Justice Ginsburg’s foreign law

The American Constitution Society recently held its first national conference, drawing stridently leftist lawyers and judges together to discuss how they could counter the apparently awesome power of the Federalist Society–a rather modest goal considering that the Federalist Society stands as one of the only alternatives to the left’s domination of every other law-based group out there, like the American Bar Association. Sen. Hillary Clinton spoke, reaffirming her oft-ridiculed notion of a “vast right-wing conspiracy,” while leftist judges like 9th Circuit Judge Stephen Reinhardt decried the current “conservative” state of the law, calling for a return to the Warren era of progressive judicial activism. It was, in other words, a parade of the rich and powerful reminiscing over the time they were, well, richer and more powerful. Times are so tough.

But the most interesting part of the convention was Justice Ruth Bader Ginsburg’s speech. Coming soon after the Supreme Court handed down several contentious opinions on affirmative action and gay rights, Justice Ginsburg had a chance to put these decisions in a little more perspective–and in her view, that perspective is reaching across borders to the law of foreign nations to determine law here in America.

“Our island or lone ranger mentality is beginning to change,” said Justice Ginsburg. Judges “are becoming more open to comparative and international law perspectives.” The implication of this is that judges, should they not like the body of American law and opinion, should feel free to see what other countries do and think. “Your perspective on constitutional law should encompass the world,” she told assembled convention. “We are the losers if we do not both share our experiences with and learn from others.”

Recent Supreme Court cases hint to this kind of jurisprudence. In Lawrence v. Texas, the case that struck down a Texas statute banning homosexual sodomy, Justice Kennedy cited two decisions by the European Court of Human Rights that upheld a right to such acts. Justice Ginsburg’s concurrence in Grutter v. Bollinger, the case that upheld nebulous affirmative action programs, cited an international treaty to support the Court’s long-standing determination that race-conscious programs “must have a logical end point.” And the Court’s opinion in Atkins v. Virginia, a 2002 case that struck down the execution of the mentally retarded, cited to an Amicus Curiae brief from the European Union for the determination that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” Are these recent cases evidence that foreign law is becoming American law?

In my reading, not really. The Atkins citation was buried deep in a footnote as an afterthought. Justice Ginsburg’s concurrence in Grutter was hopeful but not controlling. And Justice Kennedy’s examination in Lawrence was merely a response to then-Chief Justice Burger’s sweeping claim that “homosexual contact ha[s] been subject to state intervention throughout the history of Western Civilization,” which turned out to be of dubious veracity. However, that Justice Ginsburg would explicitly appeal to international law as a guide for American judges means that, if she can help it, international law will become more prominent in American law. And this is not a good thing.

For one, America was created under the very premise that the laws of a foreign nation were not suitable, and indeed oppressive, to us. That it may have been common practice in the 18th Century for European nations to house their soldiers in the homes of citizens is part of the reason why America threw off that yoke and added the Third Amendment, expressly prohibiting such an act, to its Constitution. Our Second Amendment was a response to the typical refusal of European governments to allow the common citizenry to arm themselves. No, we did not throw out the whole of common law and other facets of English jurisprudence, but we explicitly drew our own laws as suited for our own benefit.

This same idea is inherent even among the different laws of our various states. While our federal courts might look to aggregate state action to determine what a uniform policy should be, individual states have their own differences in law and policy from that of other states, and proudly so. States may engage in experimentation that, if successful, other states might emulate (like the Cleveland and Minneapolis voucher programs), but that is wholly a legislative choice, not a judicial one.

And any foray into international law would be guided more by the judge’s own opinion than anything else. Justice Ginsburg may be perfectly happy looking to the more progressive judiciaries of Europe for support, but what about Asian, African, or Middle Eastern nations? Or how about the International Criminal Court, where there are no due process prohibitions against double jeopardy and no right to a speedy trial by a jury of your peers? Courts in most other nations do not protect defendants like our courts do, and I doubt that Justice Ginsburg would argue that our defendants deserve fewer rights as a result–or at least I hope not. The implication is that Justice Ginsburg would only favor international law that backs her own view of what American law should be, serving as yet another flimsy cover for what is otherwise arbitrary judge-made law.

Justice Ginsburg is right that there is much we can learn from the experiences of other nations. There certainly may be laws and policies at use in other countries that we would do well to implement here–I would suggest Chile’s pension system, for one. But that is a determination properly left to Congress and the President to decide based on the will of the people, and not for judges to pick and choose for us. So far our Supreme Court has mostly resisted Justice Ginsburg’s dangerous lead, but if the American Constitution Society has its way, perhaps future law students will worry more about European law than America’s.

James N. Markels is a law student at George Mason University.