Let Me Show You Why Roberts’ Confirmation Is Important
Thomas shot this over to me earlier today. I read it, and could not believe what I was reading. The New Yorker did an article on Justice Anthony Kennedy. Justice Kennedy was believed to be a serious conservative for the high court, but once on the court, his ideologies shifted. The New Yorker makes no mistake in pointing that out. But what they further point out in the piece is that Justice Kennedy, like Justices Breyer and Ginsburg, prefers to rely on more foreign law to determine cases brought before the court.
As Kennedy explained the structure of the U.S. Constitution to his class, he hinted at his own approach to interpreting the document. "Here you are in Europe," he said to his American students. "And you might think, Gee, look at this culture, look at these churches, look how old everything is. But you have the oldest constitution in the world. We have a legal identity, and our self-definition as a nation is bound up with the Constitution." But the document itself was not the only constitution Kennedy had in mind. "There is also the constitution with a small ‘c,’ the sum total of customs and mores of the community," he said. "The closer the big ‘C’ and the small ‘c,’ the better off you are as a society."
Unbeknownst to most of the students, Kennedy was making an oblique reference to one of the most contentious issues in constitutional law. A little more than a year after he joined the Supreme Court, he made a fateful choice about the meaning of the phrase "due process of law." In a 1989 case about parental rights, Michael H. v. Gerald D., the majority opinion, written by Scalia, asserted, in effect, that the due-process clause protected only what the Framers of the Constitution intended it to protect, and nothing more. If the Framers did not regard, say, the right to have an abortion, or the right to engage in homosexual sodomy, as worthy of protection (as surely they did not), then the Supreme Court should not do so, either. Kennedy disagreed with Scalia’s "imposition of a single mode of historical analysis," joining an opinion by O’Connor that endorsed a more flexible notion of due process. That brief opinion has turned out to be a reliable guide to Kennedy’s jurisprudence. On the bench, his view has been that the Court is obligated to consider the evolving standards of society—the constitution with a small "c"—in addition to the words of the Constitution, which are what matter to Scalia.
The law is what we all deal with on a daily basis. Thomas and I live it almost every day. The highest law in the land is the Constitution of the United States. No law is above it. No foreign law should be considered when a matter of what is and is not Constitutional comes before the court. Justice Scalia put it pointedly when, in writing the dissent in Lawrence and in Roper, which was joined by Chief Justice Rehnquist and Justice Thomas.
"The basic premise of the Court’s argument—that American law should comport to the laws of the rest of the world—ought to be rejected out of hand. What these foreign sources ‘affirm’ is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America."
We do not abide by foreign law in this nation. The New Yorker makes an excellent play in stating that we have in the past earlier in it’s article, and is cited below.
The United States Supreme Court has made references to foreign law since the earliest days of the Republic. During the tenure of Chief Justice John Marshall, the Court was often called on to interpret treaties and weigh controversies involving ships on the high seas, and the Justices frequently cited the laws of other nations in their decisions. In 1829, for example, Marshall analyzed both Spanish and French law to settle a claim by an American who had bought a parcel of land once owned by Spain and later included in the Louisiana Purchase. Contemporary commercial disputes also cross borders, and the Justices rely on foreign and international law, as well as on American statutes, to adjudicate them. In the past two years, the Court has considered such questions as whether Mexican trucks must abide by American safety rules under nafta, whether the American family of a Holocaust victim could recover art seized by the Nazis in Austria, and whether a United States district court should compel the American computer-chip-makers AMD and Intel to provide documents to each other in a European antitrust dispute. "When it comes to interpreting treaties or settling international business disputes, the Court has always looked to the laws of other countries, and the practice has not been particularly controversial," says Norman Dorsen, a professor at New York University Law School.
These are fine examples, but they had mitigating circumstances behind them. They dealt with land or property, laws of the sea, and dealing with treaties. That is not the same as determining the jurisprudence of a case involving the freedom of speech, or whether someone’s Fourth Amendment rights prohibiting illegal search and seizure, have been violated. Mr. Dorsen is correct that the sort of practice cited above is not controversial. It is not. Many a law professor, legal scholar, or legal experts will agree to that.
However, that is where the consensus ends, and the debate begins. Though it is evident in Supreme Court justices ranging from Ginsburg to Breyer that they desire to use foreign law, and have indeed used it in their decisions and written opinions, this should be quashed. This is the United States of America. This is not France. It is not Great Britain. We are not Cuba, China, or Iraq. Regardless of what the world thinks, we have our own, sovereign laws, and judicial activists such as Breyer and Kennedy have no right citing the world’s laws, and injecting them into our society.
And this is where Judge John Roberts (Soon to be Chief Justice John Roberts, as the Left cannot stop him) comes in. Aside from the stance on stare decisis, Roberts stood firmly—yesterday and Wednesday in his testimony—on the simple fact that judges should not use international or foreign law in their decisions when it comes to questions raised about the Constitutionality of an issue before the Supreme Court, or for that matter, any court.
To do so would be to inject a law that could—and probably would—be contrary to the Constitution. No small ‘c’ constitution should be cited. Justice Ginsburg has cited UN rules and regulations regarding human rights in her opinions. They do not have merit before the court, nor do they have standing in our society. Certain things we defer to, such as the religious rights of many religions represented in this nation. Islamic woman may be forced to wear a burkha, or a veil, at home, and in public, but the Florida courts ruled that it must be removed for a driver’s license photo. There is no compromise on this subject, and their religious freedom is not being impugned or violated.
But, we do not rely on European law, Sharia law, or any other sort of law except our own. If we wanted to abide by the other laws from other lands, then we have a way to do it through the proper legislative process. That decision should not be determined by an unelected judge. Further, had we wanted to be like them, the Founding Fathers would have never rebelled. We would still be living under British law.
Justices like Kennedy, Breyer, Ginsburg, and even O’Connor believe in foreign law. They have spoken passionately about injecting it into their thinking. Many legal experts and scholars are still arguing whether or not this should be a step for judges and lawyers in determining cases, or setting up arguments. This has to stop before we fall down the slippery slope being created. Hopefully, Judge Roberts can right this sinking ship before we lose the Constitution we hold so high and so dear in this nation.
The Bunny ;)
Thomas shot this over to me earlier today. I read it, and could not believe what I was reading. The New Yorker did an article on Justice Anthony Kennedy. Justice Kennedy was believed to be a serious conservative for the high court, but once on the court, his ideologies shifted. The New Yorker makes no mistake in pointing that out. But what they further point out in the piece is that Justice Kennedy, like Justices Breyer and Ginsburg, prefers to rely on more foreign law to determine cases brought before the court.
As Kennedy explained the structure of the U.S. Constitution to his class, he hinted at his own approach to interpreting the document. "Here you are in Europe," he said to his American students. "And you might think, Gee, look at this culture, look at these churches, look how old everything is. But you have the oldest constitution in the world. We have a legal identity, and our self-definition as a nation is bound up with the Constitution." But the document itself was not the only constitution Kennedy had in mind. "There is also the constitution with a small ‘c,’ the sum total of customs and mores of the community," he said. "The closer the big ‘C’ and the small ‘c,’ the better off you are as a society."
Unbeknownst to most of the students, Kennedy was making an oblique reference to one of the most contentious issues in constitutional law. A little more than a year after he joined the Supreme Court, he made a fateful choice about the meaning of the phrase "due process of law." In a 1989 case about parental rights, Michael H. v. Gerald D., the majority opinion, written by Scalia, asserted, in effect, that the due-process clause protected only what the Framers of the Constitution intended it to protect, and nothing more. If the Framers did not regard, say, the right to have an abortion, or the right to engage in homosexual sodomy, as worthy of protection (as surely they did not), then the Supreme Court should not do so, either. Kennedy disagreed with Scalia’s "imposition of a single mode of historical analysis," joining an opinion by O’Connor that endorsed a more flexible notion of due process. That brief opinion has turned out to be a reliable guide to Kennedy’s jurisprudence. On the bench, his view has been that the Court is obligated to consider the evolving standards of society—the constitution with a small "c"—in addition to the words of the Constitution, which are what matter to Scalia.
The law is what we all deal with on a daily basis. Thomas and I live it almost every day. The highest law in the land is the Constitution of the United States. No law is above it. No foreign law should be considered when a matter of what is and is not Constitutional comes before the court. Justice Scalia put it pointedly when, in writing the dissent in Lawrence and in Roper, which was joined by Chief Justice Rehnquist and Justice Thomas.
"The basic premise of the Court’s argument—that American law should comport to the laws of the rest of the world—ought to be rejected out of hand. What these foreign sources ‘affirm’ is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America."
We do not abide by foreign law in this nation. The New Yorker makes an excellent play in stating that we have in the past earlier in it’s article, and is cited below.
The United States Supreme Court has made references to foreign law since the earliest days of the Republic. During the tenure of Chief Justice John Marshall, the Court was often called on to interpret treaties and weigh controversies involving ships on the high seas, and the Justices frequently cited the laws of other nations in their decisions. In 1829, for example, Marshall analyzed both Spanish and French law to settle a claim by an American who had bought a parcel of land once owned by Spain and later included in the Louisiana Purchase. Contemporary commercial disputes also cross borders, and the Justices rely on foreign and international law, as well as on American statutes, to adjudicate them. In the past two years, the Court has considered such questions as whether Mexican trucks must abide by American safety rules under nafta, whether the American family of a Holocaust victim could recover art seized by the Nazis in Austria, and whether a United States district court should compel the American computer-chip-makers AMD and Intel to provide documents to each other in a European antitrust dispute. "When it comes to interpreting treaties or settling international business disputes, the Court has always looked to the laws of other countries, and the practice has not been particularly controversial," says Norman Dorsen, a professor at New York University Law School.
These are fine examples, but they had mitigating circumstances behind them. They dealt with land or property, laws of the sea, and dealing with treaties. That is not the same as determining the jurisprudence of a case involving the freedom of speech, or whether someone’s Fourth Amendment rights prohibiting illegal search and seizure, have been violated. Mr. Dorsen is correct that the sort of practice cited above is not controversial. It is not. Many a law professor, legal scholar, or legal experts will agree to that.
However, that is where the consensus ends, and the debate begins. Though it is evident in Supreme Court justices ranging from Ginsburg to Breyer that they desire to use foreign law, and have indeed used it in their decisions and written opinions, this should be quashed. This is the United States of America. This is not France. It is not Great Britain. We are not Cuba, China, or Iraq. Regardless of what the world thinks, we have our own, sovereign laws, and judicial activists such as Breyer and Kennedy have no right citing the world’s laws, and injecting them into our society.
And this is where Judge John Roberts (Soon to be Chief Justice John Roberts, as the Left cannot stop him) comes in. Aside from the stance on stare decisis, Roberts stood firmly—yesterday and Wednesday in his testimony—on the simple fact that judges should not use international or foreign law in their decisions when it comes to questions raised about the Constitutionality of an issue before the Supreme Court, or for that matter, any court.
To do so would be to inject a law that could—and probably would—be contrary to the Constitution. No small ‘c’ constitution should be cited. Justice Ginsburg has cited UN rules and regulations regarding human rights in her opinions. They do not have merit before the court, nor do they have standing in our society. Certain things we defer to, such as the religious rights of many religions represented in this nation. Islamic woman may be forced to wear a burkha, or a veil, at home, and in public, but the Florida courts ruled that it must be removed for a driver’s license photo. There is no compromise on this subject, and their religious freedom is not being impugned or violated.
But, we do not rely on European law, Sharia law, or any other sort of law except our own. If we wanted to abide by the other laws from other lands, then we have a way to do it through the proper legislative process. That decision should not be determined by an unelected judge. Further, had we wanted to be like them, the Founding Fathers would have never rebelled. We would still be living under British law.
Justices like Kennedy, Breyer, Ginsburg, and even O’Connor believe in foreign law. They have spoken passionately about injecting it into their thinking. Many legal experts and scholars are still arguing whether or not this should be a step for judges and lawyers in determining cases, or setting up arguments. This has to stop before we fall down the slippery slope being created. Hopefully, Judge Roberts can right this sinking ship before we lose the Constitution we hold so high and so dear in this nation.
The Bunny ;)
posted by Syd And Vaughn | 1:09 PM
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