Wednesday, February 04, 2004
SHOULD SUPREME COURT JUSTICES BE TAKING POINTERS ON THE DEATH PENALTY FROM JACQUES CHIRAC ?
Apparently Stephen Breyer thinks so. An outstanding article from The Public Interest on the growing tendency of the Federal judiciary to inject customary international law theory -i.e. the political agenda of transnational progressive NGOs, EU bureaucrats and au courant law profs - into cases dealing with principles of Constitutional law. It's an excellent analysis of a worrisome trend gaining traction with liberal intellectuals. A quote from the article:
"Behind these seemingly benign references to international agreements and foreign practice stands a vast and ongoing intellectual project, one which the justices themselves occasionally acknowledge. Justice Breyer, the Court’s most intellectually au courant justice, boldly declared last spring on ABC’s “This Week” that “whether [and how] our Constitution ... fits into the governing documents of other nations” is a “challenge for the next generations.” In a speech before the American Society of International Law, Justice Breyer issued a public call to lawyers and law professors to provide the Court with “relevant comparative material” that would otherwise prove difficult for its justices and clerks to find. In an earlier speech before the same audience, Justice Ginsburg announced that “comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights,” and that “conclusions reached by other countries and by the international community should at times constitute persuasive authority.”
Naturally, as you might assume, the attractiveness of this gambit is not merely in the substantive policy results that might accrue - draconian gun control, abolition of the death penalty, international supervision of American elections to ensure the " correct" result, expansion of the welfare state to European norms - but also in the process that could be established. Essentially, if this tactic of borrowing liberally from foreign and international courts becomes legitimized then anytime a judge felt unduly constrained by a federal statute, precedent or the language of the Constitution the judge could then substitute the reasoning of a proclamation from an undemocratic body on any vaguely cognate matter. It's a remarkably elitist viewpoint and absolutely breathtaking in it's contempt for the principles that undergird the American political system, particularly democratic accountability and the Supremacy clause of the Constitution.
There is a simple answer though it is one I doubt the GOP will dare to call for - the Congress can simply exercise it's constitutional authority to set the jurisdiction of the Federal courts to referring to American case law, statutes and ratified treaties when making rulings. A severe and unprecedented sanction but a corrective that may be required if Americans are to retain any semblance of control over their government and their individual liberties.
¶ 9:50 AM
Apparently Stephen Breyer thinks so. An outstanding article from The Public Interest on the growing tendency of the Federal judiciary to inject customary international law theory -i.e. the political agenda of transnational progressive NGOs, EU bureaucrats and au courant law profs - into cases dealing with principles of Constitutional law. It's an excellent analysis of a worrisome trend gaining traction with liberal intellectuals. A quote from the article:
"Behind these seemingly benign references to international agreements and foreign practice stands a vast and ongoing intellectual project, one which the justices themselves occasionally acknowledge. Justice Breyer, the Court’s most intellectually au courant justice, boldly declared last spring on ABC’s “This Week” that “whether [and how] our Constitution ... fits into the governing documents of other nations” is a “challenge for the next generations.” In a speech before the American Society of International Law, Justice Breyer issued a public call to lawyers and law professors to provide the Court with “relevant comparative material” that would otherwise prove difficult for its justices and clerks to find. In an earlier speech before the same audience, Justice Ginsburg announced that “comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights,” and that “conclusions reached by other countries and by the international community should at times constitute persuasive authority.”
Naturally, as you might assume, the attractiveness of this gambit is not merely in the substantive policy results that might accrue - draconian gun control, abolition of the death penalty, international supervision of American elections to ensure the " correct" result, expansion of the welfare state to European norms - but also in the process that could be established. Essentially, if this tactic of borrowing liberally from foreign and international courts becomes legitimized then anytime a judge felt unduly constrained by a federal statute, precedent or the language of the Constitution the judge could then substitute the reasoning of a proclamation from an undemocratic body on any vaguely cognate matter. It's a remarkably elitist viewpoint and absolutely breathtaking in it's contempt for the principles that undergird the American political system, particularly democratic accountability and the Supremacy clause of the Constitution.
There is a simple answer though it is one I doubt the GOP will dare to call for - the Congress can simply exercise it's constitutional authority to set the jurisdiction of the Federal courts to referring to American case law, statutes and ratified treaties when making rulings. A severe and unprecedented sanction but a corrective that may be required if Americans are to retain any semblance of control over their government and their individual liberties.
¶ 9:50 AM
