I think we should start a grass roots movement to get Associate Justice Ruth Bader Ginsburg appointed to the World Court at The Hague. Judging from her remarks made at a conference in South Africa last month, she sure as hell doesn’t belong within 3000 miles of the Supreme Court building:
Supreme Court Justice Ruth Ginsburg gave a speech in South Africa last month, which, for some reason, is just now being publicized. Ginsburg’s speech was titled “A Decent Respect for the Opinions of [Human]kind.” In it, Ginsburg argued explicitly for the relevance of foreign law and court decisions to interpretation of the American Constitution. Ginsburg did not try to hide the partisan nature of this issue; at one point, she referred to “the perspective I share with four of my current colleagues,” and she specifically criticized Justice Antonin Scalia, Judge Richard Posner, and the two bills that were introduced in Congress in 2004 and were broadly supported by Republicans. And she indulged in an outrageous bit of demagoguery, suggesting that those who disagree with her are somehow aligned with Justice Taney’s infamous defense of slavery in the Dred Scott case.Ginsburg contrasted our Constitution (unfavorably, I think it’s fair to say) with the Constitution of South Africa, which specifically provides for the use of foreign law in interpreting its provisions.
You really should read the entire speech, but its argument is most concisely stated here:
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.”
Hinderaker offers a devastating critique of both the implications contained in Ginsburg’s words and the consequences of keeping this simpering internationalist on the court. Even if “foreign law” is not a “controlling authority,” what troubles me most is her notion that we can learn anything from other countries about “relationships between the governors and the governed.”
In America, that relationship is simple, straightforward, and proudly displayed right up front in our constitution, ostensibly so that even idiots like Ginsburg wouldn’t miss it:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
I know it to be rather old fashioned of me, but when our Basic Law says that the document is ordained and established for the United States of America, I believe we should like, you know, take the framers of it at their word.
Call me a fuddy-duddy but I also seem to recall something about those governors she speaks of deriving their legitimacy from the consent of the governed and not the other way around as it is in every other country on planet earth. That would seem to put the kibosh on Ginsburg and her fellow black-robed Gods using any legal principle promulgated in countries (or in any supranational legal body) that take a dim view of the governed having any rights except those defined by the governors.
I like this analogy by Hinderaker:
Take, for example, the issue of homosexual sodomy. The Supreme Court recently ruled, in Lawrence v. Texas, that there is a constitutional right to commit acts of homosexual sodomy. Was this ruling informed by reference to foreign jurisprudence? If not, why not? On Ginsburg’s approach, the justices apparently get to pick and choose when they will look abroad for guidance. And, if foreign guidance had been sought in the Lawrence case, would the justices have looked to the law in Muslim countries where commission of such acts is a capital crime? If not, why not? There is no coherent answer to these questions, and, needless to say, Ginsburg does not offer one. In reality, reference to foreign law is nothing more than an ad hoc tool to be invoked or ignored at will by justices who want to advance a left-wing agenda.I’ve tried to be measured in this critique of Ginsburg’s speech, but the truth is that it is more reprehensible than I have suggested. You really have to read it to appreciate how far removed it is from American laws and traditions, and how demagogic it is in both tone and substance.
What is it about liberals that when they leave the country, they say such outrageous things? Is it simply a matter of pandering to anti-American sentiment that is so widespread among the intelligentsia worldwide? Or is it something more atavistic – perhaps a feeling deep down inside that they really don’t like America very much and wish that we were more like France or Holland or, as Ginsburg seems to be saying, South Africa?
What I do know is that Ruth Bader Ginsburg should not be deciding cases on our Supreme Court. She, and her fellow Justices who think as she does, must be prevented from allowing foreign law or precedent to influence their decisions in any way. By doing so, they drive a stake through the heart of the concept of American exceptionalism – that we consciously do things differently here because of who we are and what kind of people we see ourselves as.
Readers of this site know how often I bemoan the downgrading by the left of American exceptionalism, the natural rights of man, and the idea that there is a “higher law” that we are all answerable to (including members of the Supreme Court). The essence of these conceits is America. They define our history. They animate our present. They are the meat and potatoes of American society. They are so ingrained into our culture, our political system, and our everyday life that we barely notice them – until Justices like Ginsburg attack them. It is then that we realize how very precious these conceits are and how without them, we lose something so valuable that it diminishes the very idea that is America.
For what else is America but an idea? Our sovereignty is not defined by recognizable borders, or a King, or any standard measure other countries would use. Our sovereignty is bound up in our Constitution which is the purest expression of how we see ourselves. And when the Ginsburgs of the world attack the ideas that define us by saying that we should take cues on how to live from foreign lands, I say enough. It should be the other way around. Foreign governments could learn a hell of a lot about freedom from copying what goes on here and not the other way around.
Paul Mirengoff believes that a case could be made for impeaching Justice Ginsburg (although he also believes it will never happen). Let us hope that President Bush gets at least one more opportunity over the next 2 1/2 years to name at least one more conservative justice to marginalize and diminish the influence of this wicked woman.
UPDATE
Michelle Malkin reminds us that Ginsburg napped through recent oral arguments made at the Supreme Court. Maybe she should be sent to the Hague. I understand the Judges got plenty of rest when trying Milosevic for his unspeakable crimes against humanity.
9:27 am
Ginsburg And Foreign Law In Interpreting Our Constitution
We covered Scalia’s view on the use of foreign law in the Courts. Now, Ruth Bader Ginsburg speaks up.
Powerline reports
Supreme Court Justice Ruth Ginsburg gave a speech in South Africa last month, which, for some reason, is just now being pu…
10:40 am
[...] Others fighting this stupidity: Stop the ACLU JunkYard Blog Rightwing Nuthouse [...]
11:14 am
I’m no lawyer, but I can see the obvious problems and issues raised by looking to foreign courts for guidance. The most obvious issue is – which courts are appropriate for us to look to for guidance?
The only area I can see where the supreme court might legitimately examine foreign courts is in decisions related to treaties and international law.
This isn’t to say I’m any fan of Originalists either. I feel their interpretations are much too narrow and they remind me of Christians to believe that every word of the bible is literal truth and fact.
An example of this is the 13th, 15th and 19th amendments. Are these amendments really necessary today? (Certainly they were necessary at the time they were proposed and ratified) If these amendments were somehow repealed or didn’t exist, does that mean that “strict constructionists” would find laws that promoted slavery and restricted voting by women and non-white races constitutional? I think not. The simple fact is, there must be a certain level of interpretation by the court because the constitution and subsequent amendments are purposly vague in many areas. Interpreting and applying the meaning and intent of the constitution is what the whole judicial branch is for.
11:22 am
Andrew:
Not being a legal expert by any stretch of the imagination, I can only say that I’m pretty sure that the reason we don’t repeal the Amendments you cite is that a body of law has grown up around them that a repeal would affect negatively.
We see this with Roe v. Wade which is why I oppose outright repeal. The fact is, much privacy law today has cited Roe to justify some very necessary protections. I’d hate to “throw the baby out with the bathwater” in such cases.
That said, my argument with Ginsburg and her ilk is pretty much as Hinderaker defined it; using foreign law to seek out invisible Constitutional rights is fraught with danger and inimicable to how we see ourselves as a people.
11:41 am
[...] Related: Right Wing Nuthouse JunkyardBlog [...]
12:49 pm
Ginsberg Out of Hibernation
This “common denominator” is nothing more than an endorsement of humanism as a world religion and an attempt to pass our Supreme Court as a pawn in global government.
12:53 pm
Never heard of Habeus Corpus….thats foriegn…oh yeah repugs don’t like that one either
!
MATT:
The originality and penetrating analysis of your comment takes my breath away.
RM
1:07 pm
You do realize, that in Texas for instance, if an area of law is not settled, we will look to other state laws to see what they are doing to answer that question. Other state laws are not binding on Texas, but are used to guide arguments. You usually can find arguments both ways on an issue from different states.
When the USA was brand new, we looked to English law, French, Spanish, all sorts of areas.
What she suggests isn’t new. In areas of changing law, in a changing world. Why reinvent the wheel every time. We SHOULD look and see what everyone else is doing. If we dont like it, we dont have to do it, but they might have already sorted out the problem. Again, why reinvent the wheel if the logic has already been parsed and you agree with it? Its just guidance, not binding. We do it all the time in law, see how other jurisdictions have handled an issue, and see if its relevant to your own situation.
1:10 pm
Justice Ginsburg: Republicans Are Out to Get Me
The Associated Press reported today that Supreme Court Justice Ruth Bader Ginsburg and former Justice Sandra Day O’Connor were indirectly threatened last year by an internet poster who called for their patriotic killing. This is a serious story, but the
1:42 pm
Scalia vs. Ginsburg
Two stories appear in the news today that highlight more than anything else the differences between the judicial philosophies of Antonin Scalia, the most conservative member of the Supreme Court, and Ruth Bader Ginsburg, the most liberal member o …...
1:54 pm
This is a fundamental issue of sovereignity. “A nation of laws, not men” means our laws, not someone else’s.
There is nothing wrong with understanding how the world interprets law. The issue is in using foreign law as the basis for a ruling. Consider the Holocaust denier sentenced to jail in Europe. Should that be used as a precedent to suppress free speech in the States? And what if a foreign law incorporated into US law is overturned or repealed? Our legal system should not be built on a shaky foundation over which we have no control.
States can look to other States because all laws are interpreted within the common framework of the Constitution. You’ll see this with a particular issue like term limits, where a states law is ruled upon, and other states copy the statute if it is accepted, or modify legislation if the statute is rejected.
There is a pretty clear hierarchy to US Law, starting with Consitutional amendments, down to local ordinances. Laws passed by individual states certainly should supersede foreign law in this hierarchy.
Marty
2:51 pm
And let us keep in mind that the whole issue was brought to a head by the fact that some justices felt that “You shouldn’t execute minors” Glad to see you are all for killing children unless they are still in the womb!
3:55 pm
The Supreme Court and the war on terror are the main reasons I will NOT be voting democrat any time soon. As a matter of fact, it’s why I changed my party affiliation. As much as George Bush has not lived up to conservative doctrine, he has done a good job of appointing justices and protecting this nation. There isn’t anything right now that would make me want to vote for a democrat.
I feel queasy every time I think that I voted for al gore in 2000.
Ms. Ginsburg is everything a Supreme Court justice should not be.
4:16 pm
A few questions come to mind:
1. Are you referring to the International Criminal Court when you say “the World Court”?
2. Do you have any legal training?
3. Have you read the Rome Statute of the International Criminal Court?
4. Do you sincerely believe that Americans can learn nothing from other countries about governance?
4:22 pm
bubbaj must think that getting rid of our freedoms so the terrorists don’t hate us is a winning solution…but then again, everybody but George and his paid lackies agree that the country is less safe than it was pre 9-11.
5:41 pm
... Perhaps an approach more in keeping with Justice Gingburg’s sensibilities would be to judge each according to his own rules and principles. That means we should judge Buzzy Ginzburg according to principles of international jurisprudence as she advocates. Among the oldest, and most established law codes currently in force anywhere in the world today is Muslim Sharia law. ...
6:03 pm
Too bad for RWNH that Ginsgburg does not share the same level of contempt for the rest of the world and not treat it like some vague abstract.
But of course, Hindraker ‘nails it’ by implying “foreign law” would automatically entail “Muslim Law”.
China leads the world in executions -not exactly a hotbed of Islam -but it is a major trading partner with the U.S. Maybe Assrocket may want to tame his rhetorical flourishes.
Yet in this same post theres the cynical mention of the Hague’s handling Milosovec. Okay, maybe this guy should instead be railroaded to the gallows instead of given any trial, right?
Well? Which is it, slick? The lynch mob or the gavel?
By all means, please -please start the rally to impeach Ginsburg. You’ll succeed admirably in removing any remote facade of legitimacy over your ill informed if not idiotic agenda.
9:18 pm
Don’t you just love the way liberals argue?
If you are against foreign law as Supreme Court authority, you are for executing minors, you are a provincial boob, you think all foreign law is sharia or Red Chinese totalitarian law, and you are for railroading all defendants without trial.
Yes, we all know the Constitution is this horrible document that stands in the way of the so-called ‘progressive’ agenda, and that Dutch law is no doubt more amenable to such things as gay marriage, for example.
Some of us happen to like the Constitution and think it is sufficient. Call us crazy, but that’s the way it is.
9:21 pm
To quote the Founders in the Declaration of Independence:
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
DECENT RESPECT TO THE OPINIONS OF MANKIND…hummm
9:27 pm
The Declaration of Independence is not law, Lindata.
10:07 pm
This is just the latest of hundreds of ‘shows of stupidity’ and ‘anti-american actions/remarks’ by the ACLU member of the SCOTUS. She can’t stand to think the the Communist members of congress (and there is several of them there under the banner of the democtatic crazy party) might get one ‘american bash’ ahead of her. What is unblievable is the number of votes she got from the idiots in congress when she was confirmed. Were they for real, or just playing a joke on America.
10:10 pm
Funny how so many of those who want to forbid US judges to look at foreign law are also just those who push reference to the Bible, written in Hebrew, Aramaic and Greek , not the English of Texas and Alabama.
Then of course there is the US legal system itself, built on the English legal structure that goes back to Magna Carta, the first Bill of Rights. And most definitely, not American in origin.
As has been the case all along, the wingnuts are merely opportunists. Anything to stay in power.
jhh
11:27 pm
Long discussion. Thanks.
The central issue to me is does a judge believe in the three branches of government, is he loyal to America and its Constitution, and will he follow these principles rather than imposing his own will.
Those who see the libs as more interested in using foreign law to circumvent the above principles are certainly correct.
1:35 am
Nice strawman Jeffrey Harris, but no one is attempting to ‘forbid’ judges from citing foreign law.
Your second strawman is the idea that anyone is trying to ‘push reference to the Bible’ as you put it – quote for me any single case, anywhere in state, federal or Supreme Court case law where the Bible has been cited as law. I’ll save you the trouble – it doesn’t exist.
Your third strawman is that the objections to citing foreign law includes citations to common law, which is of course the foundation of our system.
When our colonies were founded, common law wasn’t foreign law, now was it. At least common law still comports with our system.
Your final pathetic strawman is that this is some kind of ploy designed to keep ‘wingnuts’ in power.
No, it is a ploy to keep the Constitution true, and to keep liberals from polluting it with nonsense.
9:29 am
Don’t send her to the Hague, send her to the minors! I had great fun with Ruthie over this at my blog.
Enjoy!
3:04 pm
According to Wikipedia, Justice Kennedy shares Ginsburg’s interest in a broader basis of jursiprudence than can be found solely in the U.S. Constitution. Is he a liberal? Besides, the idea that the Supreme Court’s conservatives are coherent in their adherence to their purported Constitutional ideals (i.e. states’ rights) is easily debunked just by looking at its decisions in Bush v. Gore.
3:31 pm
there’s a legitimate argument against using foreign law in american court decisions. but ginsberg is definitely not the most partisan member of the supreme court. scalia regularly appears in front of conservative groups, and has close relationships with many powerful members of the executive branch (see: dick cheney).
my problem is conservatives who have no problem with conservative judicial activism. look at the “special needs” exception to the fourth amendment, developed over the last 20 years by the conservative wing of the court, which has no textual basis at all. a principled strict constructionist would be just as opposed to this doctrine as lawrence v. texas, and would certainly never support as glaring an abrogation of state rights as bush v. gore.
5:59 pm
I belive the core problem that conversatives have with liberals on Supreme Court is that under liberals Americans have too many rights. Where the government gets the power to regulate private consensual sexual activity I’ve never been able to figure out. It’s not in the Constitution at least any section I can find.
This fear of too many rights extends to even accknowdoing the existance of foreign law by the US Constution. Those damn foreigners may have figured that hooking up electrodes to priosners gentials is cruel. The US should just cover its eyes from the awful sight of respect human diginity if that respect was discovered abroard.
There’s one thing I like about the argument though. Apparently, conservatives think it’s fine to impeach Sumpreme Court justices if they have opinions they don’t like. Since Thomas, Roberts and Alito all lied at the confirmation hearings plus spew opinions Democrats don’t like, I’m sure this nuthouse and it’s fellow conversatives won’t complain if a future Democratic Congress impeaches those three.
8:57 am
Your understanding of law & legal precedent is remarkably childlike – surely you will enter the kingdom of heaven! while you’re down here though you might actually think before you start hammering at the keyboard. The Constitution itself looked to many – gasp! – foreign analogues, and our entire legal system (which is a separate matter from the Constitution, mind, not that you’re troubled by niceties) draws on pesky foreign ideas. It wasn’t born whole-cloth, nor did it reach some point of crystallization when it became immune to history, progress, etc. Foreign law and precedent were consulted, freely and duly, throughout the framing of all our laws. That’s because smart people don’t worry too much about whether they’re drawing their ideas from native or foreign resources. They’re more concerned with the actual value-content of the idea.
It’s a concept you might look into!