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Supreme Court Now Using Foreign Precedents

Copyright 2003 by David W. Neuendorf

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When the US Supreme Court passes judgment on laws created by Congress or state legislatures, most people assume that the basis of the judgment is the US Constitution. All such decisions are indeed couched in the language of constitutional interpretation, and are reported as "what the Constitution says" in the news.

Unfortunately, the Supreme Court justices are only human, subject to the same temptations as any other humans who have been entrusted with great power: "Power corrupts and absolute power corrupts absolutely." Over the years, activist justices have increasingly given in to the temptation to push the limits of their power beyond the realm of the judicial and into that of the legislative.

The courts have found that restricting themselves to mere reading and interpretation of the Constitution makes this power play very difficult. To break those restrictions, they have long used sources of authority outside the Constitution to justify activist decisions. Everything from opinion polls to "penumbras" (imagined partial shadows cast by the actual words of the laws or the Constitution) have been fodder for revolutionary decisions.

As if these well-known flights of judicial fancy aren't bad enough, several justices have started using the opinions of foreign courts as precedents for judging the constitutionality of our laws. The "Legal Times" commented on the many junkets that justices have been taking to study the European court system: "But the justices' wanderlust has taken on extra significance in light of the Court's newfound interest in invoking the rulings and view of foreign courts and international authorities in its own jurisprudence."

Justice Ruth Bader Ginsburg recently bragged to the leftist American Constitution Society, "Our island or lone ranger mentality is beginning to change." Several justices "are becoming more open to comparative and international law perspectives." American lawyers' and judges' "perspective on constitutional law should encompass the world."

During a visit to Europe in 1998, Justice Sandra O'Connor claimed that "In the next century, we are going to want to draw upon judgments from other jurisdictions. We are going to be more inclined to look at the decisions of [the European] court…and perhaps use them and cite them."

In a recent TV interview, Justice Stephen Breyer commented that "…the world really, it's trite but it's true, is growing together…And how [people are] going to live together across the world will be the challenge and whether our Constitution and how it fits into the governing documents of other nations I think will be a challenge for the next generation." His incoherent style aside, Breyer's words are ominous coming from one who has sworn to uphold the Constitution.

The trend that these justices celebrate has shown itself in several recent high profile cases. In ruling that states may not apply the death penalty when the perpetrator is judged to be mentally retarded, the court's majority opinion cited a brief for the European Union as evidence that Europeans would not approve of the practice.

The ruling against the Texas sodomy law was supported by reference to a decision of the European Court of Human rights, which had invalidated an Irish sodomy law. After describing the European case, the US decision claimed that "There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent" than it is in Europe, as if we had a duty to bow to European standards of personal liberty. I don't think Americans need the aid of Europeans to understand liberty and the means of preserving it.

One of Justice Ginsburg's recent opinions cited a UN document, the "Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination against Women", in support of affirmative action.

The Supreme Court should be deciding its cases based on federal law and the US Constitution. Each justice has sworn an oath to uphold the Constitution. Polluting their decisions with citations of authorities outside of US law is a serious violation of that oath. Americans, especially the House of Representatives, should be looking carefully at the court's opinions to determine whether some impeachments may be in order.