Mark Steyn: The Penumbra Lengthens; The Europeanization of the US Constitution

National Review via SteynOnline ^ | November 24, 2003 | Mark Steyn

[quidnunc]

Did you see what Sandra Day O’Connor said the other day? Swingin’ Sandra is the most reliably unreliable vote on the Supreme Court, the fifth vote on all the 5-4 decisions setting the course for this great Republic, the one the lawyers pitch their arguments to, which isn’t as easy as it sounds, given the lack of discernible legal principles governing her erratic pendulum. Clarence Thomas has a sign on the wall of his office: “Please do not emanate into the penumbra.” But over at Sandra’s pad it’s all penumbra: on a bench of opposing ideological quartets, she inclines not to black or white but to an unendingly murky grey. The trick for counsel is figuring, in this Constitutional twilight zone, which particular degree of grey tickles her fancy on any given day.

Even so, it comes as a shock to discover that Sandra’s now swingin’ not between left and right but between the US Constitution and Belgian law. As she told her audience in Atlanta:

“Over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues.” Doing so “may not only enrich our own country's decisions, I think it may create that all important good impression.”

Until recently, US courts declined to consider foreign courts. But, as Justice O’Connor was happy to report, that’s all changed: in “the famous or perhaps infamous case” on Texas sodomy she and her colleagues relied on “a series of decisions by European courts”.

Wow. That penumbra stretches a lot further than it used to. Speaking as a foreigner myself, I’ve always found it one of the more charming features of the American scene that “progressives” are obliged to find justification for their radicalism in a piece of old parchment. In Europe, they can simply say: we need to get with the beat, daddy-o. But in the US the left at least observes the niceties and pretends that the powdered-wig guys had somehow ingeniously anticipated the need for a constitutional right to gay marriage or a partial-birth abortion. Perhaps recognizing that this particular penumbra is pretty well tapped out, Justice O’Connor is now saying that there’s gold in them thar Scandinavian hills.

No prizes for predicting which way the emanations are going to go once they take the foreigners into account. In considering the pros and cons of sodomy in Texas, the Supreme Court did not rely on the large body of Nigerian sharia precedents and Taliban jurisprudence in this area. No, the only countries the Supremes seem to have taken under consideration are those in (as Justice Breyer put it) “the western tradition” — ie, white Europeans.

-snip-

[LiteKeeper]

INTREP - UNELECTED, BLACK-ROBED DICTATORSHIP ALERT

[Ancesthntr]

For another, can you imagine any judge in France, Denmark or New Zealand taking US court decisions into account when deliberating on, say, gun ownership...

Given what the 9th Circus says about gun ownership (now unconstrained by the Supreme Court), I could definitely see the French quoting our court decisions on gun ownership.

[ppaul]

Welcome to the Land of

Penumbra

[jwalburg]

Steyn is always refreshing to read. He always nails it down well. Here's a column on the same topic:

With judicial mainstream, out is safe

Marmorstein says that relying on foreign courts is like "saying an umpire's decision on an infield fly should take into account football's rules on pass interference, or that a soccer referee should call a player off-sides when he crosses the line of scrimmage before the ball is snapped."

What's O'Conner's problem that she can't see there is no place for foreign courts in American law?

[ppaul]

The number of times that American judges have invoked English law is so great that it you could fill a shelf full of volumes with them.

English law.
Not European law.
Get a grip dude.

[mrsmith]

“Please do not emanate into the penumbra.”
Oh, that's good.

Steyn's making an error though:
"she and her colleagues relied on “a series of decisions by European courts”. "

O'CONNOR DID NOT RELY ON, OR EVEN MENTION, ANY FOREIGN LAW IN HER OPINION.

She did not join in the majority opinion that did, nor did she join in their reinterpretation of "liberty".
Of course her staterments in the speech are still outrageous.

[Scenic Sounds]

Good post!

[Rummyfan]

Brubricker.... since December 2nd 2003.

Welcome to Free Republic.

Not good to bash the One-Man Content Provider, Mark Steyn.

[Weimdog]

Steyn hits it out of the park in this paragraph -

Given that this is the court that elevated “Celebrate Diversity” from a bumper sticker to a bedrock constitutional principle, it’s a little bewildering to find that they cheerfully accord the white European a unique monopoly on the judicial consultancy positions. Heartening though it is to know the white man still has his uses, this privileged access is, alas, unwarranted. For one thing, the fact that the US constitution is older than the French, German, Italian, Greek, and Spanish constitutions combined suggests that this member of “the western tradition” is more traditional than others. For another, can you imagine any judge in France, Denmark or New Zealand taking US court decisions into account when deliberating on, say, gun ownership or capital punishment? In this case, the emanations are strictly one way. Given that the wacky new European Constitution has 400 articles enshrining such novel “constitutional” rights as the right to “housing assistance” and the right to have your government take “preventive action to protect the environment”, Justice O’Connor’s remarks amount to more or less formal confirmation that the destination is Scandinavian social democracy, we’re just taking a little longer to get there than our more enlightened cousins. Excessive deference to European modishness can be passed off as many things but not as US constitutional law.

[general_re]

English law.

And it's almost invariably English law from before the Revolution, not since.

[AmishDude]

English Common law as a prececent is a little different from current law made by Parliament.

[AmishDude]

Actually, Steyn did not assert that O'Connor cited the other courts in her opinion issued from the bench but that it influenced her decision -- to which she proudly admitted.

[over3Owithabrain]

Glad you showed up for the first time to defend the further loss of American sovereignty. Sorry, most of us here aren't comfortable with SC justices giving speeches that promise to rely more on world opinion and international law.

Peddle your globalism at DU where it has a nice home.

[BadAndy]

Maybe she didn't in the written opinion, but she made it clear in a speech that members of the court are increasingly using international law when deciding issues related to the US constitution.

[Bernard Marx]

Imperial Judiciary Alert!!!

Thanks for all your great posts.

[Bernard Marx]

Imperial Judiciary Alert!!!

Thanks for all your great posts.