Scalia skeptical about international law in U.S. courts

Marin INdependent Journal ^ | Apr. 3, 2004 | AP

[FairOpinion]

WASHINGTON - Justice Antonin Scalia said yesterday his colleagues on the Supreme Court will probably go on referring to foreign court decisions in their rulings on U.S. law but that doesn't make it right.

Scalia generally opposes a greater role and influence for international law in American courts.

While that view made him an unusual choice to speak to the American Society of International Law, Scalia said he welcomes the opportunity to engage his critics.

"It is my view that modern foreign legal material can never be relevant to any interpretation of, that is to say, to the meaning of the U.S. Constitution," Scalia told the group.

Scalia said the modern court's reliance on legal rulings overseas traces at least as far back as 1958 and has been applied inconsistently. Sometimes the court seems very taken with rulings from other countries, and sometimes sweeps them aside as unimportant, Scalia said.

The only consistent way to interpret American law is to stick to the original meaning of the Constitution, Scalia said.

"We have no authority to look around and say 'Wow, things have changed,"' he said.

Scalia is the most vocal critic of an emerging trend among his colleagues on the high court to note international views in the court's rulings.

Scalia told the law group much the same thing he has said in recent opinions.

For example, Scalia complained when a majority of the court found a "national consensus" against executing the mentally retarded, and banned the practice. The majority had noted strong international opposition to the executions.

"The prize for the courts Most Feeble Effort to fabricate 'national consensus' must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called 'world community,' and respondents to opinion polls," Scalia wrote in a dissent in that 2002 case.

[FairOpinion]

"The only consistent way to interpret American law is to stick to the original meaning of the Constitution, Scalia said."

[Callahan]

Nino must feel like he's got his finger in the dyke watching the cracks spread.

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[Huck]

Huzzah!

[PISANO]

I go nuts everytime I hear someone refer the the SCOTUS as the "CONSERVATIVE COURT". With just TWO conservatives on the court Scalia and Thomas, ONE moderate (Rehnquist), 4 liberals and TWO Socialists (Beyer and Ginsburg) it is hardly a CONSERVATIVE court.

[dr_who_2]

"National Concensus" sounds like yet another technique for liberals to rationalize their attacks on the constitution, but it's a symptom of the disease. He should attack the disease directly.

[Mason]

I go nuts everytime I hear someone refer the the SCOTUS as the "CONSERVATIVE COURT". With just TWO conservatives on the court Scalia and Thomas, ONE moderate (Rehnquist), 4 liberals and TWO Socialists (Beyer and Ginsburg) it is hardly a CONSERVATIVE court.

That's a pretty good summary of the court's character.

[middie]

Mr. Justice Scalia is a brillant justice who is stuck firmly in the 18th Century. No, we don't have the grant of constitutional authority to say something like the bizarre statement he proffers to pre-determine the validity of the conclusion that follows such a statement. We do, however, have the brillance of the breadth and width of the constitutional parameters that forsaw the inevitble evolution of the society to be governed by that orgaanic document.

By the 1780s and witnessing the total failure that was the Articles of Confederation, the Convention struggled through the give and take, the politics of the Right and left of that era, and the hope that their words would create a blueprint for an ever-expanding, ever more centralized government, and a tri-partite scheme that would have the necessary adaptability to keep the basic governing text intact as exprsssing the role of government (the basic text) as well as the outer limits of governmental permissible conduct when juxtaposed to the governed (the Bill of Rights and the subsequent amendments).

As bright as the justice is, and I have met him at functions involving a body known as the "American Inns of Court," and have enjoyed his after-dinner repartee, he nonetheless has a special specie of myopia that, were it to become governing doctrine, would lead to the unravelling of the American society as we know it.

The legal scholarship discussing his constitutional blind spot fills many pages of law review article indicies. It is doubtless an interesting academic subject and its adherents are great to read and listen to, but original intent as a methodology for constitutional analysis in real cases brought before the Court is a societal train wreck comin' down the track.

[henderson field]

Has everyone gone crazy?

[FairOpinion]

"would lead to the unravelling of the American society as we know it. "

===

Maybe that would be a very good idea.

[VeniVidiVici]

The Soviet Union had a constitution that was regularly ignored also.

Why even bother with it? We should just start anew and create a constitution that truly does reflect today's society.

I mean, why waste time?

[StriperSniper]

BTTT

[Arthur McGowan]

The next time you're driving down the highway at 65 in a 65-mph zone, I hope you get stopped and get a big, fat ticket, and the cop and the judge tell you they have a "living" speed limit. So much for your "living Constitution" crapola.

Either the PEOPLE are capable of writing law that means something, or they aren't capable of self-government. You can't deny the intelligibility of the Constitution without denying the possibility of self-government.

[BlueNgold]

While your credentials certainly entitle you to respect as possessing an informed opinion I find both your comments here and your personal description somewhat amusing.

You seem to believe you either know more or have a better grasp of constitutional law than the man acknowledged by most legal scholars as the pre-eminent costitutional mind of our time. And your stated opinions on economics defy the most basic concepts of free-market theory. Thank you for your honesty, but I hoenstly have no faith that your core legal and economic beliefs have anything in common with mine.

As always, discussion and disagreement are a catalyst for education as we work our way through life. Best regards and best wishes.

[FreedomCalls]

the hope that their words [the Constitution] would create a blueprint for an ever-expanding, ever more centralized government

LMAO! You are so funny! You left off the </sarcasm> tag though. Some people might think you seriously believe that....

</sarcasm>

[Freesofar]

Anyone else feel a chill here ?

First thing that comes to my mind is another civil war.
Now that the cultural war is lost.
Think I'll stock up on more ammo and canned food tomorrow.

[Freesofar]

Hillary ? .. is that you?

[FairOpinion]

Actually all we need is first of all for Bush to get re-elected with a strong Republican Congress, with enough majority, so the Dems can't obstruct Bush's appointments of conservative judges. Then we need another 20 years of solid Republican presidents and Congress -- that would totally change the structure of the judiciary and put an end to the liberal "legislating from the bench" way of making laws.

[FlyVet]

So, Scalia is not an idiot, in contrast to Ginsberg, who looks and thinks like she eats lemons garnished with alum, and hasn't had a good bowel movement in 10 years.

[irv]

with enough majority, so the Dems can't obstruct Bush's appointments of conservative judges

As long as there is still one living, breathing, elected Democrat anywhere, the Republicans will roll over in sheer terror.