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?
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