Justice League International: “Review of Justice Stephen Breyer’s new book, The Court and the World: American Law and the New Global Realities – By: Brian Callanan
Claremont Review of Books.
Posted: August 10, 2016
This article appeared in: Volume XVI, Number 3, Summer 2016
Writing the Court’s lone dissent in the 1999 case of Knight v. Florida, Justice Stephen Breyer relied on no less an authority than the Supreme Court of Zimbabwe to support an inmate’s claim that his long wait on death row—prolonged by his own appeals—made his punishment unconstitutional. Justice Clarence Thomas pounced: were there a shred of support for the right to a speedy execution “in our own jurisprudence,” he wrote, “it would be unnecessary” to rely on foreign sources. Breyer later confessed that invoking Zimbabwean precedent was “what one might call a tactical error.” Maybe so. But the practice caught on, and a working majority of the Court now periodically uses foreign legal sources in U.S. constitutional cases.
To his credit, Breyer is the only Justice who has seriously attempted to explain the practice. Some years ago, he joined with the late Justice Antonin Scalia to debate this and other legal flashpoints. Since judges in constitutional democracies around the world often face “problems” similar to those confronting American judges, Breyer argued, why not consider how they solved those problems? “It will not bind me,” he said, “but I may learn something.” Scalia answered that the opinions of foreign judges should be irrelevant to originalists and non-originalists alike: modern foreign sources have no bearing on the Constitution’s original meaning, and even those who wish to see the Constitution evolve through judicial decree surely want it to reflect the views of the American people. Breyer never quite mustered a clear response. Rather than advance a theory of interpretation legitimizing the use of foreign law, Breyer treats this practice, in the words of NYU School of Law’s Jeremy Waldron, as a “matter of getting a little bit of help here and a little bit of help there…”
Justice Breyer’s book reveals a frightening elitism in our most esteemed judiciary. It seems that many of our supreme jurists fail to recognize that the Constitution is a contract between the American People and our Government, NOT a contract between the citizens of this country and any other nation, except as it deals with international treaties. Because this concept is eroding, those in power would like to use international treaties to deprive the people of their Second Amendment Rights, and could just as easily be used to eradicate the First Amendment as well. Since these two amendments were specifically designed to restrict the encroachment of the people’s rights by the Federal Government, it is a question whether any treaty could be so used. Since these rights belong to the people and not the Federal Government, the government has no right to give away those things which do not belong to it in the first place. However, after reading of Justice Breyer’s willingness to disregard the fundamental meaning of our constitutional contract, it is likely that neither the First or Second Amendment will survive in any form the Founders so intended if international laws are to used with prejudice against our own people. The liberal elites would love to have it so.