Human Rights

What bearing, if any, does foreign law have on the proper interpretation of the American Constitution? Speaking last week at the American University Washington College of Law, Justice Antonin Scalia gave a blunt answer: none.  Justice Stephen Breyer disagreed. Those contrasting positions might appear neatly to track the political affiliations of the Justices: Scalia, the conservative appointee of a Republican President, favors U.S. unilateralism, while Breyer, the centrist-to-liberal appointee of a Democratic President, favors a more global approach.

Yet the Scalia-Breyer colloquy revealed that such an ideological mapping is too neat. The real differences between Scalia and Breyer have more to do with their general views about jurisprudence: Scalia rooted his opposition to foreign law in his belief that the Constitution should be construed in accordance with the original understanding of those who framed and ratified it. In contrast, Breyer took a more pragmatic, forward-looking approach.