Rule of (International) Law: Can foreign courts tell American ones how to do their job?

The Wall Street Journal Opinion Journal ^ | February 26, 2005 | Editorial

[quidnunc]

One of the more dangerous fads in Supreme Court jurisprudence of late is something called "international law," in which American laws are measured not just against the Constitution but against the laws of foreign countries. The purpose is to put the U.S. law in what supporters delicately call a "global context." What they really mean is that they can't persuade enough Americans of their views to change U.S. law so they want to persuade judges to do it for them.

Among the most ardent supporters of this view are opponents (here and abroad) of the death penalty, who argue that capital punishment violates international norms. In the juvenile death-penalty case it heard last fall, the Supreme Court took the unusual step of permitting friend-of-the-court briefs from 48 foreign governments and such renowned jurists as Mikhail Gorbachev and the Dalai Lama. (Naturally, they all opposed it.)

Which brings us to Medellin v. Dretke, a death penalty-related case that the Supreme Court will hear next month and which has the potential to catapult the concept of international law to a new level of acceptability in American courts. At issue is whether an order issued by the International Court of Justice at The Hague must be enforced by a court in Texas. That is, the "supreme" court of the United States would reside in the Netherlands, not the District of Columbia.

-snip-

[samtheman]

How do you say this in Latin?

Go take a flying f* at a rolling donut?

[satchmodog9]

Liberal judges are always citing European case law. Our own Supreme Court justices have done it.

[CivilWarguy]

Liberals cite only foreign LIBERAL law, a point made by Justice Scalia in his debate with Breyer. The Liberals adore the UN, or foreign law, not because either has any authority, but only to the extent it reinforces their own left wing political views. For example, in a death penalty case, the Liberal justices would never mention the law of foreign countries that allow for the death penalty, but only those countries, dubbed "enlightened", whose laws agree with them.

[satchmodog9]

So they can go overseas to cite precedence in their attempt to foist their odious, leftist agenda upon the American people.

[CivilWarguy]

The Liberal justices come up with a subtle twist on this: they don't much cite foreign law as legal precedent--not yet, at least. Rather, what they do is state that the meaning of, for example, "cruel and unusual punishment" in the US Constitution can be ascertained by what the "enlightened" world considers "cruel and unusual", which then allows them to bring all sorts of "enlightened", Leftwing French laws in. Justice Breyer, in his debate with Justic Scalia, made this twist--presumably because even they don't yet dare go by French, rather than American, law. How a cherrypicked 2005 foreign definition of "cruel and unusual" is of relevance to an American Constitution written in 1789 is something that Justice Scalia, for one, exposed as absurdity.