November 12, 2003
WHAT THE HECK--THE FRENCH DO IT THAT WAY:
Foreign Invasion (Jacob T. Levy, 11.12.03, The New Republic)
In Lawrence v. Texas, the Supreme Court case that struck down sodomy laws, Anthony Kennedy's majority opinion referred to a European Court of Human Rights decision that had done the same thing some 20 years earlier. This promptly caused what had been a simmering dispute among Supreme Court justices to boil over into public view. Antonin Scalia, accusing (as he often does) the majority of making constitutional law up out of thin air, fumed in his dissent that "constitutional entitlements do not spring into existence ... as the Court seems to believe, because foreign nations decriminalize conduct." Scalia's chief constitutional concern has always been the final democratic sovereignty of the states and the people of the United States. In Scalia's view, judicial reference to foreign jurisdictions, like reference to an unenacted morality, undermines that sovereignty and de facto authorizes judicial lawlessness and arbitrariness--since there is no way to control which foreign decisions judges will smuggle into constitutional law.The response came on October 28, when Sandra Day O'Connor, apparently determined to live down Scalia's caricature of what it means to take judicial notice of developments abroad, gave an address to the Southern Center for International Studies in which she worried about "the impression created by the treatment of foreign and international law in United States courts." O'Connor seemed to be saying that it's somehow important to cultivate favorable opinions of the United States abroad by granting foreign legal rulings standing in American courts--a curious notion indeed. This quickly prompted concern on the right that "the European Council for Human Rights and the United Nations ... are being granted as much or more weight as American laws, or even the Constitution, in the Court's decisions," that "in the future, the U.S. Supreme Court will base its decisions on international law rather than the U.S. Constitution."
The combination of Scalia's rhetorical excesses and O'Connor's rhetorical sloppiness are creating a false impression of what's at stake here. International influence on American judicial thinking isn't just an option; it's inevitable. That said, there are right and wrong ways to assimilate foreign legal doctrine--a distinction that gets obscured in a contest between doing it the wrong way and not doing it at all.
Even Mr. Levy seems to recognize that Justice Scalia is right as he shifts the question from whether foreign opinions should have any legal standing to whether foreign legal thought should have any influence on our judges' minds. One interesting thing to note is how he characterizes Justice Scalia's "chief constitutional concern." Wouldn't anyone who doesn't share it be effectively opposed to the U.S. Constitution? Posted by Orrin Judd at November 12, 2003 7:14 PM
Mr. Judd;
It would also make such a Justice an oath breaker, would it not? I'd certainly support a litmus test for appointments to the federal bench of "do you believe that the US Constitution is the supreme law of the United States of America?".
Posted by: Annoying Old Guy at November 12, 2003 8:46 PMAgreed, but why is Orrin making this argument?
When the foreign opinion comes wrapped in Christian altar cloths, he's happy enough to require that Americans defer to it.
Posted by: Harry Eagar at November 12, 2003 8:57 PMAOG:
U.S. Constitution, Article VI [...]
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Posted by: OJ at November 12, 2003 9:58 PMThis question should be a major one for next year's Presidential debate, and the Republicans should certainly bring up the names of the Justices who either vote with such nonsense or speak about it in public. And one would hope that the Senate would issue some resolution addressing this point, with whatever teeth they can bare.
Posted by: jim hamlen at November 12, 2003 10:10 PMInadvertently, Harry helps make OJ's point even clearer. What has made America great is not having been the comatose recipient of an IV of European, or for that matter, any Foreign "wisdom"; but by actively chewing on the good stuff and spitting out rest (let alone, simply abstaining from even trying some of the really distasteful). I have seen Christianity practiced in Europe, Latin America, and the Middle East. And of course I have seen it being practiced less and less in the former region. Even something as "universal" as faith has been transformed by the American experience; in my mind, in mamy instances, for the better.
Posted by: MG at November 12, 2003 10:19 PMWhat's will be even more interesting to watch is which nation's laws are being cited by justices on the USSC. Right now it seems that only European laws count. If Justic O'Conner et. al. are really interested in the vague notion of "international opinion" and more importantly, if they are to adhere to the principles of multiculturalism held so dear by those who are the biggest proponents of looking to international law as a check on U.S. constitutional law, then they would look to all nations of the world--African, Islamic, etc. Methinks the notion of homosexual rights wouldn't be so clear cut when these other nations' views are accounted for.
Posted by: Matt Thullen at November 13, 2003 12:14 AMPersonally, I think citing foreign legal thought as opposed to our Constitution in these decisions should be impeachable--and would be if Congress would do its job.
Posted by: Southerner at November 13, 2003 12:35 AMMr. Thullen:
Apropos of your point, I believe it was Justice Stevens who relied on European jurisdictions in a 'cruel and unusual punishment' case. But why not rely on Nigerian jurisprudence (which allows for stoning women to death) or Saudi (public beheadings)? I imagine that His Honor (or Justice O'Connor) would respond that such jurisdictions are not sufficiently 'enlightened' to rely upon. Such reply, of course, would simply prove Justice Scalia's quoted critique that 'there is no way to control which foreign decisions judges will smuggle into constitutional law.'
Fred Jacobsen
San Francisco
If there ever was a need for a well-funded activist conservative thinktank or policy institute, it is on this issue, which conservatives ignored for far too long.
Like it or not, the phrase "international law" resonates positively with just about anyone who was inspired by "It's a Small World Anyway" at Disney. To be against "foreign opinion" is one thing, but to be against international law is almost like declaring yourself to be against constitutional law because you don't like what the SC is doing with the constitution. Besides, it can be useful, even good. Isn't the President's justification for invading Iraq based on it? Otherwise, what the heck is a "rogue state?"
To cede the concept to the left is like ceding "Christian charity" or even "peace". This issue needs to be tracked daily and fought in the trenches with moral and legal excellence. And a loud voice.
Posted by: Peter B at November 13, 2003 6:00 AMOJ:
Please read Harry's comment more closely. He was referring to the source of the opinion, not the Christianity within which it is wrapped.
Posted by: Jeff Guinn at November 13, 2003 8:09 AMJeff:
And where did Orrin say he thought Americans should be "required" to defer, the way the Supreme Court obviously does? Harry loves strong verbs.
Posted by: Peter B at November 13, 2003 8:23 AMI was thinking of, among other things, Orrin's views about excluding dissent, enforced by death.
If that's not a requirement, I don't know what is.
Posted by: Harry Eagar at November 13, 2003 2:11 PMHarry:
Seriously, I'm not following you. What modern Christian voice calls for death for dissent?
Posted by: Peter B at November 13, 2003 3:04 PMWell, Orrin, but he's a very heterodox Christian.
It's true, heresy-hunting is as American as apple pie.
Posted by: Harry Eagar at November 13, 2003 5:04 PMHarry:
Yes, Orrin does, but only for Canadians.
C'mon, Harry.
Posted by: Peter B at November 13, 2003 6:57 PMFor the 457th time the Justices of the SCOTUS (save Scalia and Thomas) are simply making it up as they go along. If they would be straight up about it I would give them some credit, but they come up with garbage like the European Court of Tennis to cover their tracks.
Kill them all, God will know his own.
Posted by: Robert Schwartz at November 13, 2003 7:55 PMO'Connor received the 'World Justice' award. World Justice is to justice what World Wrestling is to wrestling; it's not. If only she'd cited the tribunal Galacticus from the 25th Century, she could have received the 'Cosmic Justice' award also.
The issue is not so much from where they pluck their legislative preferences, but the act of legislating itself. The Court beleives itself to be first among equals, but as a derivative & un-elected branch, it should be last.