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U.S. Supreme Court Justice Stephen Breyer on Foreign Law

Richard Albert, Boston College Law School

Yesterday at Yale Law School, U.S. Supreme Court Justice Stephen Breyer once again affirmed that foreign court judgments are relevant to the interpretation of the United States Constitution.

About a decade ago, Justice Breyer debated Justice Antonin Scalia on the constitutional relevance of foreign court decisions. In that debate, whose video and transcript is now available, Justice Scalia took the view that foreign law is largely irrelevant:

Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don’t think it changes since then.

Now, obviously if you have that philosophy — which, by the way, used to be orthodoxy until about 60 years ago — every judge would tell you that’s what we do. If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like “due process,” the “right of confrontation” and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it’s all old English law.

All right, if you have that theory, you can understand why foreign law is irrelevant. So he will never convert me.

Justice Breyer expressed the contrary view, and repeated it yesterday. As reported by the Yale Daily News, “according to U.S. Supreme Court Justice Stephen Breyer, the Constitution has five core values, and the key to preserving those values lies in being aware of what is going on in the rest of the world.”

Asked whether the U.S. Supreme Court should consider foreign law judgments when interpreting the United States Constitution, Justice Breyer responded that foreign judgments are relevant and that it does not undermine what makes the United States Constitution special to consider them. The Yale Daily News describes Justice Breyer’s answer in this way:

To Breyer, looking at what judges in other countries decide is useful — and this tactic, he said, does not strip America of its uniqueness. “The only way to preserve our American values, which are now widely shared, is to know more ­— not less — about what is going on abroad,” he remarked.

The debate on the relevance of foreign law continues.

Suggested Citation: Richard Albert, U.S. Supreme Court Justice Stephen Breyer on Foreign Law, Sept. 19, 2014, available at: http://www.iconnectblog.com/2014/09/u-s-supreme-court-justice-stephen-breyer-on-foreign-law

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Published on September 19, 2014
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