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Courting Disaster

April 14, 2009

Courting Disaster

By INVESTOR’S BUSINESS DAILY | Posted Monday, April 13, 2009 4:20 PM PT

Jurisprudence: For Supreme Court Justice Ruth Bader Ginsburg, U.S. law is not enough. She believes American judges should apply foreign law to domestic cases. How can such a person serve on our highest court?


Read More: Judges & Courts


Speaking last week at Ohio State University’s Moritz College of Law at a symposium in observance of her 15 years on the Supreme Court, Ginsburg said she didn’t “understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.”

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law-review article written by a professor?” said the Clinton appointee, who once was a lawyer for the ACLU.

If only Ginsburg were alone in taking that position.

Justice Stephen Breyer, also a Clinton appointee, and retired Justice Sandra Day O’Connor have both supported the practice of drawing on foreign law in American courts.

Justice Anthony Kennedy, who like O’Connor has been something of a disappointment as a Reagan appointee, also has a record of looking abroad for judicial inspiration.

Writing for the majority in the 2005 Roper case that overturned a death sentence for a 17-year-old convicted of murder, Kennedy cited an “overwhelming weight of international opinion,” including opposition among “leading members of the Western European community” to the execution of juveniles, as a factor in the ruling.

Either the U.S. Constitution is the foundation of our law, or it isn’t.

If so, then to go outside of our borders seeking judicial wisdom is both unlawful and destructive to our system. If it isn’t the supreme law of the land, then the law becomes whatever the most politically powerful or violent elements of society say it is.

That’s a step backward, not forward, a devolution into a modern mobocracy that would be difficult to reverse.

No matter what its intentions, no matter how insightful its judgment might be, a foreign court cannot tell Americans what their Constitution means. They were neither elected by U.S. voters nor appointed by an authority who was. They have no accountability to American citizens or our system of laws. Their views are irrelevant.

The only relevance is what the framers of the Constitution intended when they wrote it. Courts have no right to twist or ignore the meanings of their words, or to apply present-day drifts of public opinion. The Constitution is not a malleable document or list of suggestions. If that is all it is, then it is nothing.

The U.S. Constitution isn’t perfect, but it is the best that humanity has ever devised. No nation in history has expanded liberty and has been as just as the U.S.

No nation has contributed to the evolution of equitable law more than America has in its relatively short 232-year history. None has better shielded its people from the power of government. Nowhere else has speech been freer, the right of assembly more strongly guaranteed, the rights of the accused more protected and minorities more zealously safeguarded than they have been here in the U.S.

We owe the English a debt for their contribution to our system. It is their system of common law that America has built upon. That debt does not mean, however, that we have to look to British law to inform rulings made on our own soil concerning our own people.

More than two decades before the Founders wrote and ratified the Constitution, the colonists declared their independence from Britain. While the nation has since made many alliances in commerce and in war, it has been judicially independent and it must remain so.

Other nations should be borrowing ideas from us. Any justice worthy of the Supreme Court should recognize this.

While it’s too late to do anything about those on the court who don’t, it’s not too late to ensure that no future justice will be swayed by foreign law. Those who would need to be weeded out by the confirmation process.

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