Page images
PDF
EPUB

In attacking originalism as “frozen in time,” Ginsburg slights the genius of the Framers in setting up a system in which the people, through their elected representatives and within the broad bounds established by the Constitution, adapt the laws to changing times. She claims that judges “honor the Framers' intent to create [sic] a more perfect Union"" when they rewrite the Constitution to comport with their own understandings of the needs of the day. But it is "We the People of the United States," not judges, to whom the Constitution looks to "form a more perfect Union.”

The second basic flaw in Ginsburg's speech is signaled by her elusive subtitle. What exactly does a "comparative perspective” in constitutional adjudication mean, and what is its value? Addressing a group of international lawyers, Ginsburg resorts to kindergarten talk—"we can learn from others,” “we can join hands with others,” we should “share our experience”—but never even attempts to explain how a foreign court's decision on how a foreign law measures up to a foreign charter can or should have analytical value in construing our Constitution. She emphasizes that she does not regard foreign decisions as "controlling authorities." But she clearly leaves open the possibility that those foreign decisions could be the dispositive tipping factor in any particular case.

Preserving her own flexibility to pick and choose opportunistically, Ginsburg also utterly fails to delineate any principle that would dictate when foreign decisions should come into play and what weight they should have. In short, she has no response to Scalia's criticism: "To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

When Ginsburg's position is clear, her understanding is muddled. Ginsburg points out that the Framers understood that the United States "would be bound by the Law of Nations,' today called international law." But even setting aside her badly confused and simplistic equation of the Law of Nations with international law, the Constitution's conferral of power on Congress "[t]o define and

punish... Offenses against the Law of Nations” makes clear that it is up to Congress, not judges, to determine which obligations under the Law of Nations should apply domestically.

Similarly, Ginsburg points out with pride that her separate opinions in the Michigan racialpreference cases cite two United Nations Conventions—one that the United States has ratified, and one that “sadly” it “has not yet ratified"—as evidence that the international understanding of racial preferences supports her application of the Equal Protection Clause. But the very fact that she sees no effective difference between a ratified treaty-which (whether or not it has any domestic effect) is part of "the supreme Law of the Land" under the Constitution—and an unratified convention demonstrates the incoherence of her views.

Ginsburg also specifically expresses her disapproval of H. Res. 97 and asserts that “it is disquieting that [H. Res. 97 and its Senate counterpart] have attracted sizable support."

b. Justice Breyer

In January 2005, Justice Breyer and Justice Scalia engaged in a public debate on the constitutional relevance of foreign court decisions. The transcript of that debate is available online at

http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/1F2F7D C4757FD01E85256F890068E6E02OpenDocument. My quotations below are taken from that transcript.

In his remarks, Breyer made explicit what was fairly implicit in Ginsburg's speech-namely, that it is impossible to develop any rules on when the Court should rely on foreign court decisions in construing the Constitution and which decisions it should look to. (“[I]f you're going to develop a jurisprudence of when to refer to a non-binding decision of a foreign court, I mean, it's—I'll agree that isn't going to work.") Nonetheless, he offered the following propositions in support of invoking foreign court decisions in construing the Constitution. I respond very briefly to each.

1. "[I]n some of these countries there are institutions, courts that are trying to make their way in societies that didn't used to be democratic, and they are trying to protect human rights, they are trying to protect democracy. They're having a document called a constitution, and they want to be independent judges. And for years people all over the world have cited the Supreme Court, why don't we cite them occasionally? They will then go to some of their legislators and others and say, 'See, the Supreme Court of the United States cites us.' That might give them a leg up, even if we just say it's an interesting example."

[ocr errors]

The idea that Supreme Court Justices should craft their opinions with an eye towards influencing internal political struggles in foreign countries is truly a remarkable misconception of the judicial

role.

2. "I think I may have made what I call a tactical error in citing a case from Zimbabwe-not the human rights capital of the world. But it was at an earlier time-Judge Gubei (ph) was a very good judge. So I had written this. And of course I looked—I don't think that's controlling. But I'm thinking, Well, on this kind of an issue you're asking a human question, and the Americans are human—and so is everybody else. And I don't know, it doesn't determine it, but it's an effort to reach out beyond myself to see how other people have done though it does not control." (Emphasis added.)

Of course foreigners are human. That proposition does not remotely explain how a foreign
court's decision on how a foreign law measures up to a foreign charter can or should have
analytical value (or any other force) in construing our Constitution.

3. "Well, it's relevant in the sense that you have a person who's a judge, who has similar training, who's trying to, let's say, apply a similar document, something like cruel and unusual or there are different words, but they come to roughly the same thing-who has a society that's somewhat structured like ours. And really, it isn't true that England is the moon, nor is India. I mean, there are

human beings there just as there are here and there are differences and similarities.... And the fact that this has gone on all over the world and people have come to roughly similar conclusions, in my opinion, was the reason for thinking it at least is the kind of issue that maybe we ought to hear in our court, because I thought our people in this country are not that much different than people other places.” (Emphasis added.)

⚫ It is a foundational principle of this nation that “all Men are created equal [and] are endowed by their Creator with certain unalienable Rights." In this fundamental respect, and many more incidental respects, it is clearly the case that the American people “are not that much different” from foreigners. One obvious relevant difference, however, is that "We the People of the United States" are governed by the Constitution of the United States, and people who live in other countries are governed by their own countries' laws. Breyer's observation has no weight in explaining why provisions in our Constitution—which was established in an exercise of the principle that "Governments... deriv[e] their just Powers from the Consent of the Governed”should be construed in light of foreign laws or legal decisions that either reflect the consent of the governed in those countries or were imposed on them.

Conclusion

No Justice has articulated, and there is not, any legitimate basis for the Supreme Court to rely on contemporary foreign laws or decisions in determining the meaning of provisions of the Constitution. Moreover, it is clear that there is no principle that any Justice has devised or will adopt that will explain why it would be proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others. The six Justices who

nonetheless resort to these materials do so because they embrace an essentially lawless-i.c.,

unconstrained-view of their own role as Justices.

It is no coincidence that it is these same six Justices who have endorsed the vacuous New Age declaration that "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." For that declaration is nothing more than camouflage for the underlying claim by those Justices to have the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of American citizens to address through legislation.

The Framers established a constitutional structure under which American citizens, within the

broad bounds delineated by the Constitution, have the power and responsibility to decide how their own states and communities and the nation should be governed. In their ongoing project to demolish that structure, these six Justices see foreign law as another powerful tool that they can wield whenever it

suits them.

It follows that the broader long-term solution to the problem that H. Res. 97 usefully addresses is the confirmation to the Supreme Court of originalist Justices, like Scalia and Thomas, who understand that the Constitution constrains them to construe its provisions in accordance with the meaning they bore at the time they were promulgated and that it does not permit them to impose their own policy preferences on the grand (or minor) questions of the day.

« ՆախորդըՇարունակել »