Justice Breyer: U. S. Constitution should be subordinated to international will

On TV, Breyer wonders whether it will 'fit into governing documents of other nations'

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."

"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.

What a strange article. Rather mischaracterizes the conversation, imo.

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.

Huh? Scalia wasn’t even mentioned in the interview, nor was Lawrence mentioned, so Breyer certainly wasn’t “taking issue” with Scalia or his dissent.

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.

And again, this is irrelevant to the interview at issue. Besides, it was Kennedy who wrote the decision, not Breyer. The author just sort of throws this in here, even though it has nothing whatsoever to do with Breyer’s comments regarding globalization, which were made in response to a question concerning how the Constitution might be amended in the future.

From the interview:

GEORGE STEPHANOPOULOS: What's the secret to [the Constitution’s] sturdiness?
JUSTICE O’CONNOR: Well, for one thing, it develops some very sound principles of governance, the notion of separation of the powers of the three branches of government that were established. And that was new in the world and it's worked pretty well. Each branch with some power over the other and I think that simple structure has served the nation pretty well.
JUSTICE BREYER: The structure as we see it over time is a system so that people can make their own decisions. It sets up a framework of democratic government so if you have a country of tens or hundreds of different kinds of people, different groups of people, they can get together and make their own decisions through the democratic process governed by this framework which more or less keeps the system on track.
STEPHANOPOULOS: Is it flawed in any way?
O’CONNOR: Well, it was originally because originally only white males owning property could vote, and we would find that notion an anachronism today, I think, so it took a great many years and a civil war before it became more inclusive in terms of voter rights and participation.
STEPHANOPOULOS: How about now though, the Constitution as it is today, when you look at it, is there any way it can be improved by an amendment?
O’CONNOR: I don't see the need for any great change. The thing has been remarkably durable through the years. It's lasted longer than any Constitution in the world today, and it's only had 27 amendments in all these years, the first ten of which are the Bill of Rights.
BREYER: I think that a challenge will be, but I couldn’t tell you how it would ever be amended or if it would, is as 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, that through commerce and through globalization, through the spread of democratic institutions, through immigration into 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 generation.
STEPHANOPOULOS: Does that mean, is it conceivable that there will be a day when the Constitution is not the final word on the law of America?
O’CONNOR: 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.
STEPHANOPOULOS: Earlier this year, you 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. What did you mean by that?
BREYER: 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.?

Complete transcript if anyone’s interested.

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