CONSTITUTIONAL OPINIONS: Foreign Matter

...Unnamed foreign politicians told him privately, "You've got to win this...

...But the justices and the 38 THE AMERICAN SPECTATOR MAY 2004 American legal culture in general, she said, "are becoming more open to comparative and international law perspectives...

...Reliance on foreign jurisprudence is the latest evolution of America's culture of judicial activism in which judges frantically search for rationales to legislate from the bench...

...We must never forget that it is a Constitution for the United States of America that we are expounding," he wrote, citing one of his previous rulings in which he had said that the "views of other nations, however enlightened the Justices of this court may think them to be, cannot be imposed upon Americans through the Constitution...

...Ginsburg dragged into the June 2003 Grutter v. Bollinger decision, a case involving racial preferences in university admissions, international conventions that endorsed affirmative action...

...What was an unthinkable affront to American sovereignty is now almost routine...

...I anticipate, however, that they will speak increasingly in dissent...

...They too would benefit from an internationalist Kerry administration...

...He wrote that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved...

...Far from concealing this practice alien to American history and custom, Supreme Court justices openly acknowledge it, to a degree the American founders would find shocking...

...The American people do not want to live under Zimbabwe justice...

...Our 'island' or 'lone ranger' mentality is beginning to change," she said...

...Breyer has turned to the Privy Council of Jamaica and supreme courts of India and Zimbabwe for "useful" views on death penalty issues...

...Partisans of that view sometimes carry the day in our courts...

...Today, tools are readily at hand to pursue international and comparative law inquiries," she said...

...Constitution compatible with foreign constitutions...

...A growing number of courts outside the United States," he wrote in the 1999 Knight v. Florida case involving a man on death row for 20 years, "have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel...

...She pointed to such rulings as a "milestone" in American jurisprudence...

...You've got to beat this guy...

...He was also impressed by the Solomonic musings of judges in Zimbabwe, who held that death penalty delays exceeding five years were "inordinate" and qualified as "torture or...inhuman or degrading punishment or other such treatment" Antonin Scalia has had to remind his colleagues that the American people do not necessarily want to live under Zimbabwe justice...

...She predicted that the justices who resist this internationalist analysis will become anachronisms...

...Constitution...

...George Neumayr is managing editor of The American Spectator...

...Judges from Denmark to India already enjoy an alarming influence over American jurisprudence...

...hadn't supported it—"sadly, the United States has not yet ratified it," she said to the American Constitution Society—but she threw it into her ruling anyway...

...We see all the time, Justice O'Connor and I, and the others, how the world really—it's trite but it's true—is growing together," he said...

...In March, Republican congressmen introduced the "Reaffirmation of American Independence Resolution" to express "the Sense of Congress that judicial decisions should not be based on any foreign laws, court decisions, or pronouncements of foreign governments unless they are expressly approved by Congress...

...The timing for the resolution was right: the Kerry flap over foreign endorsements had played out about a week earlier...

...She noted with disappointment the infrequent citation of the United Nations declaration of human of rights in Supreme Court decisions...

...Ginsburg told the American Constitution Society that she agreed with the New York Times's assessment that the court had "displayed an attentiveness to legal developments in the rest of the world and to the court's role in keeping the United States in step with them...

...The Court's decision in the Law School case, I observed, 'accords with the international understanding of the office of affirmative action...

...We need a new policy," Kerry said...

...She knew that the U.S...

...Scalia gave his colleagues who were scrambling to prove their view by citing the court of national and international opinion the "Prize for the Court's Most Feeble Effort to fabricate `national consensus...

...If Kerry, a supporter of such judicial freewheeling, wins, the use of foreign jurisprudence and foreign opinions in American courts will likely increase...

...Perhaps Kerry could add to his list of foreign admirers another constituency abroad: foreign judges...

...MAY 2004 THE AMERICAN SPECTATOR 39...

...Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people....And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations...

...She said that the International Convention on the Elimination of All Forms of Racial Discrimination permits the "maintenance of unequal or separate rights for different racial groups...

...In explaining his ruling, Kennedy said that "the right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries...

...Foreign views creeping into American courts has become an obvious enough problem that Congress is addressing the issue...

...Rejecting the majority opinion in Atkins v. Virginia, he wrote that "the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people," are "irrelevant...

...Anthony Kennedy's majority opinion in Lawrence v. Texas last June, which carved out a constitutional opening for same-sex marriage, rested in part on a 1967 vote in the British Parliament in favor of legalizing homosexual acts and a 1981 European GEORGE NEUMAYR Court of Human Rights ruling that those acts are enshrined as rights under the European Convention on Human Rights...

...The Internet affords access to foreign judicial decisions, lawjournals contain all manner of commentary, course materials are well packaged...

...Scalia repeated his warning in Lawrence v. Texas...

...American judges fawningly cite their liberal opinions as justification for their own liberal rulings...

...In the 2002 Atkins v. Virginia case, John Paul Stevens used a European Union brief to buttress his case that the execution of semi-retarded murderers violates the Eighth Amendment of the U.S...

...The same Supreme Court judicial activists who won't turn for guidance in interpreting the U.S...

...Both conventions distinguish between impermissible policies of oppression or exclusion, and permissible policies of inclusion, 'temporary special measures aimed at accelerating de facto equality,'" she said...

...Breyer quoted with approval the Jamaican Privy Council in a case where it found that two prisoners held for 14 years after sentencing was "shocking," an "inhuman act to keep a man facing the agony of execution over a long extended period of time...

...Constitution to the Americans who wrote it will turn to foreign judges for inspiration...

...Sandra Day O'Connor has said that she and her colleagues "will find ourselves looking more frequently to the decisions of other constitutional courts?' Stephen Breyer agrees, and has even gone as far as to imply that the future role of the Supreme Court will be to make the U.S...

...Ginsburg also cited the Convention on the Elimination ofAll Forms of Discrimination Against Women...

...His colleagues, he wrote, were trafficking in "meaningless dicta," discussing "foreign views" that coincide with their liberal personal views on homosexuality while "ignoring, of course, the many countries that have retained criminal prohibitions on sodomy...

...Without irony, Ruth Bader Ginsburg used a speech last August before the American Constitution Society to promote the reading of the American Constitution in the light of non-American opinions, judicial and otherwise...

...Justices identified as today's originalists adhere to the view that comparative perspective, though useful in the framing of our Constitution, is inappropriate to its interpretation," she said...