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The Ginsburg Doctrine (SCOTUS influenced by foreign jurisprudence)
The Arkansas Democrat-Gazette ^ | August 10, 2003 | Bradley R. Gitz

Posted on 08/10/2003 11:10:38 AM PDT by quidnunc

The biggest story from last week was a speech that didn’t 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 court’s 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 doesn’t say what you want it to, then find some way to pretend that it does." The new, Ginsburg-modified motto is, apparently, "If you can’t 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 People’s 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.


TOPICS: Culture/Society; Extended News; Foreign Affairs; Government
KEYWORDS: constitution; globalism; lawrencevtexas; liberals; ruthbaderginsburg; scotus; transjudicialism

1 posted on 08/10/2003 11:10:38 AM PDT by quidnunc
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To: quidnunc
Ginsburg's approach to law reminds me of something Thurston Howell once said on "Gilligan's Island" when he felt that the other castaways had wronged him in some decision they made. Threatened the esteemed Mr. Howell, "Why, I'll take this to the Appellate Court; no, I'll take it to the Supreme Court; no, I'll take it all the way to the Newport Sound Yacht Club Rules Committee".

I imagine even the Newport Sound Yacht Club Rules Committee doesn't bend to foreign legal opinion.

2 posted on 08/10/2003 11:27:02 AM PDT by Lawgvr1955 (What is the right amount of clothing to take on a three hour tour???)
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To: quidnunc
Ginsburg, and any other SCOTUS judges that agree with her, should be impeached.
3 posted on 08/10/2003 11:27:26 AM PDT by MichiganConservative (Repeal the welfare state and eliminate the IRC.)
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To: quidnunc
"Our island or Lone Ranger mentality is beginning to change"

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.

4 posted on 08/10/2003 11:42:06 AM PDT by lavaroise
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To: quidnunc
I find RBG's views to be subversive to our Constitution and a threat to our sovereignity. She needs to step down.
5 posted on 08/10/2003 11:47:11 AM PDT by KMAJ2 (Freedom not defended is freedom relinquished, liberty not fought for is liberty lost.)
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To: quidnunc
I find RBG's views to be subversive to our Constitution and a threat to our sovereignty. She needs to step down.
6 posted on 08/10/2003 11:48:36 AM PDT by KMAJ2 (Freedom not defended is freedom relinquished, liberty not fought for is liberty lost.)
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To: KMAJ2
"I find RBG's views to be subversive to our Constitution and a threat to our sovereignty. She needs to step down."

Ditto!

7 posted on 08/10/2003 12:04:13 PM PDT by BenLurkin (Socialism is slavery)
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To: quidnunc
The liberal legal motto used to be "If the Constitution doesn’t say what you want it to, then find some way to pretend that it does."

The new, Ginsburg-modified motto is, apparently, "If you can’t 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.

8 posted on 08/10/2003 12:05:29 PM PDT by BenLurkin (Socialism is slavery)
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To: BenLurkin
Our Republic is in great peril.

I tend to agree.

9 posted on 08/10/2003 12:17:43 PM PDT by squidly
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To: squidly
Usually government officials have more intelligence than to actually state their subversive intent in a speech. The oath that this idiot took when joining the SCOTUS pledged her protection of the Constitution, both foreign and domestic. Evidently the majority of Congress supports her position so nothing is done to impeach her which is within their duties.
10 posted on 08/10/2003 12:40:13 PM PDT by meenie
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To: quidnunc
Our forefaters fought a revolution because of taxation without representation. With Ginsburg the world's fruitakes have representation without taxation. She is more like the supreme poobah then a supreme court justice.
11 posted on 08/10/2003 12:50:24 PM PDT by reed_inthe_wind
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To: quidnunc
How is due process served when an appelate or supreme court introduces arguments and decisions from foreign sources that are based on evidence and facts that may be identified and categorized according to the rules and customs of legal bodies that operate outside our legal system?
12 posted on 08/10/2003 1:17:18 PM PDT by reed_inthe_wind
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To: reed_inthe_wind
Reed_inthe_wind wrote: How is due process served when an appelate or supreme court introduces arguments and decisions from foreign sources that are based on evidence and facts that may be identified and categorized according to the rules and customs of legal bodies that operate outside our legal system?

How indeed, especially when many of those rules and customs are diametrically opposed to provisions in the U.S. Constitution.

13 posted on 08/10/2003 1:27:24 PM PDT by quidnunc (Omnis Gaul delenda est)
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To: MichiganConservative
Ginsburg, and any other SCOTUS judges that agree with her, should be impeached.

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.

14 posted on 08/10/2003 1:30:18 PM PDT by kentuckyusa
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To: quidnunc; Torie; Sabertooth
The new, Ginsburg-modified motto is, apparently, "If you can’t distort the Constitution to make it say what you want, then use the one from Djibouti or Madagascar instead."

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.

15 posted on 08/10/2003 1:35:00 PM PDT by jwalsh07
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To: quidnunc
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.

Oh really? Such as the Madagascar policy that allows the use of poodles as public transportation?

Although, these days, anything beats flying.

16 posted on 08/10/2003 1:38:45 PM PDT by Lazamataz (PROUDLY POSTING WITHOUT READING THE ARTICLE SINCE 1999!)
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To: MichiganConservative
"Ginsburg, and any other SCOTUS judges that agree with her, should be impeached."




Well pilgrim, that'll be a cold day in h*ll.
17 posted on 08/10/2003 1:47:20 PM PDT by philetus (Keep doing what you always do and you'll keep getting what you always get)
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To: BenLurkin
Our Republic is in great peril.

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.

18 posted on 08/10/2003 1:48:06 PM PDT by Lazamataz (PROUDLY POSTING WITHOUT READING THE ARTICLE SINCE 1999!)
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To: quidnunc
Statement: "The Ginsburg Doctrine (SCOTUS influenced by foreign jurisprudence)"

Response: Considering the source, why am I not suprised?

19 posted on 08/10/2003 2:22:49 PM PDT by AEMILIUS PAULUS (Further, the statement assumed)
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To: Lazamataz

20 posted on 08/10/2003 6:22:35 PM PDT by BenLurkin (Socialism is slavery)
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To: Lazamataz
For all that matter, how much peril could ther be in a place like this:
21 posted on 08/10/2003 6:33:12 PM PDT by BenLurkin (Socialism is slavery)
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