Having to work, I caught most of the discussion between Justices Scalia and Breyer held at my law school via C-SPAN (first on the web and then in the car), but I got to school in time to see the last bit from one of the multiple viewing rooms on campus.
As I was telling John, “I heart Scalia“. I was quite pleased when he referenced the Framers’ dim view of, “Continental powers who didn’t trust their subjects with arms,” as an example of why looking to foreign law was not necessarily a positive thing, even in 1789. He has a clarity of thought and delivery that was refreshing and insightful. Justice Breyer is also wicked smart, but in more of a gentle thinking out loud kind of way.
The event was highly entertaining, but it seemed as though the Justices were really talking past each other. Scalia was saying that foreign law citations should have no force in American Constitutional jurisprudence, whether one is an originalist or not. Breyer was saying that reading foreign opinions was helpful to understanding the law. They’re both right, but in the end I agree with Scalia’s conclusion of this exchange (from the Washington Post story):
“What does the opinion of a wise Zimbabwean judge . . . have to do with what Americans believe,” Scalia asked Breyer, “unless you think it has been given to the courts” to make moral judgments that properly should be left to elected representatives. “Well, it’s relevant in this way,” Breyer replied. “They are human beings there, just as they are here. You’re trying to get a picture of how other people have dealt with it.”
“Indulge your curiosity,” Scalia joked, “just don’t put it in your opinions.”
On the other hand, Breyer had the most stirring quote, a paraphrase of James Madison, saying the the American Constitution is, “a document of power granted by liberty, not liberty granted by power.” The original Madison is longer and less eloquent, but the sentiment is the same.
I recommend watching the whole thing, which can be found at C-SPAN’s website for the next 15 days or so.
There was a reception afterwards, but I had Constitutional Law class to go to (oh, the irony). I ran upstairs to get a soda before class. The soda machines are in an alcove behind the dining room (which had been screened off for the reception). As I was about to turn down the hallway to walk back to class, a Secret Service agent asked me to stand out of the hallway for a minute. I backed off and about 30 seconds later Dean Claudio Grossman, Justice Scalia, and Justice Breyer walked right in front of me, no more than five feet away. I got closer to the Justices by grabbing a soda than I likely would have in the press of the reception. More irony.
…back to studying…
UPDATE: Professor Kenneth Anderson has posted an excellent analysis of the implications of Breyer’s position at his blog.