August 4, 2003
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Ginsburg: Int'l Law Shaped Court Rulings (AP, 8/2/2003)The Supreme Court is looking beyond America's borders for guidance in handling cases on issues like the death penalty and gay rights, Justice Ruth Bader Ginsburg said Saturday....
"Our island or lone ranger mentality is beginning to change," Ginsburg said during a speech to the American Constitution Society, a liberal lawyers group holding its first convention.
Justices "are becoming more open to comparative and international law perspectives," said Ginsburg, who has supported a more global view of judicial decision making....
"While you are the American Constitution Society, your perspective on constitutional law should encompass the world," she told the group of judges, lawyers and students.
Once our elite ceased to believe that the authority of law derives from the people, but rather from the authority of authorities, this was a natural next step. For then there's no reason why authorities approved by the people or their representatives -- the written Constitution, or statutory law -- should have primacy over foreign authorities such as the UN or European Union, or domestic non-popular authorities such as law school professors. And if all authorities count equally, why shouldn't Justices choose the ones they agree with?
But I would dearly love to hear Justice Ginsburg explain why it's desirable that the U.S. -- and presumably all nations -- should have "a perspective on constitutional law" that "encompasses the world." It sounds as though she is advocating a global homogenization of law, rather than diversity of law. But diversity allows for innovation, experimentation, and learning. Countries can watch each other, mimic the most successful trials. This is how almost all empirical knowledge is acquired; and given the widespread disagreement over politics, it would seem that untested theorizing is not going to discover and create a consensus around the best legal arrangements. We need diversity in law if humanity's knowledge of legal arrangements is to advance, but Justice Ginsburg is advocating the end of experimentation. It is as if a cancer doctor were to pick a single drug candidate, say, "let's all unify around this one treatment regimen," and advocate the termination of all clinical trials, before there is agreement in the cancer community on what treatment is most effective.
In other news, a reader of How Appealing reports that "the biggest applause line in Senator Hillary Clinton's speech [to the ACS] was the charge 'there really is a vast right-wing conspiracy'."
Yes, and it gets stronger every time one of our patriotic Democrats (for let there be no doubt, I am not questioning their patriotism) advocates that we become Europe rather than America.