Thursday, December 18, 2008

Why Justice Breyer Contradicts Himself

Justice Breyer has been known for arguing that the US Supreme Court should feel free to take foreign law into account when construing the US Constitution.

But the Supreme Court's 2002 voucher case is a good example of implicit self-contradiction. In that case -- which held that Cleveland's voucher program did not violate the Establishment Clause -- Justice Breyer dissented on the theory that vouchers lead to political strife. But Justice Breyer completely ignored the experience of Belgium: as I point out below, Belgium settled on school vouchers some fifty years ago precisely as a way to avoid strife.

Here's Justice Breyer writing in the Zelman case:
I write separately, however, to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so because I believe that the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program.

* * *

Under these modern-day circumstances, how is the “equal opportunity” principle to work–without risking the “struggle of sect against sect” against which Justice Rutledge warned? . . . [J]ust how is the State to resolve the resulting controversies without provoking legitimate fears of the kinds of religious favoritism that, in so religiously diverse a Nation, threaten social dissension?

Quite apart from the falsity of Breyer's prediction (as shown by the lack of strife over the past several years), Breyer's only nod at foreign evidence came in this paragraph:
I recognize that other nations, for example Great Britain and France, have in the past reconciled religious school funding and religious freedom without creating serious strife. Yet British and French societies are religiously more homogeneous–and it bears noting that recent waves of immigration have begun to create problems of social division there as well. See, e.g., The Muslims of France, 75 Foreign Affairs 78 (1996) (describing increased religious strife in France, as exemplified by expulsion of teenage girls from school for wearing traditional Muslim scarves); Ahmed, Extreme Prejudice; Muslims in Britain, The Times of London, May 2, 1992, p. 10 (describing religious strife in connection with increased Muslim immigration in Great Britain).
Not very convincing -- Breyer does nothing to show that the level of religious strife in Britain and France has anything to do with the nature of school funding.

Perhaps more significantly, Breyer doesn't even nod at the evidence from Belgium. Belgium used to experience strife over its public schools -- whenever the balance of power shifted in Belgium, conflicts would arise because the authorities now wanted to make the schools more or less Catholic. Belgium finally arrived at the so-called "Schulpakt" -- or "school peace" -- in 1959. Since then, all students have been given what are essentially vouchers to use at any school. The state itself does establish schools where needed, but the funding still flows with the student (as I understand it, from a Belgian friend).

Again, the Belgians call this arrangement "school peace." The notion is that there will be less strife -- not more -- when students and parents are free to select into groups of similar peers if they desire, rather than being forced into a single "public" school where many people are trying to force their own preferences onto everyone else.


Blogger Ray said...

I agree 100%.

Breyer basically reasons that the Establishment clause has the purpose to prevent religious strife. So he says school vouchers would increase religious strife, thus he opposed it.

Yet, this is exactly the trap Scalia warns about. Is Breyer an expert on education? Is he an expert on religion and world affairs? By having the court look at purpose and consequence, you immediately step out of your field and into whatever you decide in your head. Indeed, where is the evidence that school vouchers will increase religious strife? They are there in Chile, Sweden, Alberta... all throughout the world. If you're going to look at consequences, then you need evidence. You would need compelling evidence as well to prevent states from using them. Yet, Breyer doesn't follow his own rules and seek evidence when examining purpose. He just assumes, falling for the very trap Scalia warns about.

The evolving constitution talk by Breyer seems nice until he gets to explaining specifics. Then I think you begin to see the trap it sets forth.

12:36 AM  

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