Skip to comments.Using Foreign Law Is The Real Supreme Court Test
Posted on 09/16/2005 8:01:41 AM PDT by KevinNuPac
Using Foreign Law Is The Real Supreme Court Test
By Kevin Fobbs
The Supreme Court may not continue to be the supreme court of the land if the judicial philosophy of Justices Anthony Kennedy, Ruth Bader Ginsberg and Stephen Breyer of using foreign law rulings in adjudicating American cases is permitted to become standard practice by the justices.
Even as the confirmation battle rages over the US Senate hearing for D.C. Federal Appeals Court Judge John Robert's bid to become the next chief justice of the U.S. Supreme Court, there is another more pressing battle in our nation's capitol. Unfortunately it is silent and it is operating in a stealth mode within the corridors of the very court Judge Roberts hopes to ascend to. The battle is over the very lifeblood of our nation's legal framework, and the public may never be privy to it...until it is too late.
Most Americans have little understanding of the inner workings of the U.S. Supreme Court. For the most part it is only a building which becomes prominent in our lives when a celebrated decision such as whether or not the next person to take the oath of office is really the one who is legally chosen as was the case on December 12th of 2000. We took notice when the parents of Terri Schiavo fought to prevent the state of Florida from legally allowing a judge to murder their innocent daughter.
But right now out of the sight of most Americans is a quiet movement to allow the legal decision making process of the U.S. Supreme Court to incorporate judicial findings of law from countries like France, Germany, the Netherlands, Aruba or even Jamaica in determining American constitutional questions in cases that come before it. We may want to vacation in Jamaica but I don't think we want to have our cases decided on their legal precedents or Aruba, with their top notch legal sleuthing.
Seems far fetched? Well, maybe not for long.
You see, the Supreme Court of our nation has a small number of justices who feel very strongly that our constitutional Law, our American legal precedents, our American values which help to shape, help to build and construct the very foundation of American jurisprudence...well its just not good enough to use to assist the three justices in coming to an American made constitutional conclusion. Kennedy, Ginsberg and Breyer wish to look for their legal remedies outside our borders.
These three constitutional expert justices have decided that individually and in many ways collectively there should be some sort of global legal test. This is much like the Kerry presidential campaign where the losing presidential candidate invoked at the 11th hour of the campaign a sort of "Global Test" in which if any decision to go to war were to be made by the American president or invoked by Congress, which represents the will of the American public, we have to take a pause before another step were to be made by our government. According to this scenario the "Kerry Doctrine" would be invoked. The proposition of going to war would have to be submitted to some unnamed body of international global testers, who would decide whether or not, based upon their amassed wisdom or amassed level of corruption; .... i.e. see United Nations Oil for Food fund; this esteemed body of honored experts would decide for Americans if it were apropos to go to war to defend our freedom.
You know the result. The president and America won that vote. But the same may not be true for our nation when it comes to the justices on the U.S. Supreme Court. You see this band of men and women are not bound by the constraints of re-election. They are serving for life and unfortunately, are not necessarily bound by the constitutional principles which they swore to uphold.
Some legal experts feel this is really not a very big deal. After all, we are a nation that should realize that the world is shrinking in terms of the level of interactions, the level of commerce and legal boundaries are being broached daily on multi-national levels. What these legal experts believe is repugnant to our Constitution. What is good for Jamaica or France or Aruba or Germany or the Netherlands is not our American experience nor is it reflective of the uniqueness of our heritage and of our culture. In an interview with a news organization, Congressman Tom Feeney of Florida(R) advocated, in a resolution of Congress, the condemnation of this outrageous practice being utilized by some U.S. Supreme Court justices.
His resolution alludes to the point that as a matter of fact it is always and universally inappropriate to base decisions regarding "the original meaning of the U.S. Constitution on foreign laws, institutions or constitutions."
Just imagine if you took the flawed thinking of the three U.S. Supreme Court justices a step further. What happens if a judge in Houston, Texas decided that he wanted to use Korean Law to make a determination of a Texan's property rights? What if a state appeals court judge in Sacramento decided that it is perfectly constitutionally legal to commit infanticide based upon a ruling in a court in the Netherlands.
What happens when a court in Ohio decides that the culture of death should be embraced because a court in Paris, France has decided that a Terri Shiavo case should only be decided on the "quality of life" as determined by the husband or the state or a poll of the people? Some would say these types of legal possibilities are too far fetched. Some may say this is too much like fiction.
About three months ago, millions of Americans probably thought the home that you live in, the place that you worship or the job you work was safe from being taken away, because you were either too poor, too principled or just plain in the way, by someone with deeper pockets who can snatch away everything you have worked a lifetime accumulating ... it happened. Just ask the victims of the U.S. Supreme Court decision in Kelo vs. the City of New London.
We live in times where we have to realize that the gift which is our Constitution can be taken from us. The Fifth Amendment protection has been marginalized. We saw that happen in the "Kelo Case". Just ask the over 10,000 plaintiffs and defendants who are defending their homes, their places of worship or their businesses in over 41 states. They probably thought the same too..."It will never come to this."
Well, it has. As the U.S. Senators are going through their theatrics on Capitol Hill in Judge John Roberts' Judiciary Committee confirmation hearings, let's hope those senators who respect the Constitution understand that the most important question of the entire proceedings is not necessarily how he would decide on another "Roe v Wade" fact pattern.
The most essential and fundamental answer we should want to hear from Judge John Roberts is "I firmly believe that as a matter of course and as a matter of law, the U.S. Supreme Court will only consider in its proceedings and legal determinations the U.S. Constitution, now and forever more. Any use of foreign laws and constitutions to interpret U.S. laws and our Constitution is a blatant violation of our U.S. Constitution...so help me God."
That is the kind of response that the American people deserve and that is the legal position that our first Chief Justice John Marshall would have supported.
His first decision which gave the U.S. Supreme Court its foundation was based upon the notion of what legal determinations govern the Federal courts. In Marburg v. Madison, Chief Justice Marshall evoked the principle of judicial review. He felt that "A legislative act contrary to the Constitution is not law." Judicial review was based upon American jurisprudence, and to do otherwise would again be simply repugnant to the principles of governance that "each branch of government is responsible (to the people) for keeping its own acts within the bounds of constitutionality."
Chief Justice Marshall would have open disdain for any notion of using foreign law and foreign practices in determining American legal disputes. Open disdain for the Constitution is open disdain for the oath of office that the supreme court justices are sworn to uphold.
If this trifecta of justices is allowed to continue to prevail the U.S. Supreme Court will be using a new global test in deciding American cases. If that be the case then perhaps their swearing in should not be held in Washington D.C. but in New York and their oath should be administered by United Nations General Secretary Kofi Anan.
There you have it. A World Court, with a world oath, a global test and French law administered by an Aruban legal expert and appealed to a Saudi Arabian legal system that hands it off to a Cuban arbiter, who outlines it for the U.S. Supreme Court. It is a legal nightmare we cannot afford to wake up to.
Kevin Fobbs is President of National Urban Policy Action Council (NuPac), a non-partisan civic and citizen-action organization that focuses on taking the politics out of policy to secure urban America's future one neighborhood, one city, and one person at a time. View NuPac on the web at www.nupac.info. Kevin Fobbs is a regular contributing columnist to the Detroit News. He is also Outreach Communications Vice Chairman of the Michigan Republican Party and daily host of The Kevin Fobbs Show on News Talk WDTK - 1400 AM in Detroit as well as co-founder of the Jackson, MI-based American Conservative Values Television Network. Listen to The Kevin Fobbs Show online at www.wdtkam.com daily 2-3 p.m., and call in toll-free nationwide to make your opinion count at 800-923-WDTK(9385).
So why can't Roberts come in and say, you WILL state your rulings in accordance to the Constitution or disqualify yourself?
The three judges mention attend law conferences abroad.
Among the left "legal harmonization" is a the new buzz word.
The goal is to make all laws harmonized with each other for the faciliations of one SOCIALIST world government with judges as teh final arbiters of all that is "holy".
And if the Senate and House were populated with a majority of patriots, they'd pass legislation restricting the USSC from using foreign law as the basis for any decision.
If we had bacon, we could have bacon and eggs . . . if we had eggs.
Among the left "legal harmonization" is a the new buzz word.
Sadly, the harmonization is always lower ours not improve their's.
Just tells me that Kennedy, Ginsberg and Breyer haven't the brains or legal expertise to use the US Constitution as solutions to all that comes before the Court. Look at the mess we are becoming, check this mess with foreign countries, and we have the answer. Do we want to become like the foreign countries or shall we get back to returning to our own? Dump liberals. Next thing these three nuts will do is adopt stoning as capital punishment.
I think that not only will Judge Robert's decisions have an impact on the court in and of themselves. His arguments will be so persuasive as to convince the wishy washy justices to side with him.
I'm very far from being an expert on this, but i seem to remember a lawyer telling me once that English legal decisions dating back hundreds of years have been allowed as precidents in US cases, and that a large part of the US legal code is based on British common law.
So this isn't really hot news, as far as i know.
Our judges should ignore world opinion that is a dangerous path. There should be means of removing judges who refuse to follow their oath of office to uphold the Constitution.
Those lawyers always cite England's Lord Blackstone. What they leave out is that his "precedents" were the significant influence his writings had on the writing of our Constitution before ratification (or as they reveal original intent of the framers). Not as a precedent for rewriting the constitution after ratification or to circumvent the Constitution's Amendment process.
In the last couple of months there was a story in the news from some country where judges who made bad decisions were dragged through the streets until they were dead.
The fact that a prospective justice would need to reassure us on this point means that the point is already lost and cannot be regained. Because once the justice is on the court he is not bound by his promise.
Waste of good rope.