October 9, 2008


Looking for Law in All the Wrong Places (Deborah A. O'Malley, 10/8/2008, American Spectator)

Some Supreme Court justices have taken to using international law as a reference point to interpret provisions of the U.S. Constitution. Yale Law School Dean Harold Koh applauds the practice, hailing these justices for ushering in the dawn of a "transnationalist jurisprudence."

Not everyone is as pleased. Many -- lawyers and laymen alike -- think it shows a blatant disregard for national sovereignty. They lament that future lawyers attending one of the nation's most elite law schools are being inculcated with this misguided theory. Even more worrisome: Dean Koh is heavily rumored to be at the top of Barack Obama's Supreme Court short list -- bad news for those who wish to stop this theory's pernicious growth within the judiciary.

The high court is increasingly injecting international law into cases addressing purely domestic issues. In the court's outrageous 2005 decision overturning the death penalty for a brutal, 17-year old murderer, it was one of three major factors cited to justify the ruling. Invoking the "evolving standards of decency" doctrine that has, alas, become part and parcel of the Court's Eighth Amendment jurisprudence, the Court opined that there is an international consensus that these "evolving standards" forbid the execution of anyone under 18 years of age, no matter how heinous the crime. This international consensus was indicated in part by a treaty to which the United States is expressly not a signatory.

Rather than base their ruling on the original meaning of the Eighth Amendment, the five justices of the majority instead imposed foreign standards on American citizens in the name of our Constitution. In doing so, the Court audaciously elevated international mores above the considered democratic judgment of the states and called it "law."

...the Democrats being so estranged from American values, that winning control of the White House and both chambers of Congress has been so disastrous for them over the past 60 years--'48, '76, '92 and '64 (having only been saved from the '60 disaster by Lee Harvey Oswald).

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Posted by Orrin Judd at October 9, 2008 5:24 PM
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