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March 16, 2006
Hoo-Boy!
Supreme Court justice Ruth Bader Ginsburg roused herself from her slumbers long enough to fly down to South Africa(!) and give a speech in which she opined mightily on the proper role of foreign law in interpreting the Constitution. Via Powerline (emphases mine) :
Ginsburg's speech was titled "A Decent Respect for the Opinions of [Human]kind." In it, Ginsberg argued explicitly for the relevance of foreign law and court decisions to interpretation of the American Constitution. Ginsburg did not try to hide the partisan nature of this issue; at one point, she referred to "the perspective I share with four of my current colleagues," [...]Ginsburg contrasted our Constitution (unfavorably, I think it's fair to say) with the Constitution of South Africa, which specifically provides for the use of foreign law in interpreting its provisions.
You really should read the entire speech, but its argument is most concisely stated here:
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."This is, to put it politely, nonsense. In our system of government, the courts are not called on to determine what "basic fairness governing relationships between the governors and the governed" requires. For legal purposes, issues of "basic fairness" were decided when the Constitution was authored and approved by the initial thirteen states, and when the document has been amended over the subsequent centuries.
John Hindraker is much more in control of his manners than I am right about now...he's also a very smart and accomplished attorney, and you should read his post for his thorough demolition of Ginsburg’s water-thin argument. But you don't need to be a lawyer to see the falsity that permeates Ginsburg’s speech; her deep contempt for the idea of the Constitution as the ultimate law of the land is obvious. As John points out, Ginsburg’s Constitution is merely a "roving charter" that allows the nine justices to interpret the law as they see fit. Bullcrap.
Has the Bush administration lost its way in domestic policy? Maybe. Is the war in Iraq headed for disaster? Could be. But no matter what happens, the ascension of Roberts and Alito to the Supreme Court is already a grand enough legacy for GWB's presidency. Thank God this woman is marginalized on the Court.
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