Scalia vs. Breyer:
A conversation

Some of the deep philosophical differences that exist among certain members of the U. S. Supreme Court were revealed on a television program carried by C-Span in mid-January. The program featured Associate Justices Antonin Scalia and Stephen Breyer in “conversation.”
Rarely have any Justices of the Court exposed themselves to open debate on sensitive issues, especially on television.
The moderator was Prof. Norman Dorsen of the New York University School of Law, a past-president of the ACLU.
Prof. Dorsen gave two examples of the Supreme Court’s use of foreign law materials: a reference in 1850 to the Magna Carta (1215 A.D.) and one in the 1960s to “English Judges Rules” (English Common Law). He added: “One journalist is quoted as saying, ‘There is now a new attentiveness on the Supreme Court to the legal developments in the rest of the world.’”
Comment: Neither the Magna Carta nor English Common Law are foreign to the United States Constitution. These references are representative of its very foundation. Providing a gratuitous comment from an unidentified reporter was ludicrous.
Prof. Dorsen posed several questions: “When we talk about the use of foreign court decisions in U.S. constitutional cases, what body of law are we talking about? Foreign constitutional law? International law such as treaties to which the U.S. is a party? Do we mean them to be authority or persuasive or rhetorical? If not precedent in U.S. constitutional cases, are they nevertheless able to strengthen the sense that U.S. law assures a common moral and legal framework with the rest of the world? If this is so, is that in order to strengthen the legitimacy of the decision within the U.S., or is it to the legitimacy of the decision in the rest of the world?”
Justice Scalia, selected to respond first, answered verbatim: “Most of these questions should be addressed to Justice Breyer. I do not use foreign law in interpretation of the U.S. Constitution. I do use international law in interpretation of a treaty.
“It would be nice to use foreign law if we had the same moral framework as the rest of the world. We don’t and we never had. If someone had told the framers of the Constitution that we should do something just like Europe, they would have been appalled. The framers had little respect for any of the rules of Europe.
“Would you want it to be authoritative? I doubt if anybody would say we want to be governed by the views of foreigners.
“Foreign law is irrelevant with one exception - Old English Law -- phrases like due process, the right of confrontation, all come from Old English Law. In reality I use more foreign law than anybody else on the Court, but it’s Old English Law. If you have that theory you can understand why foreign law is irrelevant.” Pointing to Justice Breyer, Justice Scalia said, “He will never convert me.”
In one of the few confrontations, Justice Breyer responds: “Well, suppose Old English Law tells you the decision should be interpreted in light of contemporary conditions?”
Justice Scalia: “You find something in the law that says this, I’ll use it.”
Justice Breyer gives a flip answer: “Blackstone. Blackstone says, ‘Follow Breyer.’”
Justice Scalia: “Let me continue. That’s my approach but what is another (opposite) approach: The Constitution isn’t static. It doesn’t mean what the people voted for. .. Rather it changes from era to era to comport with the evolving standards of decency, the progress of a maturing society. I can’t test that phrase because societies don’t always mature. Sometimes they rot. It seems to me the purpose of the Bill of Rights was to prevent change, not to encourage it. If you adopt that, what are you looking for? The decency of the society of America, or the decency of the society of the world?
“Some recent cases reflect more on the moral perception of the judges than on the moral perceptions of the American people, for example, capital punishment and abortion. I, frankly, don’t want to take that responsibility. I don’t want to do it with foreign law and I don’t want to do it without foreign law. I sleep very well at night because I read Old English cases and there’s my answer.”
Justice Breyer was next to respond to Prof. Dorsen’s questions. His answers, verbatim, follow: “Law originates with c0onversations, conversations between lawyers, judges and law professors, and from giant, unbelievably messy conversations emerges law and that means you have to have a conversation.
“In some of these countries, there are institutions and courts that are trying to make their way in societies that didn’t used to be democratic. They are trying to protect human rights and they are trying to protect democracy and they have a document they call a constitution. They want to be independent judges and all over the world the U.S. Supreme Court is cited. Why don’t we cite them on occasion? They will tell their legislators and others and say ‘See, the U.S. Supreme Court cites us’ and that may give them ‘a leg up.’ I’m amazed at the controversy over foreign law.”
“One case involved a prison inmate remaining on death row for 20 years. Was it cruel and unusual punishment?”
“On the death penalty, Blackstone cites only English and American references. I found cases in England, India, Canada and the U.N. Perhaps it was a tactical error by citing a case from Zimbabwe, not the human rights capital of the world. However, I don’t think these references were controlling.”
Concluding comments: Justice Scalia’s comments were focused. His eye never left the U.S. Constitution and the law that created it, “Old English Law” and the Magna Carta. He recited compelling reasons why foreign court decisions were irrelevant to the U.S. Constitution.
The comments of Justice Breyer appear to be somewhat vague and indecisive. He offered no compelling reasons to change the current policies for interpreting the U.S. Constitution. Some comments were downright scary, especially citing a decision from Zimbabwe.
It was suggested that the use of foreign court decisions may strengthen the legitimacy of decisions in the rest of the world or give “a leg up” to the courts in newly created nations. These suggestions would dilute the strength of the U.S. Constitution. To think that parcelling out the Constitution bit by bit to the human rights junkyards around the world would give them strength is to believe in the Tooth Fairy.
These suggestions would only internationalize the fabric of the U.S. Constitution and turn it into nothing more than a United Nations rag.