The background information that fantomas didn't bother to include...
Last month, Justice Ruth Bader Ginsburg gave a speech in South Africa defending the Supreme Court's (and her) use of foreign law in adjudicating cases under our Constitution. Here are some key excerpts:
An introduction by Justice Ginsburg... A mid-19th century U.S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote:
QUOTE
No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U.S. Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.
QUOTE
Justice Ginsburg's comments
Those words were penned in 1857. They appear in Chief Justice Roger Taney's opinion for a divided Court in Dred Scott v. Sandford, an infamous opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage. The Dred Scott decision declared that no \"descendants of Africans (imported into the United States), and sold as slaves\" could ever become citizens of the United States.
While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution reversed the Dred Scott judgment, U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed spirited opposition. Justice Scalia counsels: The Court \"should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.\"
... Many current members of the U.S. Congress would terminate all debate over whether federal courts should refer to foreign or international legal materials. For the most part, they would respond to the question with a resounding \"No.\" Two identical Resolutions reintroduced last year, one in the House of Representatives and the other in the Senate, declare that \"judicial interpretations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such [materials] inform an understanding of the original meaning of the Constitution.\" As of December 2005, the House Resolution had attracted support from 83 cosponsors. Two 2005-proposed Acts would do more than \"resolve.\" They would positively prohibit federal courts, when interpreting the U.S. Constitution, from referring to \"any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the [U.S.] Constitution.\" [Even reference to a Scottish verdict, i.e., a verdict of not proved, it seems, would be out of order.]
These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe. A personal example. The U.S. Supreme Court's Marshal alerted Justice O'Connor and me to a February 28, 2005, web posting on a \"chat\" site. It opened:
“Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases.
This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.”
Nearly a year has passed since that posting. Justice O'Connor, though to my great sorrow retired just last week from the Court's bench, remains alive and well. As for me, you can judge for yourself.
To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of \"common denominators of basic fairness governing relationships between the governors and the governed.
Where to begin?
It is unseemly for a Supreme Court justice to smear judicial originalists, including members of Congress, by lumping them with some nutjob who wrote a disgusting post on some website. Ginsburg’s purpose is to paint legitimate critics of her extreme activism and the Court’s excesses as encouraging physical threats against justices. To the best of my knowledge, Ginsburg has never spoken publicly about the attacks on the judiciary or nominees to the bench by leftwing groups, bloggers and members of Congress — whose rhetoric and tactics are typically poisonous. Perhaps the reason is that she’s sympathetic to their goal, which is the perpetuation of judicial supremacy.
Ginsburg’s history lesson on Dred Scott is fiction. Chief Justice Roger Taney, who she tries to paint as an originalist, was actually an activist. She ignored Justice Curtis’s dissent because it would have disproved her argument in support of using foreign law to interpret the Constitution. Curtis wrote, in part:
QUOTE
When a strict interpretation of the Constitution, according to fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean.
Nothing in the Constitution supports the holding in Dred Scott that blacks (or slaves) are property. And the most prominent critic of this decision and the Court was Abraham Lincoln. I suppose had Ginsburg been on the Court in 1857, she might have viewed Lincoln as threatening, too.
Moreover, an early and vocal critic of the Supreme Court was Thomas Jefferson, especially after Chief Justice John Marshall’s ruling in Marbury v. Madison, the source of judicial review. For years Jefferson lambasted the Court’s power. In 1825 he wrote, in part:
QUOTE
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privileged of their corps … and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whether hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
In 1825 Jefferson wrote, in part:
QUOTE
This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is … by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.
I suppose Jefferson was appealing to “the irrational fringe.”
What Ginsburg and other activists don’t appear to realize is that they are undermining the legitimacy of the judiciary by their refusal to accept the limited role of judges in our constitutional system. The Court’s repeated interposition into political and policy areas invites the kind of scrutiny and criticism received by politicians and policymakers. And the public is growing increasingly resentful of justices and judges who use their office to impose their personal preferences on society. And rather than smearing legitimate critics or tuning them out, Ginsburg and her colleagues could learn something from them.
[ March 16, 2006, 11:57 AM: Message edited by: MIB ]
