Posted on 07/07/2003 7:00:07 AM PDT by mrobison
LAW OF THE LAND
Justice: Can Constitution make it in global age?
On TV, Breyer wonders whether it will 'fit into governing documents of other nations'
Posted: July 7, 2003 1:00 a.m. Eastern
© 2003 WorldNetDaily.com
In a rare appearance on a television news show, Supreme Court Justice Stephen G. Breyer questioned whether the U.S. Constitution, the oldest governing document in use in the world today, will continue to be relevant in an age of globalism.
Speaking with ABC News' "This Week" host George Stephanopoulos and his colleague Justice Sandra Day O'Connor, Breyer took issue with Justice Antonin Scalia, who, in a dissent in last month's Texas sodomy ruling, contended the views of foreign jurists are irrelevant under the U.S. Constitution.
Breyer had held that a ruling by the European Court of Human Rights that homosexuals had a fundamental right to privacy in their sexual behavior showed that the Supreme Court's earlier decision to the contrary was unfounded in the Western tradition.
"We see all the time, Justice O'Connor and I, and the others, how the world really – it's trite but it's true – is growing together," Breyer said. "Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people. And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations."
In the Lawrence v Texas case decided June 26, Justice Anthony Kennedy gave as a reason for overturning a Supreme Court ruling of 17 years earlier upholding sodomy laws that it was devoid of any reliance on the views of a "wider civilization."
Scalia answered in his dissent: "The court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court ... should not impose foreign moods, fads, or fashions on Americans," he said quoting the 2002 Foster v. Florida case.
Scalia's scathing critique of the 6-3 sodomy ruling was unusual in its bluntness.
"Today's opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct," he wrote. Later he concluded: "This court has taken sides in the culture war."
Both O'Connor and Breyer sought to downplay antipathy between the justices – no matter how contentious matters before the court become. O'Connor said justices don't take harsh criticisms personally.
"When you work in a small group of that size, you have to get along, and so you're not going to let some harsh language, some dissenting opinion, affect a personal relationship," she said. "You can't do that."
Breyer agreed.
"So if I'm really put out by something, I can go to the person who wrote it and say, 'Look, I think you've gone too far here.'"
O'Connor, too, seemed to suggest in the ABC interview that the Constitution was far from the final word in governing America. Asked if there might come a day when it would no longer be the last word on the law, she said: "Well, you always have the power of entering into treaties with other nations which also become part of the law of the land, but I can't see the day when we won't have a constitution in our nation."
Asked to explain what he meant when he said judges who favor a very strict literal interpretation of the Constitution can't justify their practices by claiming that's what the framers wanted, Breyer responded: "I meant that the extent to which the Constitution is flexible is a function of what provisions you're talking about. When you look at the word 'two' for two representatives from every state in the United States Senate, two means two. But when you look like a word – look at a word like 'interstate commerce,' which they didn't have automobiles in mind, or they didn't have airplanes in mind, or telephones, or the Internet, or you look at a word like 'liberty,' and they didn't have in mind at that time the problems of privacy brought about, for example, by the Internet and computers. You realize that the framers intended those words to maintain constant values, but values that would change in their application as society changed."
In an unrelated matter, O'Connor indicated on "This Week" that she would likely serve out the next term on the court, dismssing speculation that she was about to retire.
The current court is split between Chief Justice William Rehnquist, Clarence Thomas and Scalia, who tend to hold the traditional constitutionalist approach to rulings, and the majority of O'Connor, Breyer, Kennedy, Ruth Bader Ginzburg, David H. Souter and John Paul Stevens, who tend to believe in the concept of a "living Constitution" subject to changes in public opinion and interpretation.
Agreed.
Exactly. This is a dark day for our Republic, when even the judges of SCOTUS don't uphold the Constitution.
This is exactly the stuff that people like Phillis Schafley have been warning about for a decade. There can be no clearer sign that they are getting ready to use this than them starting to remind us about this obscure (and probably wrong) interpretation of the Constitution.
Bush gets '04, but obviously Hillary is the medias pick in '08. Thats when the real fun will begin.
I'm getting to the point with Bush incrementalism (health care benefits, TSA idiots at the airport, etc) that I might rather take my next big dose of Socialism and Fascism together in one big gulp by the big bad nurse Hillary than let the orderly give it to me in little doses for the next 4 years.
I'm not getting any younger and I want to be here for the next chapter.
It probably would have been a landmark case if it had been appealed through the federal courts, but the minister decided not to bother because the small town where this school was located did not have the financial resources to engage in a long, drawn-out appeals process.
"I'll be back out at the stadium next Saturday, leading the crowd on in prayer," he said after the decision was handed down, "so the federal courts know where to find me."
As far as I know, he never stopped. Something worth considering these days, particularly with regard to that judge in Alabama who is refusing to remove the Ten Commandments from his court house.
In an age of terrorism and economic uncertainty, the notion of federal agents being used to enforce such silly, irrelevant rulings is absurd. And the federal government knows this more than anyone else.
The Founding Fathers actually intended for impeachment to be a pretty common thing, especially when it comes to judges. They didn't want the judicial branch of the federal government, which is not accountable to the people in any other way, to become the dominant branch of government. This whole idea that the judiciary is some independant Olympus, floating high above the sordid business of representative government and politics is a 20th century creation.
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