“The Court and the World: American Law and the New Global Realities” is a new book by Justice Breyer, a left-wing judge who could help us make a the case that we need term limits for Supreme Court Justices. Breyer, who sees the constitution as a “living document” has just taken a bold new step to put a dagger in the heart of the U.S. Constitution.
He is on a mission to convince readers that American courts no longer have any choice but to involve themselves in the law beyond U.S. borders in court decisions.
Using cases from justices across the ideological spectrum where foreign law seeped into decisions as examples in his book, he insists this proves judges need to consider foreign law in making decisions. We are no longer isolated from the world.
Apparently, not only does he seem to think justices can legislate from the bench but they can do it based on the rule of law in Japan or France or some other country.
This would put us in danger of being judged by Sharia law or South African law for example on free speech, religious freedom or the right to own a gun. His thinking is very dangerous and unfortunately he is sitting on the Supreme Court believing he can manipulate the U.S. Constitution to consider some foreign laws if it suits the justices.
He thinks that considering foreign law is the best way to “preserve our basic values.”
Justice Scalia, a soon-to-be-extinct breed of American, differs.
“The basic premise of the court’s argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand,” Justice Antonin Scalia wrote in a 2005 dissent. Perhaps as a consequence, references to foreign law in major constitutional cases have been sparse since.
“The argument politically is what I call the froth on the surface,” he said. “It has very little to do with what’s going on.”
“What I’m trying to show is that the whole argument is beside the point,” he added. “The world we’re operating in is one in which by and large everyone believes you have to know something about what’s going on abroad.”
Breyer is so pragmatic he will shape shift to any foreign law and justify doing it.
Breyer said that citing the foreign and international tribunals are not binding but instructive. No one believes that. Once the practice is accepted, it threatens our constitution.
In a death penalty decision in 2013, he referred to the fact that the U.S. is one of only eight that executed more than 10 people a year. Obviously, when he states it’s not binding to cite federal laws, he doesn’t really mean it. It was part of his decision.
Treaties of course supersede our Federal law to a large extent and must be approved by a two-thirds vote of the Senate, which is why they should be enacted very carefully. Unfortunately, we now have a Corker-Cardin bill which eliminated the treaty powers of the Senate to get the nuclear deal through. That bill must go or we have seen the end of treaty powers and the start of reckless agreements.
In fact, as an aside, an article at Director Blue does make one think that the Corker-Cardin bill and Mitch McConnell’s quick submission to the Iran deal were due to the dealings their donors have with Iran.
Here is an excerpt:
Follow the money. Who are the most recent donors to Mitch McConnell?
1. Blackstone Group ($185,800) – Blackstone Group has multiple subsidiaries that have done business recently with Iran, including TravelPort and TRW. Earlier this year, Blackstone was asked whether it would invest in Iran after the Obama nuclear deal, it denied having immediate interest (“it’ll be a while”).
2. Goldman Sachs ($113,325) – GS entered the uranium market in 2009 and its associated business unit (NUFCOR) has been involved in Iran’s uranium deals since the seventies. In 2007, GS listed Iran among its most promising emerging markets, citiing opportunities in energy, human capital and technology.
4. JPMorgan Chase ($97,075) – in 2011, JPM paid $88.3 million in fines over a series of financial transactions related to Cuba, Iran and Sudan. JPM is also involved in litgation with victims of the 1983 Marine Corp barracks bombing in 1983 through Italian bank Clearstream. JPM has a waiver from the Treasury Department to do business with Iran.
10. General Electric ($74,995) – GE has had a long, sordid history of business dealings with Iran. More recently, The Street reported that GE has a “head start in Iran” that could result ina “bonzanza of new access to an economy eager to buy everything from the newest cell phones to the most modern oil production equipment”. GE has a waiver from the Treasury Department to do business with Iran…Please keep reading
Barack Obama intends to bypass Congress again in order to enact his climate change treaty. Congress won’t fight it and we will rue the day.
Getting back to Breyer, he said that many treaties delegate rule-making power to international bodies to enforce provisions involving trade, the environment, chemical weapons, air travel, and many other subjects. “There’s even something called the international olive oil commission,” Breyer notes, with a wry smile. “I’m not quite positive what they do with the olive oil, but my guess is that they set standards.”
There shouldn’t be any question about the international olive oil – our law trumps all other laws. If it’s a treaty, we’re bound by the terms of the treaty. If it’s not, we should want no part of International law and their tribunals which often depart radically from ours.
One of the concerns with the TPP currently being negotiated is a clause that would allow foreign entities to sue in U.S. courts against our own laws, forcing local and state jurisdictions to change their laws to conform.
Breyer’s questions are: To what extent may Congress delegate its legislative authority through treaty and statute? If there are no limits, then what has become of the constitutional provision giving Congress the power to make all laws? But if you say Congress can’t ever delegate its power through a treaty, “well then, how do we get our international problems solved?” Breyer asks.
We can do away with the Constitution and Congress in Breyer’s world. It wasn’t very long ago when Justice Ginsberg said she “prefers” the South African Constitution over the U.S. Constitution. We have justices who don’t really respect our rule of law as it is.
Breyer will be on “The Late Show With Stephen Colbert” on CBS Monday evening and there can only be one good reason for that – he wants to infect the minds of the youth with his new approach to the Constitution.