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.

Well. The case was decided in violation of the 9th Amendment. A reading of the history of the case provides the facts that: 1) there was a complaint of 'possibly violent activity' phoned into the cop-shop; and 2) the responding police heard all kinds of noises.

You may choose to argue that their entry into the apartment was a violation of the 4th; but your argument defies common sense.

And if you think the 4th is important (I do), have you YET written your Congresscritter about the "Patriot Act" which prima facie violates about every word, one-by-one and in-sequence, of the 4th?

Finally, I know a lot of homosexuals and some are friends of mine (and no, this is not a sarcastic quotation...) I do NOT despise nor dislike them as a class.

Having said that, if they are predators, or actively seeking "marriage" rights, I will fight them tooth and nail.

Be glad to. Is government run health care constitutional? How about his drugs benefit program or the 15 BILLION dollars he just gave to Africe. He signed CFR which he stated was unconstitutional. Increased spending in the dept of education. Surely you don't think this Patriot act is constitutional. How about wanting to give social security to ILLEGAL aliens or granting them amnisty. I could go on forever...then when it comes down to closing the borders, which is REQUIRED by the constitution, he has utter contemp.

Let's see if I can address your points:

1) Government run health care (which we don't have) would be Constitutional. It would be STUPID, but there's nothing in the Constitution forbidding stupid laws or preventing the nationalization of an industry. Ditto on the drug benefits plan- stupid, but Constitutional.

2) The President is generally responsible for foreign policy. Foreign aid is a part of foreign policy. Any money spent on foreign aid needs to be approved by Congress, which was the case with the Africa money. The President was exercising a Constitutional power and spending properly appropriated funds. Sounds pretty Constitutional to me. Whether it's a good idea is a discussion for another day.

3) In terms of dealing with illegals/the border, I don't agree with the President's proposed policies, but I don't see how a Constitutional issue is raised. Immigration and border control are clearly a Federal power. Again, open borders and giving benefits to illegals is a dumb idea, but I don't see any Constitutional issues being raised.

Just out of curiosity that's how I read Sandra Day O'Conners comments. How do you read them?

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."

I see that as her saying that even though we'll be seeing more treaties being signed in the future (which I don't necesarily agree with), those treaties will still need to pass the test of Constitutionality. Remember, treaties need to be ratified by the Senate (by a 2/3 vote, if I'm not mistaken), so they can't really be imposed on the American people unless the Senate is somehow full of internationalists.

You don't hear of treaties being brought up in court because most currently existing treaties are very weak in their ability to override American law. Very rarely, a State law will be overturned on treaty grounds- that last one I remember is a California environmental law that clashed with a treaty the US had entered into. That's really no different than a state law being overturned because it clashes with any other Federal law.

I can't really think of any currently existing treaty that I would consider unconstitutional. Few treaties are self-executing- rather, they rely on the signing countries to pass laws that will make the provisions of the treaty enforceable in those ocuntries. So, if the Senate somehow ratified a treaty that, say, banned all firearms, and then Congress enacted legislation to empower that treaty, the laws would still have to survive Constituional scrutiny. There's a lot of checks in the system, so I'm not all that concerned that treaties will be able to take away Americans' rights.

1) The Lawrence opinion referred to foreign sources as an explanation of evolving attitudes towards homosexuality, not as statements of controlling law.

2) You may not believe this, but international treaties ratified by the U.S. ARE the law of the land. I see Breyer talking about having to "fit" them within the Constitution, but I don't see anywhere where he says the Constitution is "subordinate" to such conventions. In other words, your headline is made up.

You may not believe this, but international treaties ratified by the U.S. ARE the law of the land. I see Breyer talking about having to "fit" them within the Constitution, but I don't see anywhere where he says the Constitution is "subordinate" to such conventions. In other words, your headline is made up.

Are you actually defending this Breyer's comments? They're indefensible. Quite obviously, this guy has a GLOBAL bent, as does most of the people in our government. Globalism is contrary to the Constitution. American citizens are not legally accountable to any international body in any case for any reason, including the United Nothing.

Further, Congress has the power to reign in the rogue courts. Article 3, Section 2, paragraph 2 of the U.S. Constitution makes it very clear: "In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Notice "with such Exceptions...as the Congress shall make..." Congress doesn't even need the president's signature for such an action - just a simple majority vote in both houses. That's how easy it would be for the legislative branch of the federal government to rein in the judiciary.

Respectable conservatives don't want to offend liberals. They believe liberals have a legitimate point of view.

That's the problem with Republicans today - they are pathetic wimps who refuse to fight. The liberal point-of-view can be legitimate only if universal right and wrong don't exist. Unfortunately for liberals, right and wrong do exist, and their position is WRONG on virtually ALL FRONTS.

Which comments? You claim he said the Constitution is subordinate to international agreements. I asked you where he said this, and you pointed to the Lawrence decision (which he didn't write, and which didn't say this either). I would not defend such a comment, but I haven't seen it, and the article you posted does not contain it, except in the headline authored by you. Also, point our where he said American citizens are legally accountable to international bodies. You are twisting the words to reach a conclusion that is not stated.

Hello lugsoul - first of all, I didnt' post this article. Second, the article quotes:

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."

There's a problem with any justice who has the temerity to even question how our "Constitution FITS into the governing documents of other nations." Who gives a flip? The governing documents of other nations HAVE NO BEARING WHATSOEVER on our Constitution and its interpretation.

More: 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.

This guy is using godless amoral european rulings as HIS GUIDE to constitutional interpretation!!! You don't see a problem with that? Scalia did - read is dissenting comments. You dont' see globalist intentions in that? Wake up and smell the coffee.

Western tradition? hahaha. This guy obviously knows NOTHING about Western Tradition. Where does he think the reformation occurred - China? He must be reading the new ABRIDGED history of Western Tradition. Europe today does not remotely resemble Europe of 300 years ago, especially Germany, Holland, Sweden, Switzerland and England - nations which had a very strong Christian base. Yes, today's Europe is cold and dead - and became so when they threw out God and adopted man as the moral standard-giver. I suppose Breyer has never heard of Gustavus Adolphus, William Wilberforce, Martin Luther, John Calvin, Dietrich Bonhofer, and on and on. This is just more liberal revisionist claptrap. There is nothing to admire in Europe today.

Where does he think the reformation occurred - China? He must be reading the new ABRIDGED history of Western Tradition. Europe today does not remotely resemble Europe of 300 years ago, especially Germany, Holland, Sweden, Switzerland and England - nations which had a very strong Christian base. Yes, today's Europe is cold and dead - and became so when they threw out God and adopted man as the moral standard-giver

I too am a Reformed Christian, but I greatly fear that what ties the nations you mention together is their fealty to my Reformation-and I fear that the "man as the moral standard-giver" may have been named Martin Luther.

A) I see two different things going on here. First, both Breyer and O'Connor seemed to be saying that "globalisation," i.e. increased mobility of people, goods, ideas, information across national borders will produce some conflicts between accepted international practices and domestic governance - the "challenge." I don't see any problem with this observation, and it is certainly a truthful one. Without cataloging the numerous possibilities, it seems entirely likely that certain interpretations of the Constitution will run headlong into accepted international practices. My guess is that this is far more likely to occur in the commercial realm than in the "social" one. Think intellectual property law. And, yes, it will be a "challenge."

Second, some folks are taking these statements and claiming that the justices are advocating (1) making the Constitution subordinate to foreign governing documents or (2) making the U.S. Government subservient to international bodies, or both. I don't see those statements in this article anywhere, and if you do I'd love for you to point them out.

Next - Breyer didn't write Lawrence. Kennedy did. The reference to the ECHR was in direct response to the Bowers decision, which held - using questionably employed support - that all of Western civilisation condemned sodomy. In overruling that case, the Court addressed the arguments used in support of the Bowers decision. Strange that no one questioned reliance on foreign sources in the Bowers case. Anyway, at no point did the Court say its Constitutional interpretation was controlled by the ECHR. Instead, it used that source in an effort to refute the assertion in Bowers. Plain and simple.

There are plenty of real issues out there to deal with, without making new ones up.

I see you had no argument to my observation about the globalist Breyer (who would be impeached is our Congress had any moral character or courage). I'll take Martin Luther over Jaques Chirac any day of the week. Martin Luther's authority was SOLA SCRIPTURA (by extension then, GOD is the moral standard-giver. Europe's authority is "human rights" as defined by men! Tell me, which is more authoritative and universal?

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.