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Supreme Court internationalists

By Joseph Farah

As if it weren’t bad enough that the U.S. Supreme Court majority pays little heed to the U.S. Constitution, now it is becoming clear five or six members of the court are being influenced by the constitutions and courts of foreign countries.

Ruth Bader Ginsburg blew the court’s cover in a speech to the American Constitution Society, explaining that her colleagues are looking beyond America’s borders for guidance in handling cases on issues like the death penalty and homosexual rights.

In a decision earlier this summer in a Texas case in which anti-sodomy laws were overruled, the justices first referred to the findings of foreign courts. Last year, the court said executing mentally retarded people is unconstitutionally cruel, noting the practice was opposed internationally. Ginsburg cited an international treaty in her vote in June to uphold the use of race in college admissions.

In condescending language undermining the principle of American sovereignty, she said, “our island or lone-ranger mentality is beginning to change.” Justices, she said, “are becoming more open to comparative and international law perspectives.”

Last month, Ginsburg, Justices Sandra Day O’Connor and Stephen Breyer discussed the death penalty and terrorism with French President Jacques Chirac during a European tour that included a conference on the European constitution. France outlawed the death penalty in 1981. Five members of the court attended the conference.

“While you are the American Constitution Society, your perspective on constitutional law should encompass the world,” she told the group of judges, lawyers and students. “We are the losers if we do not both share our experiences with and learn from others.”

Ginsburg also tipped that the Internet is making it easier for the justices to keep up with the decisions of foreign courts.

Back in July, a New York Times story explained that extensive foreign travel has made both Anthony Kennedy and O’Connor “more alert” to how their peers on other constitutional courts see similar issues.

“Justices have always traveled, teaching or taking part in seminars,” the story said. “But these are trips with a difference.”

The story said Ginsburg, Breyer, O’Connor and Kennedy have held extensive sessions with judges in Europe. Kennedy, it said, has met with numerous Chinese judges – both in the United States and in China. O’Connor has been involved in the American Bar Association’s reform initiative in Eastern Europe.

“With emerging democracies groping toward the rule of law, with colleagues on the federal bench volunteering for constitution-writing duties in Iraq, it is not surprising that the justices have begun to see themselves as participants in a worldwide constitutional convention,” the New York Times story said ominously.

“Worldwide constitutional convention?” No thanks.

Justice Antonin Scalia has it just right: In his dissent on the Texas sodomy case, he wrote that the court should not “impose foreign moods, fads or fashions on Americans.”

This is an extremely dangerous trend by these activist judges. Seemingly fresh out of any pretense of constitutional justification for their illogical and misguided decisions, now they are seeking justification in foreign constitutions and from foreign judges and attorneys. Comparing notes with foreigners might be a valid technique for legislators writing laws, but what insight do these folks have into the meaning, interpretation and intent of our own Constitution? What does any of this have to do with the rule of law here in America?

Our founders fought a long and bloody war for independence from Europe and the Old World so that we could govern ourselves in a revolutionary new way. If Ginsburg, O’Connor, Kennedy, Breyer, John Paul Stevens and David Souter are so enamored of the laws in foreign countries, they always have the option of resigning their lifetime appointments and moving themselves to one of those judicial paradises.

Until they make that decision, I would advise them to spend more time talking to Americans and reading the U.S. Constitution.