Trying to undermine checks and balances

In a recent opinion that is hostile to the traditional American system of checks and balances, Justice Stephen Breyer said that a world order is coming into being. The Supreme Court, he said, should consider taking judicial notice of the culture of this new world order in formulating its opinions. More recently, Justices Breyer, Sandra Day O’Connor, and Ruth Bader Ginsberg went to Europe to investigate the position of this new world order on the death penalty.

To understand why Justice Breyer’s suggestion is inimical to the American system of checks and balances, a distinction is needed between relevant and irrelevant constitutional issues.

The issue is not whether many Americans believe the death penalty is cruel or unusual. Responsible scholars and jurists disagree on this issue. Nor is the issue whether the cultures of other societies should be taken into account in political and legislative processes. Political processes that do not assess the historical and comparative experience of humanity are surely flawed. The relevant constitutional issue is about when cultural change can be used as grounds for constitutional decisions.

If the court incorporates Justice Breyer’s putative new world order into constitutional law, it would undermine the American system of checks and balances. These were installed in the mechanics of American government by the Founders to prevent possibly transient, even if powerful, cultural movements from undermining a system designed to preserve the established freedoms of the American people within the framework of representative government.

Because Justice Breyer’s opinion on the role of a new world order in Supreme Court decisions does not meet the standard the Founders institutionalized, it is as illegitimate today as it would have been in the 1930s.

In that period, an even more pervasive world order than the one the justices encountered on their European trip was inserting its hooks into the American body politic. Anne Lindbergh had published “The Wave of the Future.” The Ku Klux Klan was powerful in many Northern as well as Southern states. The Silver Shirts and the Coughlinites had mass followings. Upton Sinclair’s “It Can’t Happen Here” predicted fascism would come to America in the guise of anti-fascism.

If Adolf Hitler had won, that world order would have become dominant. In that case, it is likely that some American states would have begun to implement the culture of the new world order legislatively. Likely, as a first step, Jews and blacks would have been moved into ghettoes. Soon more radical restrictions would have been implemented.

What should the role of the court have been in such a fascist world order? Should it have sent a delegation to Nazi Germany, Fascist Italy and Falangist Spain to study their cultures as a prelude to incorporation? Or should it have ruled against fascist laws as contrary to the established culture of the American system even if they were pervasively characteristic of the fascist world order?

Fascist culture had significant support in the United States in the 1930s just as abolition of the death penalty has significant support in the contemporary American culture. There are two extremist positions on how courts can deal with such cultural changes. One holds that only the original position has binding constitutional merit. The other holds that courts can recognize changes in the original position when they have support in the culture. Both are inconsistent with the American constitutional system.

There is a third position that is thoroughly consistent with the system of checks and balances that the Founders installed to preserve our established rights within the framework of representative government. If the court allows popular pressure on the legislature to revoke established rights before the culture has been pervasively and enduringly changed, it forsakes its important checking role. If it acts to incorporate opinion before the culture has been pervasively and enduringly changed, it usurps the legislative function.

There are several legitimate methods for producing the results Justice Breyer wants. The states, as many have, can eliminate the death penalty. A constitutional amendment can incorporate the rules of a new world order. International cultural influences, as well as domestic ones, in time can bring about pervasive and durable changes in American culture, including in the meaning of cruel and unusual that invalidate prior understandings.

The way in which Justice Breyer and his cohorts wish to bring about this result would radically transform the American system, the most durable system of representative government and liberty the world has ever known. The advocacy of the Breyer approach by some justices is a repudiation of the rule of law in favor of the rule of judges.

Morton A. Kaplan, distinguished service professor of political science emeritus at the University of Chicago, is the editor and publisher of The World & I, the monthly publication of The Washington Times Corp.