Scalia picks apart using foreign precedent...

Thomas Galvan has an interesting piece on Scalia debating Bryer in a public forum recently. Scalia scored big points with these irrefutable points:

Quoting a phrase from a 1958 decision by Chief Justice Earl Warren — “the evolving standards of decency that mark the progress of a maturing society” — and noting that “I detest that phrase,” Scalia said some of his colleagues on the court employ “evolving standards of decency” to justify unilaterally imposing changes in death penalty laws, overriding the will of democratically elected state legislatures.

Scalia has called invoking foreign decisions a “dangerous” practice and he stuck to that position Thursday. But Breyer, Justice Anthony Kennedy and Justice John Paul Stevens have buttressed their decisions in death penalty and gay rights cases with citations of what foreign, especially European, judges have ruled in similar cases.

In the landmark 2003 decision Lawrence vs. Texas, finding a constitutional right to privacy which protects sodomy, Kennedy said the right which the two Texas men claimed “has been accepted as an integral part of human freedom in many other countries.”

He cited the European Convention on Human Rights and a 1981 European Court of Human Rights case.

But Scalia told the audience that “if you told the Framers of the Constitution that what we’re after is something that would be just like Europe, they would have been appalled.”

“Do we just use foreign law selectively? When it agrees with what the judges would like the cases to say, we use the foreign law and when it doesn’t, we don’t use it?” Scalia asked.

Although not mentioning Justice Kennedy by name, Scalia said that Kennedy’s decision in Lawrence vs. Texas arbitrarily used foreign precedents: “not all foreign law, just the foreign law that agreed with the disposition of the case.”

Scalia said he uses foreign precedents only when it comes to interpreting treaties, such as in a case last year, Olympic Airways vs. Husain, which involved the 1929 Warsaw Convention on air travel.