Skip to comments.The Ginsburg Doctrine (SCOTUS influenced by foreign jurisprudence)
Posted on 08/10/2003 11:10:38 AM PDT by quidnunc
The biggest story from last week was a speech that didnt even make the back pages of most newspapers. In an address before a liberal organization called (hopefully facetiously) the American Constitution Society, Supreme Court Justice Ruth Bader Ginsburg, noting the value of foreign jurisprudence in shaping the courts rulings, argued that it was acceptable to be influenced in decisions by international law and the provisions of the constitutions of other countries.
As she so earnestly put it, in reference to the apparently outmoded idea that American judges should apply American law and American law only to the cases before them, "Our island or Lone Ranger mentality is beginning to change" as justices become "more open to comparative and international law perspectives." The mind reels from such assertions, and from efforts to grapple with the mindset that produced them.
Conservatives have long accused liberal jurists like Ginsburg of distorting the Constitution in order to legislate in a liberal direction from the bench. Up to now, liberals have resisted such charges, always claiming to be equally rigorous in interpreting constitutional provisions, albeit with perhaps a bit more flexibility thrown in to reflect what they consider to be contemporary social needs and changing societal values (the "living document" approach).
But what Ginsburg has done is let the cat all the way out of the bag, essentially endorsing the idea that it is acceptable to shape Supreme Court opinions using sources that have no relationship whatsoever to established American law or American legal precedent. She also has opened up a vast new vista of possibilities for liberal constitutional mischief by positing the subordination of the U.S. Constitution to foreign legal authorities.
The liberal legal motto used to be "If the Constitution doesnt say what you want it to, then find some way to pretend that it does." The new, Ginsburg-modified motto is, apparently, "If you cant distort the Constitution to make it say what you want, then use the one from Djibouti or Madagascar instead."
One can only speculate as to where Ginsburg and her like-minded colleagues will discover their next set of politically expedient legal arguments. The 1978 Brezhnev Constitution of the now-defunct Soviet Union? The governmental documents undergirding Communist Party rule in the Peoples Republic of China?
Indeed, why not take the Ginsburg doctrine all the way to its logical conclusion and cite the collected works of L. Ron Hubbard, or perhaps a little something from "Zen and the Art of Motorcycle Maintenance"?
International law is an occasionally useful mechanism with which to regulate the often difficult relations between sovereign nation-states. Americans can undoubtedly benefit by studying other political systems and their laws and constitutions. Such study might even reveal that some countries have more enlightened laws and public policies in some areas than we do.
But such observations are entirely beside the point when it comes to American constitutional law and Supreme Court rulings that are supposedly based on it.
Ginsburg did not swear to uphold the laws of France or Germany. She swore to uphold the laws of the United States, as determined by the American people and their representatives and expressed most significantly by the U.S. Constitution.
If her approach is embraced, we will have moved from the already considerable ambiguities of "penumbras, formed by emanations" to a legal world in which there are no boundaries or clearly defined bases of any kind from which to issue rulings on our highest court. The indispensable constitutional function of constraining power will have given way to the unconstrained power of judges operating on the basis of personal prejudice, reinforced for appearances sake by references to Article 7, Paragraph 3 of the Burmese Penal Code.
The liberal tendency to see law as fungible in meaning always carried with it the possibility of rendering law itself meaningless. Under the Ginsburg doctrine, the idea of the Constitution as the highest law of the land is effectively replaced by the idea of a land ruled by well, whatever, from wherever.
I imagine even the Newport Sound Yacht Club Rules Committee doesn't bend to foreign legal opinion.
With this kind of vague racist prejudiced theoretical language, opposing one world against a new world where good and evil somehow do not exist, you have patent communist liberal excuse making for inserting foreign and terrorist thug "laws" into our system.
The new, Ginsburg-modified motto is, apparently, "If you cant distort the Constitution to make it say what you want, then use the one from Djibouti or Madagascar instead."
Our Republic is in great peril.
I tend to agree.
How indeed, especially when many of those rules and customs are diametrically opposed to provisions in the U.S. Constitution.
After having sworn to uphold the Constitutionl of the USA, they should be impeached when they wander from it.
No wonder they want our guns, the liberal swine.
Nice line, no?
I was almost convinced that the author's name was a pseudonym because, stylistically, it reminds of me our very own Torie.
Oh really? Such as the Madagascar policy that allows the use of poodles as public transportation?
Although, these days, anything beats flying.
LAUNCELOT: We were in the nick of time, you were in great peril.
GALAHAD: I don't think I was.
LAUNCELOT: Yes you were, you were in terrible peril.
GALAHAD: Look, let me go back in there and face the peril.
LAUNCELOT: No, it's too perilous.
GALAHAD: Look, A man's got to get as much peril as he can.
LAUNCELOT: No, we've got to find the Holy Grail. Come on!
GALAHAD: Well, let me have just a little bit of peril?
LAUNCELOT: No, it's unhealthy.
GALAHAD: I bet you're gay.
LAUNCELOT: No, I'm not.
Response: Considering the source, why am I not suprised?