Judging the United States By Foreign Law
by Robert S. Barker - September 4, 2007
Reprinted with permission from our good friends at InsideCatholic.com, the leading online journal of Catholic faith, culture, and politics.
One of the most important controversies in constitutional law today arises out of the increasing tendency of some judges, and particularly justices of the Supreme Court, to use decisions of foreign tribunals as authority for interpreting the United States Constitution.
In judicial opinions, published articles, television interviews, and public speeches, Justices Stephen Breyer and Ruth Bader Ginsburg, along with former Justice Sandra Day O'Connor, have advocated the use of decisions of foreign courts to help U.S. judges ascertain the meaning of our nation's statutes and constitutional guarantees. Ginsburg was perhaps most specific when she asked why judges in the United States should not look to decisions of the supreme courts of Canada, South Africa, Israel, or Germany, or the European Court of Human Rights, in deciding questions of United States constitutional law.
Those justices, and others, have put their arguments into practice. In the 2003 Lawrence v. Texas decision, the United States Supreme Court overruled its own precedent and declared that the constitutional guarantee of due process protects homosexual conduct. Speaking for the Court, Justice Anthony Kennedy cited three decisions of the European Court of Human Rights in support of his conclusion. Two years later, in Roper v. Simmons, the Court held that the execution of individuals who were under 18 years of age when they committed their capital crimes constitutes "cruel and unusual punishment," in violation of the U.S. Constitution. The Court, again speaking through Kennedy, relied heavily on recent legal developments in the United Kingdom, Canada, India, and the European Union.
Cut-and-Paste ConstitutionIt is significant that those justices who today give weight to foreign judicial decisions and other foreign legal developments invariably do so in order to establish that something that was once clearly constitutional (e.g., the prohibition of homosexual sodomy, or the application of the death penalty to a youth who committed premeditated, wanton, and cruel murder) has now become unconstitutional.
Reliance on foreign decisions thus has not been a neutral practice, such as might likely produce "conservative" as well as "liberal" conclusions; rather, it is closely associated with the "living Constitution" school of interpretation, whose adherents argue that the meaning of the U.S. Constitution "changes with the times." In our day, that view is always associated with judicial activism and liberal politics.
The conclusive argument against relying on foreign cases in interpreting our Constitution is, of course, that those cases are simply irrelevant; that is, while they may tell us what some justices would like the U.S. Constitution to mean, they tell us absolutely nothing about what it does mean. But while its irrelevance should be the decisive argument against reliance on foreign decisions, it is not the only argument worth considering. Such practice is necessarily subjective; it leaves each judge free to invoke only those foreign decisions that he or she likes, while ignoring the rest. Nothing demonstrates this judicial arbitrariness more clearly than the failure of the devotees of foreign case law even to mention two of the most important pro-life judicial decisions of our day, rendered in 2000 and 2001, respectively, by the Constitutional Chamber of the Supreme Court of Justice of Costa Rica.
