Bad News for US Constitution :(

When the Supreme court Justices decide they don't have to follow thier own guiding document, things are not good.


LAW OF THE LAND
Justice: Can Constitution
make it in global age?
On TV, Breyer wonders whether it will 'fit into governing documents of other nations'
--------------------------------------------------------------------------------
Posted: July 7, 2003
1:00 a.m. Eastern
© 2003 WorldNetDaily.com


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."

Breyer agreed.

"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.


I think this is not good news at all

[Timber Loftis]

What's not good news? Not following the Constitution -- I dare say neither of them would say that.

Educational point:
The heirarchy of power of governing law in the US is:
1. The Constitution and US Treaties
2. Federal Statutes
3. Presidential Orders and Regulations Implementing Statutes (e.g. EPA Clean Air Act Regs)
4. State Statutes

Now, if one of the 2 or 3 heirarchy laws go against the Constitution (let's say they exceed the powers of the fed gov't vs. the states or they outright violate and Amendment) then it will fall -- making contradictory state statutes win out sometimes.

But, the point is that the Constitution and Treaties are (almost) equal. I know we tend to forget this amidst an administration that wants to forget the parts of American history and laws it does not like, but theoretically we ARE BOUND by treaties such as the Framework Convention on Climate Change and the UN Charter. And, theoretically, any presidential order or federal statute to the contrary falls before a Treaty.

Scalia knows his international law -- if you were interested in being really bored, I could site you to a Sherman Antitrust case where he paid TONS of attention to international law and did about 4 or 5 legal gymnastics manuevers to work around international law. But, we all tend to forget our last arguments when making our current arguemnts.

I try whenever possible not to forget my last arguent [img]smile.gif[/img] I like to be consistant. As for the Supreme Copurt Justices who want to look at other nations rulings for domestic issues...Im sorry, they don't have any business doing that. They are supposed to be guided by the Constitution and it's ammendments...not making law as they go.