RUSH: Ladies and gentlemen, yesterday on this program, I interviewed the next subject, the next person for the next issue of the Limbaugh Letter. That would be Mark Levin, who is the author of Men In Black: How the Supreme Court is Destroying America. It was a wide-ranging and extremely salient interview, very probing, very in-depth. You don’t have the book yet. You can’t get the book yet. The book’s not out till next month. I have the book because I am a powerful, influential member of the media and I had to pretend to read it so I could ask Levin questions. No, I actually did read it. One of the things we talked about yesterday was the Supreme Court deciding that they can’t just use the US Constitution to rule and adjudicate matters in the United States.
No, the US Supreme Court now must consult foreign cultures and foreign sources of law and at least some members of the court think this. And incredibly enough, there was a debate last night on C-SPAN between one of the two most brilliant people on the Supreme Court, Justice Antonin Scalia. A man who I’ve always said if I didn’t have my brain, I’d like to have his. And Stephen Breyer, one of the libs on the court. It was called, “The Relevance of Foreign Law.” Michael Rosenfeld, president of the US association on constitutional law, said, (paraphrasing) “Justice Scalia, you said that 60 years ago originalism was basically not abandoned, but at least is less important in decisions today.” That means original intent. “And I think every justice has to deal with the issue of precedent. In the Supreme Court, precedent is not binding in the sense that your court can overall its own precedents. So the question is this: Let me ask the following hypothetical.
Suppose your court had never had any jurisprudence on abortion and all of the abortion jurisprudence, including your own opinions, were by Canadian judges. Would there be any interest, would there be any point in reading that and looking at it as well-reasoned, not well-reasoned, helpful or not helpful, in developing doctrine?”
JUSTICE SCALIA: I wouldn’t look to Canadian law. I look at the text. It says nothing about it. And I look at 200 years of history. Nobody ever thought it said anything about it. That’s the end of the question for me. What good would reading Canadian opinions do unless it was my job to be the moral arbiter, which I don’t regard it as. I regard the constitution as having set a floor to American society. That floor says nothing about abortion. It’s not the job of the Constitution to change things by judicial decree. Change is brought about by democracy. Abortion has been prohibited.
You want to change that? American society think that’s a terrible result? Fine. Persuade each other about that. Pass a law and eliminate the laws against abortion. I have no problem with change. It’s just that I do not regard the Constitution as being the instrument of change. By letting judges read Canadian cases and saying, “Yeah, it would be a good idea not to have any restrictions on abortion.” That’s not the way we do things in a democracy. Persuade your fellow citizens and repeal the laws. Why should the Supreme Court decide that question?
RUSH: Amen! I love this guy. I absolutely love this guy. The court has assumed power it was never granted in the Constitution. One of the primary themes of Mark Levin’s upcoming book, “Men In Black,” and here is Scalia laying it out perfectly. Abortion is not for us. We’re not here to decide that. We’re not here to take over the democratic process from people. The American people’s elected representatives make the law in this country. We don’t make the law is what he’s saying. But this is not the view of Stephen Breyer, who you will hear in a moment. In this next bite, Scalia explains why we shouldn’t use foreign court rulings in interpreting our Constitution, and he does so brilliantly. Listen.
JUSTICE SCALIA: We are one of only six countries in the world that allows abortion on demand at any time prior to viability. Should we change that because other countries feel differently? Or maybe a more pertinent question: Why haven’t we changed that if, indeed, the court thinks we should use foreign law? Or do we just use foreign law selectively? When it agrees with what the justice would like the case to say, you use the foreign law, and when it doesn’t agree, you don’t use it. Thus, you know, we cited it in Lawrence, the case on homosexual sodomy. We cited foreign law. Not all foreign law.
Just the foreign law of countries that agreed with the disposition of the case. But we said not a whisper about foreign law in the series of abortion cases. What’s going on here? Do you want it to be authoritative? I doubt whether anybody would say “Yes, we want to be governed by the views of foreigners.” Well, if you don’t want it to be authoritative, then what is the criterion for citing it or not? That it agrees with you? I don’t know any other criterion to bring forward.
RUSH: I take you back to a recent broadcast in which I said the left, in order to keep getting what it wants, is going to need a new constituency, a new populace. They have failed in their efforts to persuade the American people that their ideas deserve legislative victory. The left is losing elections. The left doesn’t win in the Congress or the Senate, and so they are now resorting to outside sources. In the case of the war in Iraq, the French and the Germans and in the case of abortion or any other law that comes before the court the liberals want to take, want to accept, they’ll go wherever they can in the world to find anybody that agrees with them, since the American people don’t. And they will then use foreign authority. So Scalia is saying, well, wait a minute. If you’re going to do that, you know, we’re one of only six nations that have unfettered abortion anytime you want it up until viability.
But most of the world doesn’t. If we’re going to cite foreign law, why don’t we have the same proscriptions against abortion as the rest of the world does? Because the left is selective and they’re not interested in the democratic process and they’re not interested in the rule of the majority. They’re interested in their own rule, their own decisions taking place and triumphing wherever they have to go to get it. And you will pretty much hear Stephen Breyer, Scalia’s debate partner on C-SPAN last night admit this when we come back and get into a couple of bites from him.
You just heard Justice Scalia refer to the Texas sodomy case, and as a prelude to the bites coming up here by Stephen Breyer, it does serve to remind you that, you know, we don’t prosecute sodomy in this country. There was an old law on the books in Texas, somebody filed suit, it found its way to the court because the liberals on the court wanted to take it. And to decide it, they cited foreign law. They cited foreign law. And one of the red flags was what the hell is this? The US Constitution is the authority and that’s what Scalia is saying. But Stephen Breyer, one of the liberals on the court in this debate last night on C-SPAN with Antonin Scalia tried to make the case and wait till you hear it. Wait till you hear his reasoning and compare his reasoning to Scalia’s as to why seeking authority from foreign countries, cultures and governments is okay. Here’s what he said.
JUSTICE BREYER: I wrote a dissent which you thought was totally wrong, and it was in from a denial of cert and the question was this: Is it a cruel and unusual punishment to keep a person on death row for more than 20 years before executing them? And I wrote an opinion that suggested a dissent, that I thought this was quite likely, quite possibly would be — the answer to that question would be yes. That cruel and unusual punishment.
Now, where do I look? You say oh, I should look to myself. If I look to myself, I might be able to get an answer much faster. Let’s say I don’t look to myself. I mean, can I jump out of my own skin? No. No human being can. But let’s see what’s around. And of course I wrote this thing not too convincing, but I found opinions in the privy council in England where they had upset Jamaica.
JUSTICE SCALIA: Reversing an earlier one of their own cases.
JUSTICE BREYER: Right. Correct.
JUSTICE SCALIA: So they don’t even pay attention to their own opinions.
RUSH: That was Scalia. So they reversed their case. He cited a case that the English ended up reversing. Breyer did. Over the fact that it’s cruel and inhumane to keep somebody on death row for more than 20 years before executing them. Wait a minute. Who’s caused this? If I may just take a brief political departure? Who’s caused this? Who’s responsible for 14 years, on average, of delays and stays when it comes to convicting the executed, or convicting the guilty of capital crimes in this country? It’s the very liberals that were represented here by Stephen Breyer.
So Breyer said, “Well I can’t look to myself.” Why not? That’s what most of the rest of you liberal judges do. Why not look to yourself? So since he couldn’t look at himself, he went trolling. He went trolling all over the world, looking for someplace to back up his opinion. Admitting his dissent was not very good and so forth and so on. You just heard, this is a man — this is a lawyer — you just heard a judge telling you how he rules on cases. A liberal judge. You didn’t hear one thing about the law. You didn’t hear one thing about the Constitution. You heard about how he could find someplace around the world to validate what he thought.
When you listen to Scalia, you hear somebody concerned about the law, the authority of the Constitution. What was the original intent? Pure and simple. Not legislation. Not the democratic process. Not majority rule. What’s the law? What’s the Constitution say on this? That’s our final authority. But it doesn’t satisfy the left. The Constitution doesn’t grant them what they want. They have to invent it, and if they can’t get away with inventing it, they’ll go find it in some far-flung corner of the world. We have another bite here. Breyer going on to discuss all the great rulings he found in Canada, the United Nations, India and Zimbabwe.
JUSTICE BREYER: India, they’ve written a pretty good opinion. There was one in Canada. The UN had discussions on this. And they weren’t all one way and I cited things the other way, too. Anything I could find. And then I think I may have made what I call a tactical error in citing a case from Zimbabwe, not the human rights capital of the world, but it was at an earlier time, Judge Gubbay was a very good judge so I’d written this, and of course I looked — I don’t think that’s controlling.
But I’m thinking, well, on this kind of an issue, you’re asking a human question, and the Americans are human, and so is everybody else, and I don’t know, it doesn’t determine it. But it’s an effort to reach out beyond myself to see how other people have done. Though it does not control.
RUSH: It did control. It controlled your opinion, Judge Breyer. It ended up shaping your opinion. You went trolling for something that you could find any — Zimbabwe — around the world that agreed with what you thought, based not on the law, but based on what’s human. You know, the court doesn’t allow cameras. The Supreme Court never allows cameras, so all we get are, you know, print journalists and TV, electronic reporters telling us what goes on in an oral argument. We don’t get to see debates like this and last night there was one on C-SPAN. Scalia ought to be out there far more often. I know it’s a hassle and I know they have to have limits on this themselves, but folks, with these four bites, there’s no greater evidence and illustration of the difference between a conservative judge and a liberal judge when it comes to who looks to the law and who looks to all these outside sources that can validate what the liberal judge feels or what the liberal judge thinks. It’s just shocking. And these people are appointed for life.
And half the questions the Supreme Court takes today are questions that ought to be decided in the US Congress. But for one reason or another, US Congress doesn’t have the guts or in some cases, the US Supreme Court asserts its power and says we’re the final authority on the Constitution, we’re going to take it, we’re going to rule. And then when they don’t find on the left what they want in the Constitution, they go elsewhere. There is a way around this. That’s what Mark Levin’s book is all about, after chronicling many, many more such problems as this.