A Decent Respect for the Opinions of [Human]kind

Supreme Court Archives ^ | 2/7/06 | Ruth Bader Ginsburg

[bondjamesbond]

Ginsburg is honest to this degree: she and her fellow liberals don't consider all international and foreign laws binding and authoritative. Just those pieces and parts they cherry pick to suit their taste.

Exactly. How can you pick the South African feel-goodism about race relations but ignore the latest Zimbabwean thinking on the rights of private property?

Of course, we must not discount the possibility that Gisburg thinks Zimbabwe is on the right track in this regard...

[mrsmith]

"Jay observed, "by taking a place among the nations of the earth, bec[a]me amenable to the laws of nations," the core of what we today call international law. "

A cute lie. The "laws of Nations" is only the laws of how nations act to each other. She knows this, but assumes the common people don't.

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known "... as much as we do we wouldn't have to ignore what they said.
This blatant statement in Lawrence that they were ignoring what they admit they knew to be the meaning of the Constitution is what should have led to the impeachment of four (O'connor didn't buy into it in her concurrance) justices.

[bondjamesbond]

John Jay, one of the authors of The Federalist Papers promoting ratification of the U.S. Constitution, and George Washington's appointee as first Chief Justice of the United States, wrote of the new nation in 1793 much as Justice O'Regan did in 2004 of the new Republic. The United States, Jay observed, "by taking a place among the nations of the earth, bec[a]me amenable to the laws of nations," the core of what we today call international law. Eleven years later, the great Chief Justice John Marshall cautioned: "[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains."

Note that these two citations refer specifically to the relations between nations, much as the 1816 court addressed the deep interests of other nations. Basically John Jay and Justice John Marshall are saying that US laws should be consistent, where possible, with the laws governing the relations between nations.

This is a far cry from the reliance on foreign sources of law which Justice Ginsburg advocates. To cite these narrow constructions dealing specifically with international law as justification for her view is illogical.

She then tries to boostrap herself into a legitimate point by relying on the still-in-diapers Constitution of the Republic of South Africa. She will do this over and over again, I would imagine.

[CatoRenasci]

Indeed. The purpose of the Declaration of Independence was to (1) announce to the world that we renounced our allegience to the British crown, and (2) - which is where the phrase a decent respect for the Opinions o Mankind comes in, to justify our renunciation and assumption of self-government.

If Ruth Bader Ginsburg does not understand that, she is stupid, which is manifestly not true. I can only conclude she is being disingenuous.

[Jeff Head]

Amen...all of this blather is nothing more than the clear indication that she does not honor her oath to the Constitution and her rationalizations for not intending to do so.

[dhuffman@awod.com]

Unfortunately, while the self-esteem of the demos[Greek, not abbreviation] is high, its intelligence is not. For refutation consider that a judge is not to be an advocate. The service would be to inspire conservatism in learning and language, then judge-advocates would be found in the military only, where indeed members have no Rights. The MSM is mere matrix for the cacocracy of the Democrats and Republicans.

[bondjamesbond]

True, there are generations-old and still persistent discordant views on recourse to the "Opinions of Mankind." A mid-19th century U.S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote:

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.

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.

We now get to the first "Fair and Balanced" portion of this speech. Nothing like lobbing the hand grenade of the Dred Scott Decision into a discussion.

But note that the quotation from Judge Taney has nothing to do with the issue at hand. It is merely a statement that the US Supreme Court should rely on the US Constitution. I also note the rather suspicious editing of this quote. When I have more time and energy, I have to go see what Gisburg so thoughfully edited out, in the interests of brevity, of course.

Gisburg also failed to note that the blistering dissents to Dred Scott did not rely on foreign sources of law, but rather on the plain reading and original intent of the United States Constitution.

Gisburg immediately follows with this:

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."

Since she can't get past the obvious truth of Scalia's remark, the best she can do is connect it to the Dred Scott Decision, as if Scalia is advocating the perpetuation of slavery.

Also note how Ginsburg glosses over the Civil War. If anything demonstrates the committment of the United States to freedom and justice, it is the fact that we found it necessary to bathe ourselves in blood to stamp out the evil of slavery. We were doing this while the "civilized" nations of Europe were still content to perpetuate the institution.

[bondjamesbond]

Another trenchant critic, Seventh Circuit U.S. Court of Appeals Judge Richard Posner, commented not long ago: "To cite foreign law as authority is to flirt with the discredited . . . idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience." Judge Posner's view rests, in part, on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do we even understand the language in which laws and judgments, outside the common law realm, are written.

Judge Posner is right, of course, to this extent: Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.

Judge Posner is right on the money, of course. There is no consensus in international courts. In a World where the Dutch are ruling that separate transgender public bathrooms are a civil right and the Iranians are ruling that the application of fingernail polish by women is punishable by death, it is hard to see the common ground.

Note that Ginsburg's discussion of the reliance on foreign law allows that the only possible problem would be the our own deficiencies and the imperfection of our own understanding. She does not allow that some foriegn laws might be wrong, or stupid, or evil. Thus we are too observe the unfortunate woman strung up in the streets of Teheran because she had the temerity to wear open-toed shoes, and tut-tut that we are unable to understand the innate goodness of this particular aspect of The Glorious Mosaic.

[bondjamesbond]

Representative of the perspective I share with four of my current colleagues, Patricia M. Wald, once Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and former Judge on the International Criminal Tribunal for the former Yugoslavia, last year said with characteristic wisdom: "It's hard for me to see that the use of foreign decisional law is an up-or-down proposition. I see it rather as a pool of potential and useful information and thought that must be mined with caution and restraint."

Now we get to the meat-and-potatoes of this argument...

First, let me point out the snarky comment that four of her Associates agree with her. The remaining four are, of course, morons who probably agree with Dred Scott.

But the notion that foreign decisional law is a "pool of potential and useful information" is absurd. Pools are uniform in content. One has a pool of water (or a pool of gasoline or a pool of poison). But when you throw in everything under the Sun, it isn't a pool of anything in particular. A cess pool, perhaps.

Which gets to the fundamental fallacy. That foreign law can and should be "mined with caution and restraint". This is nothing more than cherry picking the parts you like and discarding the parts you don't.

Let us assume, for the sake of argument, that in Life's Rich Pageant there is some court, somewhere in the World, that is liable to decide on just about anything in any way one could imagine. Thus a judge can rely on some foreign court to justify whatever opinion he might happen to have, as long as he had enough clerks and access to enough material. It is the Million Monkey Theory of Shakespeare applied to jurisprudence.

[bondjamesbond]

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.]

This appears to be a fairly accurate summation of the proposed legislation. The snarky reference to Arlen Specter's infamous "Scottish Law" comment at the time of the Impeachment of President Clinton is completely irrelevant, of course. Specter was acting as a Senator, not as a judge. He also bemoaned the fact that he could not rely on foreign sources of law in the performance of his duties, and then voted as his conscience and intellect demanded based on the restrictions placed on him.

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.

Here is point where Judge Gisburg descends from disingenuous to dispicable. To associate the well considered actions of Congress with the chat-room ranting and ravings of the lunatic fringe is reprehensible. And then to go on to imply that Justice O'Connor was forced of the US Supreme Court by such threats is just idiotic.

[cvq3842]

Agreed! Her conduct is ridiculous. Basically, she's insulting all of us, calling any critic an ally of murderers, but we can't criticize her at all.

What disgusting hubris.

[bondjamesbond]

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.

Well, judging from Ginsburg's conduct during the arguments on the Texas Redistricting case, it might be hard to tell!

[bondjamesbond]

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."

What Ginsburg fails to acknowledge is that there are no "common denominators" - so called - governing these relationships. Foreign regimes are not all citing one another and building a common basis of law. Each is doing it's own thing, some of them quite extreme, so how is the "common denominator" going to emerge?

On really basic issues, there could be said to be some consensus, as long as one were willing to be jingoistic enough to sort out the courts of such rogue states as Iran, North Korea, China, The Netherlands and Canada from the mix. But this consensus is almost universally already reflected in US law. There is no need to go rooting around in France for what one can find on one's own doorstep.

In Ginsburg's one historical citation where the US failed to consider international legal opinion, the Dred Scott Decision, there was no body of foreign legal opinion at the time to cite in favor of the abolition of slavery. That consensus did not emerge anywhere until hundreds of thousands of Americans paid the price in blood.

[bondjamesbond]

In testimony prepared for a congressional hearing, Professor Jackson made a point critics of comparative sideglances perhaps overlook: the "negative authority" foreign experience sometimes may have. She referred in this regard to the "Steel Seizure Case" decided by the U.S. Supreme Court in 1952. There, Justice Jackson, in his separate opinion, pointed to features of the Weimar Constitution in Germany that allowed Adolf Hitler to assume dictatorial powers. He contrasted Germany's situation with that of Great Britain, a country in which legislative authorization was required for the exercise of emergency powers. Justice Jackson drew from that comparison support for the conclusion that, without more specific congressional authorization, the U.S. President could not seize private property (in that case, the steel mills) even in aid of a war effort. The U.S. President's wartime authority, you no doubt know, is today a hotly debated issue in U.S. political and legal circles.

The statements: "There is no justification in foreign law for (the proposed action" and "(The proposed action) is justified by foreign law" are not congruent statements. Justice Gisburg should acknowldege that.

In this particular case, Justice Jackson was declining to follow foreign prescedent, and instead suggested that Congress pass authorization, if authorization is to be desired. This citation supports, rather than contradicts, the notion that US law should not be governed by foreign decisions.

One could surmise that by citing the FReepin' NAZIs as a potential souce of law, Justice Jackson was making a not-so-subtle point.

[bondjamesbond]

At the time Justice Jackson cast a comparative sideglance at Weimar Germany, the United States itself was a source of "negative authority." The Attorney General pressed that point in an amicus brief for the United States in Brown v. Board of Education. Urging the Court to put an end to the "separate but equal doctrine," the Attorney General wrote:

The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination . . . raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.

Note that in this particular case, the Attorney General is restricting his appeal to the narrow issue of how racial discrimination effects of relations with other countries, keeping in mind that we were at the time engaged in a Cold War, in which ideas and perception were the chief weapons at hand. In my opinion, the argument is poorly made, but at least he makes it.

Ginsburg, on the other hand, seems concerned with how other countries feel about the United States, and trying to fit in with the oh-so-trendy European crowd.

[bondjamesbond]

A case in point. On December 16, 2004, in a controversy precipitated by the fight against terrorism, the Lords of Appeal (the U.K. counterpart to the U.S. Supreme Court) issued a waypaving decision, one that looks beyond the United Kingdom's borders. The case was brought by aliens held in custody in Belmarsh Prison. A nine-member panel ruled, 8-to-1, that the British government's indefinite detention of foreigners suspected of terrorism, without charging or trying them, is incompatible with the European Convention on Human Rights, incorporated into domestic law by the U. K. Human Rights Act. Lord Bingham's lead opinion draws not only on domestic decisions and decisions of the European Court of Human Rights. It also refers to opinions of the Supreme Court of Canada and U.S. Court of Appeals opinions (although not U.S. Supreme Court opinions). Finding the differential treatment of nationals and non-nationals impermissible under the Human Rights Act, Lord Bingham also referred to several U. N. instruments, commencing with the 1948 Universal Declaration of Human Rights and including the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.

Lord Bingham did make the observation, gently, that contemporary "U.S. authority does not provide evidence of general international practice." That comment may have figured in the New York Times' characterization of the Lords' ruling as "a strong example of the increasing interdependence of domestic and international law, at least outside of the United States." Parliament reacted swiftly to the Lord's decision. In March 2005, it enacted a measure allowing placement of terrorist suspects under a highly restrictive form of house arrest, in lieu of imprisonment, again without charging or trying them.

One year later, in December 2005, the Law Lords resolved another headline case involving the Belmarsh detainees. A seven-member panel ruled unanimously that evidence obtained through torture was inadmissible in British courts to establish criminal liability or eligibility for deportation "irrespective of where, or by whom, or on whose authority the torture was inflicted." Lord Bingham's lead opinion again surveyed U.N. instruments, including the Convention against Torture, as well as judicial decisions from other nations, including the United States, Germany, and Israel. These sources afforded confirmation for his ringing declaration: "The English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention." Some of the Lords' speeches cast a critical eye across the sea. Lord Hoffman ventured that "many people in the United States, heirs to the common law tradition, have felt their country dishonoured by the use of torture outside the jurisdiction.".

Well, it appears from the above that the UK has incorporated the European Convention on Human Rights into domestic law by the U. K. Human Rights Act. Thus the Judge's decisions, citing the European Convention and the underlying UN blather, appears to be consistent. But the United States has done no such thing (to our great good fortune, I might add). What does the US do instead? The following paragraph answers:

Later in December, recognizing the nation's obligations under the Convention against Torture, the U.S. Congress banned cruel, inhuman, and degrading treatment of detainees in U.S. custody. The legislation, however, stops short of explicitly banning evidence elicited by torture from consideration by a military tribunal charged with determining whether a detainee is an enemy combatant.

The US Congress passed a law! Fancy that, something got done by some other mechanism than judicial fiat! Will the wonders never cease!

The US Congress, as a legislative body, is free to cite the UN Convention Against Torture, The Code of Hammurabi, or the Martha's Vinyard Tide Tables if they want to. They are a legislative body, and thus have a much wider purview.

[lepton]

If U.S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the U. K. - now engaged in measuring ordinary laws and executive actions against charters securing basic rights.

That's basically true...as far as the Congress passing laws or Amending the Constitution goes. Not for the Judiciary to use as an excuse for ignoring the Constitution.

[bondjamesbond]

The notion that it is improper to look beyond the borders of the United States in grappling with hard questions, as my quotation from Chief Justice Taney suggested, is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U.S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.

And there you have it. After yet another backhanded swipe implying that anybody who disagrees with her must support the Dred Scott decision, Justice Ginsburg states openly that the US Constitution should not have fixed meaning, but should read as "belonging to a global 21st century".

Well, here's a stumper, Justice Ginsburg. Suppose, for the sake of argument, the governments of India, China, and Indonesia, along with assorted African and Middle Eatern governments, decide that citizens should have a right to trial by jury. The vast majority of the people on the planet would then live under systems of justice that are directly contradicted by the US Constitution. How should we read the US Constitution as belonging to that particular global 21st century reality?

A key 1958 plurality opinion, Trop v. Dulles, makes just that point. At issue in that case, whether stripping a wartime deserter of citizenship violated the Eighth Amendment's ban on "cruel and unusual punishments." "The basic concept underlying the . . . Amendment," the opinion observed, "is nothing less than the dignity of man." Therefore the Constitution's text "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." In that regard, the plurality reported: "The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime."

The evolving standards of decency argument is the one area where the foreign sources may have some validity. However, I would point out that the standards of the United States should bear precedence, unless the matter has a direct effect on international relations. Anyway, we are not so far out of step with the World that our evolving standard of decency are so very different. That is, unless you want to count the standards of decency that the vast majority of people on the Planet currently live under. If you want to count the evolving standards of decency of the trendy European elites, were right on the same page.

[cvq3842]

Now that was funny!!!!!

[bondjamesbond]

That's basically true...as far as the Congress passing laws or Amending the Constitution goes. Not for the Judiciary to use as an excuse for ignoring the Constitution.

Exactly. The legislative process and and should address all arguments in the process of crafting legislation. If 90% of the arguments are stupid, the 10% will prevail. If Congress fails in the task, they answer to the voters. That is how the system works.

The judicial process, however, needs to be bound by the law.