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Wednesday, March 22, 20061143052200
Washington Post Criticizes Ginsburg Over Foreign Law
"Citing Foreign Law," Washington Post, 21 March 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/03/20/AR2006032001674.html (from NRO's Bench Memos).
I've applauded Chief Justice Roberts successful attack on so-called international law. Roberts' victory is all the more encouraging because of the division of the Supreme Court on a closely related matter: foreign law.
Foreign law, which has been attacked by the Attorney General and Justice Scalia, differs from "international law" in that it is actually law, somewhere. While there was once a real international law based on the Catholic Church, in modern times "international law" means at best the socialization of states and at worst a strange morality.
When applied to cases in the United States, both are threats to our freedom and democracy. Freedoms we hold dear, like free speech, are routinely ignored by other countries like China and Germany. At best, an "honest" use of foreign laws by the Courts would lead to a lessening of freedoms in the United States, as are laws are harmonized with the less-free acts of foreign parliaments and potentates.
However, those lovers of "foreign law" are not so honest. They wish to use foreign law to get opinions that would be impossible otherwise. For example, liberal justices like Ruth Bader Ginsberg will use European criminal law (which is more liberal than American criminal law) to liberalize our justice system, but have not (yet) used European abortion laws (which are more conservative than American abortion laws) to make life safer for the unborn.
Don't take my word for it: take the Washington Post's:
At the same time, Justice Antonin Scalia offers some reasonable criticisms of how the court has used foreign precedents -- that is, selectively, when foreign law supports results that the court cannot justify based on American authorities alone. As Justice Scalia points out, justices cite foreign precedents in capital cases, where European law is far more liberal than American law, but not in abortion cases, where it is more restrictive.
Ginsberg, recognizing her weak position, has compared those who oppose permissive use of foreign laws to the old Apartheid government of South Dakota.
Of course, she also hides behind sex stereotypes and complains of right wing terrorists-sympathizers in Congress, so it's not surprising behavior for her.
12:30 Posted by Dan tdaxp (Webmaster) in Courts, Law | Permalink | Comments (2) | Email this | Tags: washington post, ginsburg, foreign law
Comments
If EU or European state laws ( most of which are premised upon the old Code Napoleon and not common law principles) is permissable, then by what standard can SCOTUS then exclude laws from:
Iran
Hitler's Germany
The Soviet Union
China
The Sharia
North Korea
And so on. If not, why not ? What principle is Ginsburg using here to determine what foreign law she would cite or respect and not others ?
What modern American liberals would really like is an unwritten Consitution so they can dispense entirely with the concept of restrictions on government power whenever that would be politically expedient.
Posted by: mark safranski | Wednesday, March 22, 2006
Mark,
A grand strategist would say that laws should be interpreted as dictated by the grand ideal - but I doubt we have nay such strategists on the courts. Instead, we have the 60 Minutes of jurisprudence, a regular cast of characters that are beginning their staggered retirements.
You're dead right on the liberal instrumentalist use of the courts. Further damage will come from the right, who the liberals have trained to view the Law as an instrument. [1] [2]
Wars, military or judicial, are easier to start than stop. And easier to escalate than pacify.
Really, this all goes back to Earl Warren, perhaps the most disastrous Chief Justice, for all concerned, in history.
[1] http://tdaxp.blogspirit.com/archive/2005/06/09/republicans_waterfall_judicial_subversion.html
[2] http://tdaxp.blogspirit.com/archive/2005/04/27/the_final_days_of_the_third_stage_of_the_4gp_against_liberal.html
Posted by: Dan tdaxp | Wednesday, March 22, 2006