Thomas wrote:JustWonders wrote:Perhaps Ruth Bader Ginsburg suggesting that the U.S. judiciary should be influenced by the constitutions and courts of foreign countries?
Can you show me where where Ruth Bader Ginsburg suggested this? I am currently fact-checking a similar allegation that is frequently made about Steven Breyer. My reading isn't finished yet; but so far, that allegation looks like a completely meritless smear against Breyer. This has made me unwilling to accept further allegations of this kind on hearsay. So when you said "Ginsburg suggested that the US judiciary should be influenced by the constitutions and courts of foreign countries": did you have a specific article or opinion by Ginsburg in mind? If you did, I would appreciate a pointer.
I honestly didn't think it was any secret regarding Ginsburg's views on the use of international law as a tool to decide cases before the SCOTUS. Much has been written and it has certainly become a controversy in recent years as several on the Court have made their views known. I think that's why both Roberts and Alito were specifically asked for their views on the merits (or lack thereof) in looking to the courts of foreign nations in attempting to interpret our Constitution.
I've already cited Alito's answer and here's what John Roberts had to say when asked about it in the hearings by Senator Kyl:
Quote:ROBERTS: Well, I don't want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views.
And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn't about interpreting treaties or foreign contracts but as precedent on the meaning of American law.
The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate.
The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.
ROBERTS: If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country.
I think that's a concern that has to be addressed.
The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does.
Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever.
As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there.
And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution.
And I think that's a misuse of precedent, not a correct use of precedent.
http://www.post-gazette.com/pg/05257/571043.stm
The "little debate" he referenced in his answer was a debate between Justice Breyer and Justice Scalia on 1/13/05 at the U.S. Association of Constitutional Law Discussion on the consitutional relevance of foreign court decisions.
(Link)
Much as been written concerning Justice Ginsburg's views on the relevance of international law and
answers.com has this to say as part of their biography of her:
Quote:Dispute over relevance of international law
On March 1, 2005, in the case of Roper v. Simmons, the Supreme Court (in an opinion written by Justice Anthony Kennedy) ruled in a 5-4 decision that the Constitution forbids executing convicts who committed their crimes before turning 18. In addition to the fact that most states now prohibit executions in such cases, the majority opinion reasoned that the United States was increasingly out of step with the world by allowing minors to be executed, saying "the United States now stands alone in a world that has turned its face against the juvenile death penalty."
Justice Antonin Scalia rejected that approach with strident criticism, saying that the justices' personal opinions and the opinions of "like-minded foreigners" should not be given a role in helping interpret the Constitution.
Ginsberg rejected that argument in a speech given about one month after Roper. "Judges in the United States are free to consult all manner of commentary," she said to several hundred lawyers, scholars, and other members of the American Society of International Law.[3] She cited several instances when the logic of foreign courts had helped untangle legal questions domestically, and of legislatures and courts abroad adopting U.S. law in return. Fears about relying too heavily on world opinion "should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey," Ginsburg told the audience.
In response to Roper and other recent decisions, several Republicans in the U.S. House of Representatives introduced a resolution declaring that the "meaning of the Constitution of the United States should not be based on judgments, laws or pronouncements of foreign institutions unless such foreign judgments, laws or pronouncements inform an understanding of the original meaning of the Constitution of the United States." A similar resolution was introduced in the U.S. Senate. In her speech, Ginsburg criticized the resolutions. "Although I doubt the resolutions will pass this Congress, it is disquieting that they have attracted sizable support," she said. "The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification," Ginsburg asserted. "Even more so today, the United States is subject to the scrutiny of a candid world," she said. "What the United States does, for good or for ill, continues to be watched by the international community, in particular by organizations concerned with the advancement of the rule of law and respect for human dignity."
While I believe that Justice Ginsburg will have the support of many here, I tend to agree with the views of Justices Scalia, Roberts and nominee Alito. Comparing notes with foreigners might be a valid technique for legislators writing laws, but should not be used to interpret the intent of our own Constitution and should not be used to influence the rule of law here in America.
