SOON AFTER the Supreme Court wrapped up its work this year, no fewer than five of the justices left for Europe. Most of them will spend several weeks there. They like it there. Europe, in fact, is where most justices tend to spend their summers, attending legal conferences and seminars in cities of ancient charm and high culture. This year, the schedules of the justices include Florence, Paris and Salzburg.
It sure beats Chillicothe (Ohio), Danville (Virginia) and Lubbock (Texas), someone (a justice abroad) might think. But the justices might be better justices, and the country (meaning the United States) might be better off, if they spent less of their vacation in the capitals of Europe and more of it in the American heartland. Some of our justices are forgetting that the constitution they are asked to expound isn't one informed by European courts or other current sources of foreign law. It is the Constitution of the United States of America.
Consider Justice Anthony Kennedy's opinion for the court in the most controversial case of the term, Lawrence vs. Texas, which struck down criminal laws against homosexual sodomy. Justice Kennedy (in Europe, per usual, this summer) felt compelled to go beyond the U.S. Constitution to note that the European Court of Human Rights and "other nations" have affirmed the "right of homosexual adults to engage in intimate, consensual conduct."
He continued, "The right the petitioners [from Texas] seek in this case has been accepted as an integral part of human freedom in many other countries." And the American failure to affirm that right, he concluded, can't be justified: "There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent."
Whatever courts in other countries have held on issues that in America are framed in terms of our Constitution is irrelevant. "We the people of the United States"--not some other people--have made our Constitution, and we have the power, under Article V, to amend it as we see fit.
Under our Constitution, the Supreme Court has the authority to determine whether legislative acts are constitutional. But such determinations require the court to figure out what a document framed and ratified by Americans means. It is odd to think that the interpretative task could include borrowing from the judgments of other courts to discern constitutional meaning. Moreover, it is "this constitution" that Article VI says "all judicial officers are "bound by oath or affirmation" to support.
In his dissent in Lawrence, Justice Antonin Scalia made the obvious point that "constitutional entitlements do not spring into existence, as the court seems to believe, because foreign nations decriminalized [homosexual] conduct." The court's discussion of "foreign views," he added, is "meaningless" yet "dangerous" dicta.
Why "dangerous"? No doubt because Justice Scalia knows that no fewer than six justices--Stephen Breyer, Ruth Bader Ginsburg, Sandra Day O'Connor, David Souter and John Paul Stevens being the other five--are drawn to "foreign views" and someday could form a majority constitionalizing some foreign view or other. In which case the justices in that majority would have violated their oath.
Does Justice Scalia worry too much? Hardly. In her concurrence in the Michigan law school case, Justice Ginsburg began with a discussion of foreign law. In a death penalty case last year, Justice Stevens dropped a footnote citing "the world community" for its disapproval of the death penalty for crimes committed by mentally retarded offenders.
In another 2002 death penalty case, Justice Breyer wrote that foreign law "can help guide this court when it decides whether a particular punishment violates the Eighth Amendment." In a rare TV interview last week, Justice Breyer described "the challenge for the next generation" as that of figuring out whether the Constitution "fits into the governing documents of other nations."
Obviously, a justice can go abroad and stay faithful to the Constitution of the United States of America. Indeed, Justice Clarence Thomas is one of the five now in Europe, and he has sharply rebuked colleagues who would "impose foreign moods, fads or fashions on Americans." Resisting that imposition is the real challenge, and it is one for our generation.
Terry Eastland is publisher of The Weekly Standard.