If that seems like a stupid question, you haven’t been paying attention. One of the most important contemporary issues is the effort by liberals to interpret our Constitution based on “international opinion,” as reflected in court decisions and legislative enactments in other countries. Most Americans naively believe that the Constitution means what it says, and the job of judges in Constitutional litigation is to apply the language of that document to the facts before them. The left has long rejected this “simplistic” view, and has argued that general phrases in the Constitution must be interpreted so as to conform that document to “enlightened” opinion in this country. It is a small step to argue that the Constitution must conform to “enlightened” opinion as it exists in the “world community,” a view that has gained increasing currency on the Supreme Court.
Today, the Associated Press reports on a televised debate between Justice Antonin Scalia and Justice Stephen Breyer on this topic. Justice Scalia argued that it is “arrogant” for American judges to mold the Constitution to fit their concept of enlightened world-wide opinion. But Justice Breyer was breathtakingly candid about the role that he thinks foreign countries should play in dictating American law:
Breyer responded that international opinion can be relevant in determining fundamental freedoms in a more global society.
“U.S. law is not handed down from on high even at the U.S. Supreme Court,” he said. “The law emerges from a conversation with judges, lawyers, professors and law students. … It’s what I call opening your eyes as to what’s going on elsewhere.”
I’m not sure I would have believed that if I hadn’t read it: “The law emerges from a conversation with judges, lawyers, professors and law students.” No mention of the language of the Constitution; no mention of statutes enacted by Congress or the state legislatures; no mention of American customs, traditions, or popular opinion. Do you think this an extreme view? It is, of course, but the Associated Press doesn’t think so. Its article calls Scalia a “conservative” justice, but does not label Breyer. His view is, from the AP’s perspective, the mainstream one. (A personal note–Justice Breyer was my honors thesis adviser in law school. I did not view him, then, as an extremist; on the contrary, he was one of a handful of professors who introduced me to free market economics. But no Supreme Court justice has ever moved to the right after being appointed; not in my lifetime, anyway.)
This discussion starkly illuminates the battle that will be fought over the Supreme Court during the next four years. The newspapers and television networks will tell you that President Bush’s nominees, who will uphold the sovereignty of the United States and will decide cases based on our Constitution and statutes, and not some other countries’, are “extreme.” No one will suggest that those holding the opposite view–that American law should be decided by Europeans, Africans and Asians–are out of the meanstream.
The stakes could not possibly be higher.
UPDATE: Howard Bashman wrote to point out that he has a link to the Scalia/Breyer debate on his site. Watch it, and see for yourself.
Glenn Reynolds writes:
The “internationalization” of constitutional law is often seen as a liberal project, but it shouldn’t be. Even if “international” is a synonym for “European,” the consequences of importing, say, European law on abortion wouldn’t be so liberal as the rules there are much stricter.
I yield to no one in my regard for Professor Reynolds, but he misses the boat here. Justice Scalia made the same point in the debate, as the AP notes: “If justices believe foreign judgments are decisive on these moral cases, they should ban abortion since most other countries do so, Scalia said.”
But no one imagines that liberal justices searching for “enlightened” world opinion will find it in statutes banning abortion, mandating capital punishment, etc., no matter how widespread such statutes may be. The diabolical nature of the “internationalist” school of Constitutional interpretation lies, in part, in the fact that there is no standard by which Supreme Court justices choose that facet of world opinion that is “enlightened,” except their own prejudices. You can be sure that only such “world opinions” as are liberal would find their way into the Constitutional jurisprudence of Democrat-appointed justices.
HERE’S MORE: Michael Hertzberg watched the debate; he writes:
I watched the Scalia/Breyer “conversation” this afternoon, and while I didn’t specifically pick up on the AP’s Breyer quote, I was troubled by Breyer’s failure to rationally support the relevance of foreign decisions.