Strengthening Constitutional Self-Government

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Constitutional law final

Is this what the Founders intended? Or this?

There are several Supreme Court Justices who are eager to administer the global test, it seems.

I can’t wait to get my hands on a transcript of the debate, if ever one becomes available.

Update:One-stop shopping here at Powerline. Lots of links. More later.

Discussions - 9 Comments

Honestly, I don’t know how to respond to your question of whether the Founders intended for this or not. Didn’t the Founders allow for the Constitution (and, inherently, the interpretation thereof) to be ammended and changed so that it could evolve as society and humanity evolved socially, economically, and politically? Like I said: I honestly don’t know. But does that make sense to anyone else? Would it necessarily be bad to take in consideration (not require the endorsement of) the opinions of the rest of the world? Obviously, as the second article you cited suggests, I think it would be ridiculous to trump the Constitution with such opinions. But these articles seem to condemn even being concerned with international opinions. In any case, I wouldn’t worry much if I were an Ashbrook Fellow. Not unless John Paul Stevens can live (and actively serve on the Court) well into his 90s . . . heh . . .

I saw a bit of the debate yesterday, and what was apparent is what most of us already know: Justice Breyer practices an outcome-based jurisprudence. In colloquy between Justice Breyer and Scalia, Breyer suggested that if another country had looked at a similar question, shouldn’t he look to that country to see how they resolved it, and what the effects of the decision were. Scalia replied that this would be relevant if the job of the judge were to sit as moral arbiter--to reach the "right" decision. He disagreed and suggested that the role of judge is simply to interpret what the Constitution and the laws actually say; not to impose their view of what would be better. There is the fundamental difference between the two: for Breyer, international law is relevant, because he sees his role as a super-legislator to form public policy. Scalia recognizes that the judge’s role is a limited one.

"U.S. law is not handed down from on high even at the U.S. Supreme Court," [Justice Breyer] said. "The law emerges from a conversation with judges, lawyers, professors and law students."

If I would have incorporated this into my my Con Law final when I was a 1L or wrote something like this on my bar exam essay, I would have failed.

The mechanism for amending the Constution is found in Article V. If the nation opts to incorporate foreign law into U.S. constitutional jurisprudence then it should be done through that method.

I’ve read that Justice Breyer’s comments, although accurate, were taken out of context. This is from Professor Kenneth Anderson from American University and he was an organizer of the dicussion. This is from his blog:

I was one of the organizers of the Scalia-Breyer debate - I’m a law prof at AU law school - and although the AP quote was, so far as I could tell, accurate, it was taken sharply out of context. Justice Breyer was speaking in a very specific exchange with Justice Scalia about the narrowly judicial act of interpreting legal texts, and it is quite unfair to take that remark about who participates directly in the process of interpreting legal texts that have already been informed by constitutional and legislative and other democratic institutions - judges, lawyers, law students (and it was obvious to the live audience that he included students as a courtesy to the audience of law students) - as being somehow antidemocratic. He was just noting the fact that legal materials, once they have been created through various democratic mechanisms, then become subject to interpretation by the interactions of lawyers and judges. It was nothing more insidious than that. A much better summary of the event is in Charles Lane’s Friday front-page Washington Post article.

This reminds me how some took President Bush’s comments about his belief in the Lord and how it affects his governing.

Matt, putting aside for the moment whether it would be good or bad to consider the opinions of the rest of the world generally, it bears pointing out that none of what the Supreme Court does involves questions for which the rest of the world is relevant. The Supreme Court deals with a limited range of issues generally involving whether or not a given legislative or executive action is constitutionally permissible. It does not matter what anyone thinks about an issue - either the Constitution permits an action or it does not. For example, the Constitution itself references capital punishment. Even if 100% of non-Americans thought the practice were abhorrent, their opinions (even if we agree with them) are irrelevant to the issue before the Court: whether or not the Constitution allows capital punishment. Decisions of foreign courts generally have little or nothing to add to a discussion about the meaning of our founding document.

Your position seems to be that Americans should consider and grant some degree of weight to other peoples’ ideas, particularly where there is a consensus. That may be true, and is something that we should consider when writing statutes and/or amending the Constitution itself. It is not a judge’s job, however, to read into the Constitution the prerogatives of foreign courts or peoples. A judge’s job is not to make the law, it is to simply state what the law is. To a large degree, many federal judges (and several members of the Supreme Court) forget that fact.


Okay. I understand what you’re saying. But about your point on capital punishment: you’re saying that we couldn’t ammend the Constitution to change that? Or are you saying that it’s not the places of judges to change that? If you were suggesting the latter, I agree. But, originally, many of the amendments were "unconstitutional" or they would not have needed to be added. Right?

Thanks for addressing my questions.

No, of course we can amend the Constitution, and can consider anything we want when doing so. It is a very different proposition, however, to say that "the people/states can collectively change the Constitution" than it is to say "judges can rely on extra-constitutional sources, including foreign courts, to decide constitutional questions." The former is inherently democratic, the latter is almost the exact opposite.

To stick with our example, if a judge feels very strongly against capital punishment, he ought to speak out against it publicly, or perhaps run for the legislature so that he can change the law. It is not appropriate, however, for a judge to supplant the law with his personal beliefs about what constitutes good public policy, all the while pretending that he is actually enforcing (rather than effectively changing) the law. At present, the Constitution permits - indeed, it specifically contemplates - executions. It would be completely lawless for a judge to claim (as several members of the current Supreme Court undoubtedly would) that executions are "unconstitutional" because there is a broad European consensus against them. That has nothing to do with the Constitution - it has to do with the justices’ policy preferences. However, a broad consensus against capital punishment is something that voters and/or state legislatures could (and maybe should) consider if someone seeks to amend the Constitution.

Okay. I see what you meant now and I think you’re absolutely right. Judges shouldn’t use international cases as if they were precedents. Thanks for making this more clear . . .

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