Breyer v. Scalia: It’s Scalia in a TKO

Like Kenneth Anderson, it’s taken a while for me to digest the Breyer-Scalia “conversation” on foreign law and constitutional interpretation from last week. As I hinted at earlier, I was disappointed with Breyer’s comments because they simply offered no coherent rationale for why he feels it necessary or useful to cite foreign law when interpreting the Constitution. I’m sorry, Peggy, but the fact that law may or may not be the product of a “messy conversation” is simply not good enough. Law, especially constitutional law, may in fact be the product of a messy conversation but it simply can’t be true that all materials, ranging from Gilbert and Sullivan to the Federalist Papers, have equal weight in this conversation. Scalia has a theory as to why the Fed Papers are useful, and Gilbert and Sullivan is not. Breyer doesn’t have one. The best he can come up with is that if “… lawyers are interested in this, the judges are interested in it, that they’ll refer to it, that they’ll read it, that they’ll use it as food for thought, I think is fine.”

Breyer might have distinguished between international law and foreign law and suggested reasons why the constitution should conform as much as possible to international law. But he did not. He might have suggested that, because many postwar constitutions are modeled (in part) on the U.S. Constitution, courts interpreting those constitutional provisions taken from the U.S. Constitution should be given persuasive weight in, say, the same way that state courts interpreting state constitutions might. But he did not.

But I suppose because he did not do any of this, critics of foreign law in constitutional interpretation might take heart from the Breyer talk because it’s clear he does not consider foreign law (and probably international law) binding with respect to constitutional interpretation. He doesn’t really even think it is very important. In fact, in his answer to the very last question, he seemed to recognize the real problem that heavy reliance on foreign law might create.



…the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government. That changes the cast of mind, and it helps to explain why it’s so deep in America to say, “But who are those people? We had no say. We had no say in them, in their position.



And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining — too much — by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That’s a good thing.

He then adds, somewhat gratuitously.



of course, I don’t think it stops me from looking at the foreign opinions — (laughter) — and even citing them. (Applause.)



It is worth noting that Scalia had no response. He didn’t need one.