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.

Even though the statement you quote is inaccurate, let's assume that your conclusion is accurate - Breyer wants to read cultural norms into the Constitution. How do you get from here to "Breyer says Constitution is subordinate to international will?"

If the Constitution is subject to cultural norms (how else to you explain the Texas ruling?), then why wouldn't it also be subject to international influences? Thomas' dissent said they did read cultural norms into the ruling and I don't see how anyone can deny that. On what else was the decision based? Certainly not on the U.S. Constitution! I see no right to sodomy in the Constitution. Do you? Do you deny that ideology/culture influenced that ruling on Texas?

So that's you're answer? If the Constitution can be subject to one thing, why not another? And that equates to Breyer making the statement attributed to him in the headline?

Do I agree that the Court mentioned cultural norms? Yes. Do I agree that they relied on them as THE basis for the decision? No.

(Pulling on Nomex hood and suit) Do I see a right to sodomy in the Constitution? Not exactly. But I do see an inherent right to be left the hell alone by the government. And anyone who wants the state to outlaw homosexual sex better be prepared to have the state outlaw getting oral pleasure from your wife, because the historical basis for the two is exactly the same. In fact, most legal definitions of "sodomy" include both. And, as far as the 9th Amendment is concerned, I am hard-pressed to come up with a more inherent right, which would be retained by the people, than the right to choose which place you stick it in - as long as the owner of that place is willing.

He didn't say it would be a challenge for the Court. He said it would be a challenge for future generations. And if you don't think it will be, just consider the implications of differences between Supreme Court rulings on copyright law and the way the rest of the world views copyrights. Do you think intellectual property recognizes national boundaries?

Once you toss original intent as the SCOTUS did long ago (and I can cite numerous cases that produced phantom rights out of thin air and perverted the Free Exercise Clause), then the door is open to ANY rationale for interpretation, isn't it? One relativized and subjected to ideological preferences, then ANY ideological precedent can be introduced, even an international one. The Everson case in 1947 introduced the cockamamey "Wall of separation" doctrine (TOTALLY BOGUS HISTORICALLY), and look at what has happened since - ruling after ruling restricting prayer and posting of the 10 commandments. I have no doubt that eventually the SCOTUS will see to it that Christians are ARRESTED for preaching the gospel! (unless they are stopped now).

Pulling on Nomex hood and suit) Do I see a right to sodomy in the Constitution? Not exactly. But I do see an inherent right to be left the hell alone by the government. And anyone who wants the state to outlaw homosexual sex better be prepared to have the state outlaw getting oral pleasure from your wife, because the historical basis for the two is exactly the same.

Not exactly? The answer is clearly NO. I also do not see a right to privacy - can you show me that one? Can you show me where that right to privacy trumps the RIGHT TO LIFE (don't they have that backwards)? No, but the reprobate SCOTUS says it does! And your statement about a right to be "left alone by the government" is richly ironic considering it is the govt that has intruded on my Free Exercise rights for the last 50 years!

Our ratified Constitution is THE Law of OUR Land. Rulings to the contrary are unlawful. The opinions of up to 9 blackrobes are interesting, but if in conflict with what our Constitution actually says, those bad actors becomed outlaws - offering no legal basis for anything except their own impeachment and removal from office.

Subordinating our ratified Constitution to bench law or the real politic one world government or acceptance of same is not the "good behavior" of their term of office. Their appointments are not for life.

Now is the time for We the little people to retake this nation from the Real Politic, elite, professional political class who make their own convenient "living" constitution so that we may live under penalty of law.

Now you are just veering off into hyperbole. Christians will be arrested for preaching? Okay - I understand your concern and want to give it a chance, so - please cite to a single decision by SCOTUS - ever - which has upheld state action (not Congressional law, as you have argued the 1st Amendment must be read, but state action) infringing on the free exercise of religion by any citizen of the United States. My only caveat is that I am sure you will cite cases where the GOVERNMENT was restricted from taking some action or another, based on the Establishment Clause, and we have already disagreed at length over whether the Government has religious beliefs or a Constitutional right to have a faith preference. But, outside of cases restricting the GOVERNMENT from expressing a faith preference, I challenge you to post a SCOTUS case finding that any citizen cannot freely exercise the religion of their choice. (Here's a hint: the only ones you are likely to find relate to Native American animist religions which *GASP* use illegal drugs in their religious rituals.)

Show you? That would be the 9th Amendment. Just because it is not explicitly listed in the Bill of Rights doesn't mean you don't have it. You have liberty - and what good is liberty if you don't have the freedom to exercise it? Your rights are not defined by the Government, and they are not granted by the Government. Just because the Founders didn't list them doesn't mean there are no such rights.

Since you are such a Constitutional scholar, you must agree that the 9th is not meaningless - that the people have retained rights not listed in the Constitution. Tell me - what are they? What unenumerated fundamental rights do you have?

Okay - since you haven't responded to that request, let me shortcut it. The law of the land is that the government may infringe on free exercise of religion only through the use of generally applicable, religion-neutral laws or state action. For example, possessing peyote is illegal for everyone, whether you are doing it in conjunction with a religious ceremony or not. Or everyone has to get a parade permit, whether your group has a religious affiliation or not. Now, can you cite me to any law or state action - not generally applicable to everyone - that infringes on your right to practice Christianity? I presume from your prior posts that you contend that a restraint on the Government posting religious symbols infringes on YOUR right to free exercise of your faith, or that a restraint on the Government endorsing your religion infringes on YOUR right to free exercise of your faith. Surely you do not claim that you need Government assistance to freely exercise your religion.

The majority decision clearly states that the Lawrence case was NOT a fourth amendment case because due process was followed.

That's exactly the point. Indeterminate noises coming from inside a house is not enough to justify entrance into a private residence, especially considering that the tip was nothing more than a phone call from a nosy neighbor, without any sworn statement or inside knowledge. From what I read, the noises that the police heard could easily have been the grunts and thumps of a couple of people trying to move a heavy piece of furniture through a narrow passage or up stairs. Before the police can enter a private residence, without a warrant, they must have convincing reason to believe that a delay might be life threatening or allow evidence to be destroyed. The police had no such convincing evidence - only indeterminate noises and a phone call.

The real problem is that the liberals on the Court, along with a couple of "so-called" moderates, chose to ignore the 4th Amendment guarantees and used, instead, "world opinion", in deciding the case. In other words, those justices subordinated the Constitution to "world opinion".

That's why, impeachment proceedings should be started. It would seem that Breyer would be the logical target of those proceedings, since his statements to the media, clearly disqualify him as a Supreme Court Justice. Even if those proceedings go nowhere, it will send a clear message to the liberals on the Court, that they are still accountable to the people.

Show you? That would be the 9th Amendment. Just because it is not explicitly listed in the Bill of Rights doesn't mean you don't have it.

I see...you can't show me. It's a phantom right.

You have liberty - and what good is liberty if you don't have the freedom to exercise it? Your rights are not defined by the Government, and they are not granted by the Government. Just because the Founders didn't list them doesn't mean there are no such rights.

Under this rationale, I could invent any right whatsoever! The right to be free from hearing the Gospel of Jesus Christ, the right to be free of hearing an opinion you don't like, the right to spread disease even though we know the societal impact of such folly, the right to take the life of the unborn, the right to engage in ANY SEXUAL BEHAVIOR WHATSOEVER (incest, sex with animals, sex with children). The door is now open for that. The oligarchs of the SCOTUS cannot say on one hand that homosexual sex is okay but that incest isn't!

These are not God-given rights. One thing is for sure. The right to privacy does not trump the right to life - the vice versa is true. That Elevating the right to privacy was merely an expedient to legalize abortion on demand. Such supremacy for the privacy right may be consistent with narcissistic hedonism, but I do not think it correlates well with absolute moral principles (e.g. God hates the shedding of innocent blood).

You can't make up fundamental rights out of thin air. Common sense is involved. That is precisely why the founders stated over and over that our Constitution was "written for a moral and religious people and is inadequate for the government of any other." They knew the Constitution was worthless without virtue! Hence, we have the immoral state of affairs we have today. Total license for the evil elements of society and suppression of the evanescant good elements (e.g. persecution of the Boy Scouts and Christians). If it is good, it MUST BE DESTROYED becuase virtue reminds the reprobates of how evil they are so these reminders must be silenced!

First, I do not accept the implied premise in your post that govt schools = federal govt, and the 1st amendment concerns only a NATIONAL religion (really it was DENOMINATION but that is another topic). Schools are COMMUNITY concerns and always have been. The Federal govt. is overstepping its constitutional bounds when it gets invovled in education in the first place.

Well, how about if we widen the the option from SCOTUS to Federal Govt (including federal courts and the U.S. Congress)? How about restricting the speech of a valedictorian at graduation? How about the 9th Court decision on the Pledge of Allegiance? How about the 501(c)(3) which restricts pastors from speaking freely on political candidates? That isn't a restriction on free speech? I think it is - why hasn't the SCOTUS overturned that perversion?

Now you are just veering off into hyperbole. Christians will be arrested for preaching? Okay - I understand your concern and want to give it a chance,

COMING TO A COUNTRY NEAR YOU! Check out the new Canadian laws recently? It is now against the law to preach from the bible that homosexuality is a sin! Fine of up to $5,000. You think that will not happen here within a few short years? Think again. This is the "new tolerance" (euphemism for "forced acceptance") in action. Tolerance my eye. Let me tell you something - homosexuality is a moral issue and will ALWAYS be a moral issue. They can pass any law they want and they can scare people into inaction and silence, but they cannot force people to accept it in their hearts. That will never happen. But, mark my words - the day is coming when they will prohibit pastors from teaching romans 1 or Exodus 20! The precedent is already there - pastors already can't say that Bush is a better candidate than Gore!

How about restricting the speech of a valedictorian at graduation? How about the 9th Court decision on the Pledge of Allegiance? How about the 501(c)(3) which restricts pastors from speaking freely on political candidates? That isn't a restriction on free speech? I think it is - why hasn't the SCOTUS overturned that perversion?

The school example is pretty easy- the graduation is a school-sponsored event. If the Valedictorian gives a religious speech, the implication is that the school (a government funded entity) is backing his/her words.

The Pledge ruling may be ridiculous, but it doesn't limit anyone's right to practice religion- you're free to say the pledge of allegiance anywhere except in one, very limited place.

501(c)(3) covers special tax status- churches get special tax status if they follow certain rules, such as no political sermonizing. A pastor is free to spout political sermons, but his church will lose 501(c)(3) tax benefits. Nobody is entitled to 501(c)(3) tax benefits if they're unwilling to meet the requirements.

I don't see where healthcare by govt. is authorized. The Constitution has enumerated powers, like the Navy, the Post Office as the role of FedGov, all else is left to the states.

The Federal government also has the power to nationalize industries through the takings power in the Constitution. Industries have been nationalized on several occasions in American history (such as during WWII). So, the Federal government could simply nationalize the health care system if it wanted to.

Simlarly, the commerce clause gives the Federal gov. the power to regulate commerce between the States (whcich health care surely is), so that would be another basis for Federal health care.

The school example is pretty easy- the graduation is a school-sponsored event.

Baloney - the student is speaking for himself. Graduation is about the students not the freaking school! You can spin it any way you want - this IS A RESTRICTION ON RELIGIOUS SPEECH - a violation of the free exercise clause. Also, where in that clause does it give SCOTUS the authority to make any changes in religious speech. NOWHERE! It says "congress shall make no law..." which means Congress is the ONLY one that can.

The Pledge ruling may be ridiculous, but it doesn't limit anyone's right to practice religion- you're free to say the pledge of allegiance anywhere except in one, very limited place.

If it limits it anywhere then it is limiting someone's right to practice religion. Explain to my why it is that they held church services in the chambers of Congress, the capital rotunda, the Treasury Bldg. and the War Dept. in the 19th century (with Jefferson in attendanced with the Marine Corps Band)? Why weren't these spaces off limits? Clearly, they have REWRITTEN THE CONSTITUTION based upon their OWN secular ideology and not upon ANY precedent whatsoever. Quit spinning the unspinnable and making excuses for BAD law.

And you think that's okay? Maybe in Beijing! I think you should read some revolutionary war history when pastors used the pulpit to rally people to the cause! You can hold your position but you can't hold it with any historical validity; you can only hold it based upon personal ideology and autocratic decree.

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