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.
The pod also includes at least four others Supremes who been signing on to the idea of using European Court of Human Rights precedents.
Although I don't support litmus tests for specific issues, I do think there should be a anti-foreign precedent litmus test. Any future Supreme Court nominee should be asked to promise to never cite a foreign court precedent. Period. If they don't agree, vote 'em down. I think the America people will go along with this kind of foreign precedent litmus test MUCH more easily than a specific issue test such as on abortion or affirmative action. And, frankly, what you will find is that judges who abhor reliance on foreign precedents are the same ones who are likely to be with us on specific cases.
because there IS NO RIGHT to be wrong under our Constitution.
You said that with conviction, the conviction of a dedicated, shallow simpleton. Is that the best you can do?
Oh barf.. Oh Gag!
Make up your mind and don't respond just to disagree.
It is worse. Your ideology reveres the group. --
You misuse the term "ideology", you have no idea what my ideology is and you may very well have a total misconception of what your ideology is. Whatever you're trying to prove, you're not very good at it. Whatever ideology you represent, you are not doing it justice.
You and I operate on totally different planes....
Thankfully.
I do not think that sucking the brains out of a fully developed baby is a private matter.
Absolutely wrong. This is worth fighting - in the courts and in the streets.
"....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."
Unknowingly, with this statement, Justice Beyer has started the next war!!
You mean you don't think that fits under the heading of "transcendent liberty"?
Me either.
Then don't tell anyone about that dime that's on the track just around the bend. Derailments are such fun :-)
They compounded a problem....they took a bad situation and made it worse (like I said). For example, the Bush Read My Lips big tax increase fiasco was compounded by a much bigger Clinton tax increase because people "lost confidence"....got themselves "disaffected"....wanted "accountability".... Well, you don't have to blame them, but I do. Bush made a mistake, but Clinton did it on purpose.
Marbury established the doctrine of Judicial Review--which was foreign to the Constitution.
Nope. The USSC is so authorized by Art III. - As you well know.
That establishment led to the JudRev of ALL laws (through the 14th) passed by States, in seeming violation of the 9th Amendment.
'Seemingly', only to those, like you, who prefer 'states rights' to our constitutions rule of law.
Marbury has been castigated as a horrendous mistake by a number of informed lawyers of the conservative (not Libertarian) stripe.
Yep, we shoulda killed em all, back in Will's day. But here we are, stuck with them. - The solution?
- Insist that they follow the simple principles of our free republic.
-- Not the single issue politics so many here advocate..
Truly frightening comes to mind
I hope you really sent it.
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