here. This is me in a much, a younger version. You could then click on each one of the starters and the quotation from my book that the students were asked to read and then discuss was exactly about that. How the law, the importance of law in American history and for any discussion of what it means to be an American. And the importance, the centrality of legal discourse in American history and culture. Now it is the constitution perhaps along with the 1776 Declaration of Independence that is seen as embodying, as giving expression to the ideas that were mentioned in the loose text, freedom and justice. And the constitution, I think it's only fair to say, really is a secular Bible. It is mentioned over and over again plays a very special role in American ways of thinking and in American politics. It came into force in 1789 and it originally comprised seven articles that outline the national frame of the government. It has been amended 27 times only since, including the Bill of Rights, which are the 10, the first 10 amendments. It's often called a system of checks and balances and the major principles are these. And I would like you to pay special attention to the separation of powers issue, which is what Trump's present fight with the Congress is all about. Now the judicial part of the government in the constitution is outlined in Article 3, not Article 1, which concerns the Congress, outlines the two houses of the Congress, not in Article 2, which is about the executive branch of the government, but in Article 3, which talks about the judicial power of the United States. What it says there is also that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior. The thing is that you cannot, there is no mandatory retirement age. So a couple of the present justices are actually into their 80s and all Democrats and the URs are ffervently hoping that judge Justice Ruth Bader Ginsburg is not going to die until we have a Democratic president. So you can stay forever until you're carried out basically, there is no mandatory, as long as you're in good standing, as long as you behave yourself, whatever that means. Now Alexander Hamilton, one of the founding fathers, said that or thought that the judiciary was not just, there isn't too much here, was not just the last but also the least branch. The constitution for example gives the legislative and the executive branches certain rights that the judiciary doesn't have. And Hamilton put it in this way that it proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack the success either of the other two and that all possible care is requested to enable it to defend itself against their attacks. So not just the last of the three branches but also the least important. Hamilton manifestly was not right. This is not what happened at all. Today it's front page news when a new justice is appointed. Some of you may remember the Brett Kavanaugh hearings in the fall where Christine Blasey Ford came forward and actually accused him of sexual harassment. In my opinion, Trump's most important legacy is also one of his campaign promises, namely the two Supreme Court justices, the two justices put on the Supreme Court as of yet. If he gets another four years it may be two, at least two more. But also the federal justices put on the 12 appeals courts because they hand down decisions in about 60,000 cases every year that go no further, much more, many more than the 80 or so that actually go to the Supreme Court. So that's going to be Trump's major legacy is the courts. Presidents appoint judges, but they are then subject to hearings by the Senate and this is the Brett Kavanaugh hears, a photo from him from the Senate hearings. So again a system of checks and balances where something happens in one branch but is then checked or allowed by another one. It's a very, very important obligation and power of the Senate, these hearings as a whole. And this is something that Trump and the Republican Party know, but I think the Democrats have not yet realized the importance of the US courts. Since the 1980s a whole network of activists and organizations has worked very, very hard to avoid the kind of disappointment that they felt after certain Republican appointees. Warren Berger, sorry Earl Warren was one of them, Justice Kennedy was another, because they proved much more moderate, much more liberal once they got on the court. And groups such as the Federalist Society, the Heritage Foundation have for years sought to develop a whole new generation, groom a new generation of younger legal conservatives who would go into government and then fill out the lower levels of the judiciary. The idea was to groom potential candidates for the Supreme Court long before vacancies even arose so that Republican presidents would have a whole list to take from. No one wanted any more surprises. Trump made a big deal out of this during his presidential campaign again and at the appointment first of Neil Gorsuch a couple of years ago and then Brad Cavanaugh enabled him to honor one of his most important promises during his campaign to put conservative jurists in the top courts of the country. President said for four years as you know at the most aid and so the appointment of justices, federal judges is a major way, the way of continuing your political influence. So this has enormous power. And what is it then that gives the Supreme Court such an extra order that branch of the government such an enormous power it is judicial review. The power of the US Supreme Court shall review laws, actions coming from Congress and the President to determine whether or not they are in fact constitutional. This is part of the checks and balances and a way of ensuring the separation and the balance of powers. Interestingly enough, the power of judicial review is not mentioned in the constitution itself. It comes out of a very important, very famous 1803 decision called Marbury versus Madison in which the Supreme Court simply took it upon itself to say we are the ones who interpret the Constitution, not the Congress, not the President. Originally the founding fathers thought that this ought to be Congress or the President, not the courts, but the Supreme Court took that power upon itself. It said in the decision that it's infantically the province and duty of the judicial department to say what the law is. So here we have the beginnings of judicial activism and of the Supreme Court as a very, very powerful political actor. It wasn't really used for the first many years. It was used at the state level, but not at the federal level, really until Warren Burger became Chief Justice in 1953. He's one of the examples of a Republican, again a Republican justice who was, he was a fairly conservative governor in California but was then appointed to the Supreme Court by Eisenhower and turned out to have a social conscience. So judicial activism really became strong with Earl Warren and Eisenhower is rumored to have said that's the worst goddamn mistake I ever made was to put this what he thought solidly conservative governor of California on the Supreme Court. This is the kind of thing that Republicans are trying to avoid in the future with the federalist society and others. In his famous book that you may know, Ronald Dworkin's Lost Empire from 1986, Dworkin describes the importance of judicial review I think in a very nice way. The Supreme Court has the power to overrule even the most deliberate and popular decisions of other departments of government if it believes they are contrary to the Constitution. And it therefore has the last word on whether and how states may execute murderers or prohibit abortions or require prayers in the public schools on whether Congress can draft soldiers to fight a war or force the president to make public the secrets of his office. When the court decided in 1954 that no state had the right to segregate public schools by race, it took the nation into a social revolution more profound than any other political institutions has or could have begun. So just one good description I think of how important judicial review has been in American history. There is, as a matter of fact, a long and very interesting history to this. The power of law is deeply, deeply embedded in American thinking and American history. Here's Abraham Lincoln from 1838 actually talking about the reverence of the laws for the laws and that he hoped that that would be the political religion of the nation, nothing less. At the same time, a young French aristocrat, he was, I mentioned him before, Alexis de Togville was traveling the US. He was about your age in his early 20s and he was interested as a European aristocrat to see what this newfound thing called democracy was all about. Was it something that the Europeans could learn something from? He ended up writing one of the most important books on American society and politics called democracy in America. When I was a graduate student at Yale, if you studied, if you were a graduate student of political science, you had to start to start by in your first year to do an exam on Togville. I don't know whether that is the case today, but it was considered an iconic book. Just think about it. 1200 pages, your age traveling around here, it's amazing and it's still, we read it still. One of the interesting things that he said was, he said many, many different things obviously in 1200 pages, but one of the things he said is that there is hardly a political question in the United States which does not sooner or later turn into a judicial one. So he was unto this thing about Americans that politics, culture, economical issues, whatever you call them, they're all discussed in this legal vernacular, in this legal discourse and they turn into judicial issues. That's the way Americans fight. And one other interesting thing about Togville was that he didn't obviously in a democracy there was no aristocracy left, but to the extent that there would be one, it would be law and lawyers. And one of the things that the founding fathers were always afraid about in this new democracy was the power of the masses. Would the masses get too much? Would they run amuck? So Togville was speculating that the law and lawyers would be a tempering, the legal profession is qualified by its attributes, he says, even by its faults to neutralize the vices inherent in popular government. When the American people are intoxicated by passion and they get carried away, then the law is there to stop them. Okay. Legal scholar David Ray Papp here I think has put it very well that as Americans find and construct meaning in their culture, they're more likely than others to use law, legal premises and legal images to guide them. I think that's a very good way to put it. To the issue of law versus politics, about two thirds of the members of the American Congress are lawyers. So any political career starts in law school. Mary Ann Glendon, who was at the Harvard Law School, once coined the phrase rights talk to talk about the way in which people, the discourses in the US often end up as a discourse of someone's rights versus someone else's rights. I don't like that. She preferred the European political discourse to this. But what it boils down to is Americans themselves will say we are a constitutional democracy, we're not a parliamentary democracy, we're a constitutional one. And the one difference is judicial review. Michael Ignasciuk once said that, who's a famous human rights scholar, once said that parliamentary democracy without judicial review is ethnic majority tyranny. So for the Americans, the way to balance the interests of the majority with those of minorities was judicial review. And to me, the interesting question here is, do rights trump politics? Are there fundamental rights that a majority shall never be able to vote away? This is what most Americans would say. In my country, there is no way that judges will ever do judicial review. It's happened once in 1999 and it will not happen again. I co-teach a course with a colleague of mine where we teach, oh, we have a course for Danish, a master class for Danish judges. And there is no way, they find it deeply, deeply undemocratic. They do not like the American way whatsoever. Politics is politics and law is law and we should not have lawyers make politics. It's a long discussion that we can back to if you think. Okay, I wanted to just return in conclusion to Trump and all his little troubles. There are 16 states, as I mentioned, a coalition of 16 states who are now, who now want to block Trump from building part of the border wall with redirected funds, funds that were allocated by the US Congress for something else. They're saying this is a user-patient and executive power. This is simply all wrong. It's unlawful. It's unconstitutional. Trump has invoked his authority under the so-called National Emergencies Act of 1976, where the constitution allows broader grants of discretionary authority to the president in matters that relate to foreign affairs. Ffarrs. What we're all waiting for is the famous Mueller report. People say, the rumor has it that it's just about to come up, the special council report. He's been working on it on Mueller since 2017, and it's just about to come out. What's going to happen when it does? It's going to be brief, probably, but it can be used, people think, in many, many, it's not necessarily a disadvantage. His mandate is limited also. He was only asked to look into criminal activity and counterintelligence matters surrounding Russia and the 2016 election, not a wider thing, but only this. The thing is that President Trump has also publicly criticized dozens of people's and Twitter's and all kinds of things. This is from the New York Times, where they count nearly 1,200 attacks as part of a strategy to beat back the investigation's attacks on Mueller and his team. So this has opened him, people say, to possible obstruction of justice charges. Other issues, just very briefly, is invoking the 25th amendment. This is an amendment that goes back to the, after the death of the President Kennedy in 63, and it provides the procedures for replacing the president or the vice president in the event of death removal, resignation or incapacitation. It was first discussed as an option after Trump had fired them, FBI director James Comey, in 2017. But it's been repeatedly talked about now. Elizabeth Warren, who was one of the Democratic presidential candidates or a senator from Massachusetts and a former law professor at Harvard, has said that it's about time now that the Trump Cabinet starts looking into this. They have a constitutional responsibility to invoke the 25th amendment if they believe that Trump cannot perform his duties. It's not likely to happen. What may happen instead is an impeachment proceeding. And the guy in the picture is a billionaire called Tom Steyer, who's leading a campaign to push high-profile Democrats, including House Judiciary Chairman Jerry Nadler, to investigate Trump, and it's happening as we speak. Now, all of this is going to be interesting to watch, and we can't be sure of what will happen. But one thing we can be sure of is that a legal constitutional discourse is going to be used in all of this. Is there too much law and legal discourse in American politics? Many of us probably would say yes, maybe. But Americans themselves are rather happy in spite of all their complaints about the law. They would still say this is a European-style king. It's an old New Yorker cartoon, and you have a European-style king sitting on the throne with two guards in the background, one saying to the other, it's either this or a country-run bylawyers. So I think most Americans would say or take the country-run bylawyers. The most reasoned is my final slide. The most reasoned example is from a New York Times article by Thomas Friedman from two weeks ago where he said, American kids and American schools should teach American kids two codes. One is computer science, mastering, you know, you can't do anything in life without knowing anything, something about computer science. And the other one is the code of the U.S. Constitution, because that forms the foundational code that gives shape to America and defines our essential liberties. It is the indispensable guide to Americans' productive citizens. So there you have it. Thank you.