Saturday, January 15, 2005

Full written transcript of Scalia-Breyer debate on foreign law

The full written transcript of the debate between Justices Scalia and Breyer on foreign law in US courts is available here.

My thanks and congratulations to the law school for getting it transcribed and available so quickly on the web. I recommend, by the way, not neglecting Justice Breyer's very interesting, indeed moving, closing statement, at the very end of the transcript:

MR. ANDERSON: Last question that we're going to take is actually from outside this room. There are many people who are actually in other rooms in the building, and I've taken one question out of the ones that have been passed up here. So this will be the last question. And it is that Justice Scalia has raised the concern, and has really put centrally, the concern that citing foreign law is an invitation to judicial elites to impose their own moral and social views.

MORE And yet neither Justice Scalia nor Justice Breyer has directly addressed a deeper concern about these materials; namely, that's it's not about elite imposition as such, but instead that these legal materials have no democratic provenance, they have no democratic connection to this legal system, to this constitutional system, and thus lack democratic accountability as legal materials. Let me put that out as a question, I guess. (Pause.) (Laughter.)

JUSTICE SCALIA: They're your materials; you defend them. (Laughter.)

JUSTICE BREYER: I mean, it's an interesting point. You're always referring to materials, even if it's Blackstone or whoever. The material doesn't have to have a democratic base. You reason all the time. You read law professors. They're not elected. (Laughter.) I mean, to try to understand, to try to understand, it's not necessary that the origin of the material be democratic. That's normal, and of course these, where they're relevant, it's an effort to understand.

But there is a deeper meaning to that question which is very interesting to me, very interesting. When people think about the foreign court institutions, it's sometimes very hard for -- say for Europeans, to understand why Americans sometimes react negatively, so negatively to the thought that some foreign judges would be able to tell Americans what to do. They find that hard to understand, because they're judges, after all. I've even been saying -- I haven't said about telling us what to do, but I have pointed out that they're judges. But you can understand it; there is something deep in this reaction, and not entirely bad.

And it comes back to our being a democracy, as the questioner said. One of the most interesting phrases that I read -- to me -- in Madison is, if I can remember it -- and as I bring up at this moment, I usually forget the quotation -- but he said the American Constitution is a document of power granted by liberty, not a document of liberty granted by power. And what he's driving at is even if we end up at the same place as many European countries, the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government.

That changes the cast of mind, and it helps to explain why it's so deep in America to say, "But who are those people? We had no say. We had no say in them, in their position."

And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining -- too much -- by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That's a good thing.

But, of course, I don't think it stops me from looking at the foreign opinions -- (laughter) -- and even citing them. (Applause.)

MR. DORSEN: Justice Scalia.

JUSTICE SCALIA: I think it's fine to conclude on something that we undoubtedly agree upon. (Laughter.)

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