In a speech in Toronto in 2000, Judge Robert Bork said Justice Breyer's Jamaica-India-Zimbabwe citation was "risible." Bork added another sensible comment: If the views of foreign nations are relevant, they should be relevant to legislative debates, not in judicial interpretations of the Constitution.
On ABC's "This Week," Justice Breyer said a challenge for the next generation will be "whether our Constitution (fits) and how it fits into the governing documents of other nations." There's a sense in which this is obvious. Globalization and mass immigration are highlighting clashes between judicial systems. But there's an alarming interpretation, too: the suggestion that the U.S. Constitution may have to be adapted to foreign governing documents.
The background for this is that the legal elites of America and other Western nations attend the same conferences and swim in the same intellectual waters. At the conferences, Americans, including our Supreme Court justices, are attacked as insular and parochial for not adopting European and new international or transnational standards.
This pressure is not just to pull away from American law and the Constitution. Often it is also a push toward standards out of sync with American traditions of liberty. The European version of free speech is so frighteningly narrow that a major push is under way to criminalize criticism of homosexuality.
The courts of several Western nations have moved to interpret their own constitutions in the light of international conventions, U.N. treaties and other similar materials. This is a dicey proposition because so much of these materials are produced by U.N. bureaucrats and powerful U.N. non-governmental organizations (NGOs) with little publicity and almost no democratic input.
The NGOs, most of them American, are predominantly far out on the cultural left. They specialize in producing non-binding and apparently harmless documents that they work to convert into explosive and legally binding texts that undermine national sovereignty and democratic procedures. This is not a system that deserves a nod of respect from Supreme Court justices.