Government & Politics

Looking for Law in All the Wrong Places

Justice Breyer claims we should look to other nations' laws.

John J. Bastiat · Sep. 22, 2015

The title alludes to the latest swing-and-a-miss effort by Supreme Court Justice Stephen Breyer, who claims we should look to other nations’ laws to determine what we should do with our own. Great theory, except for that whole “tracking-with-reality” thing. In other words, this is standard liberal claptrap: It works great in “Steve’s World,” but not our own.

Specifically, the ultra-liberal jurist suggests we should ask the rest of the planet how it deals with capital punishment before we draft our own laws regarding the same. Lost in the translation of Breyer’s wacky position is an appreciation of the fact that the vast majority of the modern world’s laws — including their bedrocks, virtually all modern constitutions — source from those of the U.S. and its Constitution. And the differences don’t generally help other nations live freer. Most of whose laws still trail our own jurisprudence and to whom the U.S. has rendered a solid understanding of the terms “right” and “wrong” in the first place. So the idea that we should look to these states for guidance is laughable on its face. But this is what happens when a “smart person” becomes educated beyond his capacity to reason.

In his book, “The Court and the World,” Justice Breyer rhetorically quips, “If someone with a job roughly like my own, facing a legal problem roughly like the one confronting me, interpreting a document that resembles the one I look to, has written a legal opinion about a similar matter, why not read what that judge has said? I might learn from it, whether or not I end up agreeing with it.”

Well, yes, he might — it’s exceedingly doubtful, but we’ll concede that one-in-a-million chance, in the interests of fairness. Much more likely, however, are the odds he will not learn from it, but rather, simply use it — as here — as source law for a wildly skewed personal notion of “justice” as well as an unabashed, accompanying personal agenda. In this case, that agenda centers on ending the death penalty. We know which odds we’d favor, in any case.

As to U.S. law regarding the death penalty, beyond the obvious, visceral reason for instituting such a measure — namely, that some crimes are so egregious they simply deserve the death penalty — Western civilization is so steeped in deeply rooted traditions and rationales for warranting the death penalty for certain crimes that countless volumes of works spanning several centuries before and after the United States’ founding have covered this well-trod ground ad nauseam. When we became “We the People,” the Founders left neither bedrock Western culture nor sound reasoning at the door of the Constitution, but rather interwove each into its very fabric, informing all parts of society — especially its jurists — as to our heritage and shared understanding of what “justice” means. Unfortunately, abandoning that reasoning is exactly what some today, including some from our highest Court, are advocating.

Underpinning these traditions and common reasoning is the concept of arguing from a foundation. For the United States, that foundation is the U.S. Constitution. Moral relativists, of course, disregard the very notion of a “foundation,” as Breyer implicitly does in his arguments, thus undermining their own “solid” positions in the process. Cutting to the chase, though, since when has another nation’s opinion about the U.S. Constitution mattered one whit to U.S. law? Better, since when should it matter to the Supreme Court? That’s the real question Justice Breyer needs to answer before anyone bites off on his survey-the-world crusade to determine what his opinion as a sitting Supreme Court Justice ought to be.

Opinions on whether the death penalty should be abolished vary, and reasonable minds can disagree on the “right choice” regarding this issue, though for our part we’re all for it, for reasons too numerous to detail in this short segment. But reasonable minds cannot and should not disagree on the source of arguments for or against ending the death penalty: The U.S. Constitution. “Forum shopping” other nations’ laws for answers that aren’t there isn’t the answer. No, the real answer is the same as it has been for the better part of 300 years: Solid jurisprudence, informed by the world’s greatest thoughts on justice and freedom in an ordered society, all of which source from within the United States of America.

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