Justice Ginsburg's New Mentor: Ban Ki Moon
Last Friday at a speech at American University, Justice Ginsburg gave a stout defense of the practice of using foreign law to decide constitutional questions. The speech is a frightening window into the Judicial wing of the movement to European-ize the US.
In 2005, the Supreme Court issed a decision (Roper v. Simmons) in which the majority held that the meaning of the Eighth Amendment's ban on "cruel and unusual punishment" could (and should) be elucidated on the basis of international law. The Justices relied on a grab-bag of UN conventions (including conventions that had not been ratified by the US) and other foreign law. Justice Antonin Scalia sharply, and correctly, rebuked the majority for engaging in "sophistry."
Ginsburg argues that the Founders themselves would have wanted foreign law to be used to elucidate the Constitution. As proof, she cites evidence that the Founders, and other early jurists, recognized the force of international law (such as treaties) as well as customary international law (such as international mercantile law). Oh, and she also relies heavily on the Declaration of Independence's "decent respect for the opinions of mankind."
This is the best she can do? Of course the Founders recognized the binding force of treaties; the Constitution provides that treaties shall be the law of the land. No conservative - much less Scalia - is arguing that treaties aren't binding. But the liberal wing (supported by Kennedy on this issue) is invoking non-binding contemporary foreign law as evidence of the meaning of constitutional amendments drafted in 1791. And as for the Declaration? Come on! It was a declaration of Independence from the Old World.
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Jul '10
Re: Justice Ginsburg's New Mentor: Ban Ki Moon
It is time to refer to these people as what they are;
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."
Oathbreaker!
Re: Justice Ginsburg's New Mentor: Ban Ki Moon
Adam, the specific portion of the Declaration that contains the phrase Ginsburg cites actually says that a "... decent respect for the opinions of mankind..." compelled the Founders to explain why they were breaking free of Britain, which is the antithesis of Ginsburg's message.
It's worse than sophistry and worse than mangled semantics, in my opinion. Under our system, aren't judges and justices supposed to rule on the basis of law? And aren't laws supposed to be written by the representatives of the American people? Isn't this the very basis of our representative republic? If the judiciary takes into account laws that are not (theoretically at least) reflective of the people's wishes as expressed through their representatives, then isn't the judiciary effectively precluding the people's participation in their own governance? Does this not cross the threshold into a sort of judicial subversion?
Jun '10
Re: Justice Ginsburg's New Mentor: Ban Ki Moon
(http://www.wcl.american.edu/secle/founders/2005/050113.cfm) SCALIA: I do not use foreign law in the interpretation of the US Constitution. Now, I will use it in the interpretation of a treaty. In fact, in a recent case I dissented from the Court, including most of my brethren who like to use foreign law, because this treaty had been interpreted a certain way by every foreign court of a country that was a signatory, and that way was reasonable, although not necessarily the interpretation I would have taken as an original matter [...] But apart from that [...] we don't have the same moral and legal framework as the rest of the world, and never have [...] if you read the Federalist Papers, it's full of, you know, statements that make very clear they didn't have a whole lot of respect for many of the rules in European countries. Madison, for example, says -- speaks contemptuously of the countries on continental Europe, quote, "who are afraid to let their people bear arms," closed quote. You mentioned [Miranda]. Well, I don't know the law in Russia. You say Russia has adopted [it]. Has it adopted the Exclusionary Rule?
Re: Justice Ginsburg's New Mentor: Ban Ki Moon
Not much diversity in Justice Ginsburg's preferred "Opinions of Mankind." Where's Saudi Arabia's input on the proper regulation of "intimate sexual conduct" between "two adult persons of the same sex"? Instead, all we get is the European Court of Human Rights. Smacks of neo-colonialism to me.
Don't non-European countries have courts and useful thoughts about the law? Are we to be governed by the thinking of Dead White Europeans forever?
Shouldn't we think about citing law from foreign locales with relevant expertise in the matter at hand? Ginsburg brings in decisions citing "the overwhelming weight of international opinion" concerning the execution of minors and the mentally retarded, but considers the opinion of only those societies with very little relevant experience. Shouldn't more diverse views from courts in such as Sudan, North Korea and Cuba -- courts facile at adjudicating a plethora of capital crimes -- count when assessing "overwhelming weights of international opinion"?
Re: Justice Ginsburg's New Mentor: Ban Ki Moon
I don't know, Adam. What's the real harm? They already don't read the Constitution. You've gotta have some kind of authority to lean on. Why not the Supreme Court of Burkina Faso? Why not open up oral arguments to some of those Burmese lawyers we keep hearing about. And they're awfully clever in Uruguay. Let's not stop there. I like those weird starchy bibs the judges wear in Sweden. And why not powdered wigs?
May '10
Re: Justice Ginsburg's New Mentor: Ban Ki Moon
Contemporary liberals like Ginsberg have an affinity for foreign laws, especially European laws because such laws often recognize "positive rights," i.e., claims to material goods or favorable conditions that require the coerced compliance of others. These include "rights" to healthcare, a living wage, housing, etc. Naturally, these "rights" conflict with negative rights, those being claims to particular freedoms of action.