For some years since his appointment to the U.S. Supreme Court, Mr. Justice Stephen Breyer has written in cogent and appealing prose his concurrences and dissents. Both are marked by tempered argument and exquisite reason.
Beyond that, which is proper to his office, he has written important books. The two I have read -- Active Liberty and Making Our Democracy Work -- illuminate what America's possibilities have ever been about. Of late, though, the realization of those possibilities has been hampered by a tiresome, partisan standoff that has reduced Congress to a state of collective idiocy.
Among the intractable issues just now dividing the Right from the Left is the idea that American jurisprudence could be enriched by considering and respecting the laws of other nations. Mr. Justice Breyer has suggested more than once that what some call foreign law could be of help in the interpretation of American law.
For that, Mr. Justice Breyer has been lambasted in the best style of the ideological Luddites of the Republican Party. The bare mention of foreign law brings forth from that asylum uninformed puffery about "American exceptionalism" cast in the language of raw nativism.
Consider the terms "foreign" and "foreigner." They are at best relative terms. To the Afghan, Americans are foreigners and their law foreign. To the German, Americans are foreign. Even to the Canadians. Try a border crossing these days, but not if you're in a hurry.
A piece of liturgical poetry that can be dated anywhere from 400 to 200 BCE and known as Psalm 24 offers a far different view than the nationalism of any country's chauvinists can provide:
The earth is the Lord's, and the fullness thereof; the world, and all they that dwelt therein.
Forgiving the deity-centered philosophy of two and a half millennia ago, one can see in that telling line the idea that humanity inhabits a common planet, breathes the same oxygen, feels the pelting of the same rain and otherwise shares tenancy, not ownership, of the planet.
Homo sapiens is a species that for some thousands of years has been the predominant mammal on Earth. From the manufacture of primitive tools and weapons, to enabling the agricultural revolution, to the erection of modern civilizations, Homo sapiens has emerged from the evolutionary process as Charles Darwin famously figured out.
Depending on what continent and what part of which continent the evolutionary process has taken place, Homo sapiens has appeared with different skin colorings, facial features and developed languages that differ in some cases widely from one another. But once known of, anyone from anywhere with above-average intelligence can, with patience and hard work, learn what we call a "foreign language." But it is neither foreign to the people who speak it nor would it be to the ancestors of such people.
The Homo sapiens native to the habitable parts of the Arctic has the same genome as the native of a forgotten jungle on a remote Pacific island or as one who is part of the man swarm on the streets of Manhattan, London, Beijing or Mumbai.
We all have in common what another liturgical document calls "this fragile Earth, our island home."* That commonality leads by logic to the idea of community, thence to cooperation. It means that one nation or several nations have not the right to behave in ways that disadvantage other nations.
For example, the unabated burning of fossil fuels by the industries and automobiles of First World nations -- which directly affects rising sea levels in other parts of Earth, which in turn impairs agriculture causing food insecurity for millions of people and which also salinizes drinking water and otherwise enables the spread of mortal sickness and disease -- amounts to criminal behavior.
Is that why Mr. Justice Breyer's enlightened commentary on "foreign law" so alarms some number of American politicians and officeholders? It is bad enough, they would say, that any U.S. military person should be tried for war crimes by another nation, but for them to concede that America in general may be culpable for the suffering of human beings far away would be completely unacceptable. They believe in the theology of "might makes right."
Meanwhile, if the U.S. Chamber of Commerce and its partners in the nation's George Babbitt luncheon clubs are afraid of foreign law now, they should only read Mr. Justice Breyer's newest book -- The Court and the World: American Law and New Global Realities.
In the current iteration of America's eternal, everlasting campaign, it has been left to Bernie Sanders and Hillary Clinton occasionally to remind the American electorate that the nation and the world face several ecological emergencies. Republican presidential aspirants dare not mention such things because the big money each would need to cross the finish line first on November 8, 2016, would be denied them.
The abuse of this fragile Earth, our island home therefore can be of no account where they're concerned. They are firm in their insistence that no "foreign law" shall be allowed to interfere with America's self-centered pillaging of what are not endless resources. As a well-known bully in my hometown was wont to say, "Him that's firstest gets the mostest." That bully died young of overeating.
*Book of Common Prayer 1979. New York, NY. The Seabury Press. 370
Footnote: To the critical eye, the essay above would seem to contradict the sentiment of its predecessor by a week in which I wrote that I was pretty much done with the current political scene. Pretty much. Blame today's offering on the brilliance of Mr. Justice Breyer and on Volkswagen's deliberate technological trickery that, for profit and market renown, allowed its automobiles to spew poison into the air my grandchildren breathe.
|