Skip to comments.High court justices debate foreign rulings [Scalia v Breyer]
Posted on 01/14/2005 10:59:40 AM PST by george wythe
Two U.S. Supreme Court justices debated whether foreign court rulings should influence their decisions, USA Today reported Friday.
Antonin Scalia, appointed by President Reagan, and Stephen Breyer, appointed by President Clinton, debated the issue Thursday at Washington's American University.
"We don't have the same moral and legal framework as the rest of the world, and we never have," said Scalia, who opposes looking to foreign rulings to decide U.S. cases.
To which Breyer responded: "You can learn something" from foreign countries, adding that it is a matter of "opening your eyes to things that are going on elsewhere."
(Excerpt) Read more at washingtontimes.com ...
Challenging his American University law school audience, Scalia asked, Do you think youre representative of American society? Do you not realize you are a small cream at the top and that your views on innumerable things are not the views of America at large? Doesnt it seem somewhat arrogant for you to say, I can make up what the moral values of America should be on all sorts of issues, penology, the death penalty, abortion, whatever?
Quoting a phrase from a 1958 decision by Chief Justice Earl Warren the evolving standards of decency that mark the progress of a maturing society and noting that I detest that phrase, Scalia said some of his colleagues on the court employ evolving standards of decency to justify unilaterally imposing changes in death penalty laws, overriding the will of democratically elected state legislatures.
Do we just use foreign law selectively? When it agrees with what the judges would like the cases to say, we use the foreign law and when it doesnt, we dont use it? Scalia asked.
Although not mentioning Justice Kennedy by name, Scalia said that Kennedys decision in Lawrence vs. Texas arbitrarily used foreign precedents: not all foreign law, just the foreign law that agreed with the disposition of the case.
I heard the replay of Breyer's comments on Bennett this morning. It made my skin crawl. He specifically argued that the Constitution is fluid; that "law" has been, is, and should be made by a great and messy "conversation between judges, law school professors and lawyers." Not caselaw, not interpretive law-- "LAW"-- about our most basic societal moral judgments. And foreign law is part of that "conversation."
Think about that. And think about the arrogance behind that view.
Don't mistake the message, folks-- Liberals want nothing less than to change our fundamental form of government. They want to subvert the FF's model from one in which the people make law through their elected officials, to a partenalistic regime of non-responsive elites.
If that's not un-American, what is?
A lady asked a good question that sent Breyer on the defensive. She said: [paraphrasing]
When our soldiers and our President swear allegiance to the US Constitution, how can they know to what they are swearing allegiance, since you keep changing the Constitution with your rulings?
What a great question and gets to the heart of the matter.
Kennedy's opinion in Lawrence v. Texas says:
"Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) & ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization."
Then he says:
"To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P.G. & J.H. v. United Kingdom, App. No. 00044787/98, & ¶ 56 (Eur.Ct.H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H.R. (1993); Norris v. Ireland, 142 Eur. Ct. H.R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary *577 Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent."
Scalia absolutely trashed this reasoning in his talk. The obvious point is that the Europeans pass their own laws. They don't pass our laws. We pass our laws.
The fact that the Court had to rely on EU decisions to make its point illustrates the fact that the law was not on its side.
Excellent summary of our current judicial environment.
If you watch the debate, you will probably come to that conclusion, even if you had no previous knowledge about American jurisprudence.
The US Constitution is just a document to be misquoted and misused.
i wonder why, if europes rulings are ok why no sharia rulings in the middle east. i mean how do they pick and choose what ruling they want to follow?
Scalia also explained that the uber-European-court decided the sodomy issue in Europe; it was not a law passed democratically or a consensus decision by most national high courts.
In other words, judges from a few countries decided the issue for the whole European continent, overriding most national high courts and national parliaments.
Another reason why we dont give in to homosexuals desire to have marriage. This is the slippery slope whos to say that beastiality, pedophilia or murder is wrong in the future. Without the constitution as a guiding and unchanging document for the basis of our laws and societal structure then EVERYTHING is open to change. Dont believe it then? Who would of guessed a hundred years ago that the murder of a 9mos baby inside the the mothers womb or homosexual right to be married would become law.
Not to argue with your assertion as to the effect of federal judges on America now, but weren't most of the Founding Fathers born on American soil?
You could go on for days about why we should not be relying on foreign law in our cases. The best arguments were made by Scalia, and they are devastating. However, there are some others as well, which are not so devastating, but are nevertheless pretty convincing. One, for example, is this: What the heck does Justice Kennedy know about the law in France or Germany? He's not a French or German lawyer, and he's committing malpractice by pretending that he knows what their laws say.
GO SCALIA GO SCALIA. Breyer you should be publicly flogged
Justice Antonin Scalia makes a point during his joint appearance with fellow Justice Stephen Bryer on Thursday in Washington.
The very case that Breyer used to support his view was rescinded later by that same court! Invalid from start to finish. He has to go.
Great question. What was Breyer's answer?
But Breyer ha stold Law school students that there is NO way
anyone can tell what the Constitution means.(Unless one is
on the supreme Court.) 2001 "Those more literal judges who
emphasize language,history, tradition and precedent cannot
justify their practices by claiming it is what the framers
wanted." NY University School of Law Stephen J.Breyer AP story 23 Oct.2001
Our Founding Fathers believed the Judiciary was the
weakest branch of government -- and unless they had Congress
and /or the Executive to back their brand of despotic rule
the people would have nothing to fear. Sadly we have allowed or chosen as our elected representative people who wil NOT stand up to the freaking drag queens of the Judiciary.
No he was telling the turks that he is gay. Turkish law based on custom.
Judges are supposed to make judgments based on our laws guided by our Constitution, not those of alien and foreign powers. That is their charter. They are supposed to work for us, not them.
If they can't do that at a bare minimum, they should be impeached and removed from office in disgrace - not feted on chin-wagging TV forums as if they are worth listening to.
I was going to post the same thing. If euro law is somehow valid why is it more valid that tribal law in the Congo? Any supreme who sights foreign law in reaching a decision on the constitutionality of US law should be immediately impeached for acting outside the scope of their authority.
i completely agree
He nailed it. Cross-culturalism. Political correctness. Ecumenism. Etc. It's always very selective, just so long as 'the other', however abused, taken out of context, might promote the agenda of those hateful libs who confess cross-culturalism, political correctness, ecumenism, etc. It's never the reasonable view, the full view, the compassionate view, the genuine and balanced truth of those used in such comparison. It's always a selected case here, a host of ignored examples there, and so on. To present the complete picture would only be to show that such is NOT the example, generally, that those on the far trailing edge of Christendom would condone. And PC would fail.
He absolutely gets it.
SPOTREP - LAW - Worldview
Dont know how long c-span will host the video.. but here it is... Click here for.REAL PLAYER STREAM...
Justices Scalia & Breyer Discussion on Foreign Courts' Impact Supreme Court Justices Antonin Scalia and Stephen Breyer discuss "Whether Foreign Court Decisions Should Impact American Constitution Law."
The event is co-sponsored by American University Washington College of Law and the U.S. Association of Constitutional Law. The moderator is Professor Norman Dorsen of the NYU School of Law, the founding president of the U.S. Association of Constitutional Law. 1/13/2005: WASHINGTON, DC: 1 hr. 40 min.: C-SPAN
The whole point is the Founding Fathers DID learn something from the foreign countries they came from, and wrote a Constitution for Americans that was better than anything European.
Now we have elitist justices telling us that we should return to the European Socialist rule of law.
If anything the Socialist Europeans could learn a lot from the American Constitutional system.
Thanks for the ping!
That statement is grounds for Impeachment and removal from the bench.
This reprobate judge puts cornholing on-par with decent, intimate relations between a man and wife just because "other nations do." Yeah. Like France. Sick.
It's ironic isn't it? The "elites" are quick to point out that the Great Unwashed are in no position to interpret the constituion and bill of rights, precisely BECAUSE any damn fool knows in reality that they were written in plain English - this will never do, they reserve for themselves to tell us what they "really" meant. "The Federalist" is a good start, along with Jefferson's copious correspondence, etc. The shabby little secret that's never stated - modern "liberals" aren't, most, if not all, Democrats aren't democratic.
Undermining a representative democracy - a Republic - takes time and they are doing a bang up job of it. Incrementalism, activism and a sophist judiciary; a dumbed down populace is a big part of the program.
Billdo Dillbo's hideous attacks on our nation and way of life continue past his . . . . Oval Office blow outs.
companion to the Federalist Papers-I must include Debate on the Constitution,Bernard Bailyn,editor; A Familiar Exposition of the Constitution of the United States,by Joseph Story(Regnery 1997 from the 1859 original);and
David Bartons'Original Intent.(not to leave out Jeffersons'
Writings, Merrill D.Peterson,editor) the more I learn about
the Constitution and the men who wrote and ratified it --the more convincingproof I see that the Left,post FDR do not represent that same system nor fundamental truths that
were established 1730-1805 and maintained until we allowed the Soviet Communists and the Ku Klux Klan build their damned destructive Wall of Separation.
I know that this is probably going to get me flamed but the 6 Supreme Court justices that made the Lawrence vs. Texas decision citing European Law, not the historical type i.e. Magna Carta etc., are subject to impeachment, though I know it wont happen because Republicans in Congress seem to go through a spine removal process before they are allowed to take their first vote. What part of their oath of Office do the Supreme Court justices not understand. When they sited European Law for that decision they violated their oath of office and are therefore subject to removal.
Outrageous, and grounds for impeachment and removal. If we learn something from others--which is probably true--then let the legislators pass the laws with the consent of the governed. Impeachment. Now.
You are correct. I didn't read yours before I went off, angrily, and wrote the reply immediately after yours. It's time to get started.
Not sure who is running the ping list, but this is an important one. Look at davidosbournes realplayer stream from cspan.
The Lawrence case is mentioned by Scalia.
Bookingmarking this thread. Someone should save this debate somehow for future reference.
I particular like this liberal professor from the American Universiy Washington College of Law. Scalia skewered him.
Check out his work. LOL.
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LOL! That was something to watch. The liberal professor was so wrong that even Breyer chewed him out.
Sometimes liberal professors get in row making up facts, surround themselves with equally-deluded professors, and get in trouble with that cruel thing called reality.
I had one of those deluded liberal professors in college, not just plain good ol' liberal. The guy was so wacked out that he would even contradicted the dictionary when attacking "evil" conservative and libertarian ideas.
That citation was the most surprising item in the majority opinion. I thought that Lawrence was going to be decided on narrow grounds, such as a new interpretation of the Equal Protection Clause.
As Scalia noted, consulting historical British law in order to understand the legal framework that gave birth to our Constitution is one thing. Citing a modern Zimbabwean judge that happens to agree with a liberal opinion that ignores and contradicts over 200 years of American jurisprudence is just plain silly.
No it is not just plain silly it is UNCONSTITUTIONAL and IMPEACHABLE but the Republicans have no spine! Don't get me wrong neither do the Demorats or more accurately they WANT to undermine the Constitution. The Republicans are letting it happen though so is that any better?
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