SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Wednesday, April 27, 2005

ALIEN JURISPRUDENCE (or Roper vs. Simmons Sucks, Part III) At The Remedy, Ken Masugi links to and discusses the recent NRO article by EPPC's Edward Whalen "Alien Justice: Ruth Bader Ginsburg vs. the Declaration of Independence."

A growing concern has been the outsourcing of constitutional authority to foreign tribunals--this done by members of our own U.S. Supreme Court. This happened most recently in Roper vs. Simmons, a recent death penalty case that I also discuss here and here.

The members of our own high court have taken an oath to uphold and defend our own constitution. But invoking foreign popular opinion to influence the outcome of important court decisions runs counter to our own Declaration of Independence, as Whalen discusses.

Let me be clear: it is not wrong to cite treaties made with foreign countries or to cite foreign court decisions, per se. (Looking to foreign documents in order to ascertain the original understanding of an ambiguous provision in our constitution or in federal law in adjudicating a case, for instance.) But it is highly problematic for a judicial officer charged with expounding our constitution and federal laws to rely on them as a mere source of popular world opinion that our courts should base their opinions upon.

Its difficult to figure out just HOW authoritative Justice Ginsburg considers foreign court decisions. As Whalen notes:

[Justice Ginsburg] emphasizes that she does not regard foreign decisions as "controlling authorities." Could those foreign decisions be the tipping factor in a particular case? Ginsburg doesn't expressly say so, but she gives no reason why that couldn't happen. Nor does she offer any principle to determine what weight they should have. In short, she has no response to Scalia's criticism: "To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."


Masugi has some tough words in this regard, describing Justice Ginsburg's statements as "throwaway lines" and "smoke intended to cover up her agenda."

I think it likely that many international law professors WANT the Supremes to look to foreign court decisions and foreign opinion as CONTROLLING AUTHORITIES. But the American people won't accept that. Such elitists may hope to bring the American people along slowly to such a situation. But to do so they'll have to get around the Declaration of Independence and a constitution whose authority is derived from "We the People, of the United States..."

(Downtown Seattle, WA)

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