There has been a lot of talk recently about international law and custom seeping into American constitutional law. Alarmingly, this dangerous idea hasn't just come from pointy-headed academics but from our United States Supreme Court justices.
The Atlanta Journal-Constitution reports that Justice Sandra Day O'Connor, in a speech to the Southern Center for International Studies, said that American courts should pay more attention to international court decisions when deciding their own cases.
Perhaps because she wasn't speaking to a group of lawyers or students of the Constitution, O'Connor placed an undue emphasis on matters having nothing to do with her proper role as a judge. But that's no excuse. She said what she said, and to lovers of liberty and the Constitution, her remarks should be exceedingly disturbing.
She said that in recent years, the United States Supreme Court has broken from its practice of "declin(ing) to consider international law when reaching important decisions," and is now "acknowledging the thoughts of the global community." This, from a Republican-appointed Justice? There's more.
Relying on foreign court decisions "may not only enrich our own country's decisions, I think it may create that all-important good impression," said O'Connor, as if addressing diplomats at the United Nations. Of course it is true that the impressions we create in this world are important, but "creating good impressions" is not the function of the Court -- interpreting the Constitution is. But her statement is no surprise.
Many Supreme Court decisions purporting to interpret the Constitution do anything but that. In many cases, the justices merely substitute their opinions -- based on whatever suits them at the time, including international law -- for the plain meaning of the language or the Framers' original intent.
Indeed, O'Connor said, "I suspect that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues."
Sadly, Justice O'Connor is not alone. Justice Ruth Bader Ginsberg is similarly unapologetic about the Court's increasing resort to foreign authority. She acknowledged "the growing effect of international law" on the Court's decisions, especially in death penalty, race admissions and gay sex cases.
"Our island or lone ranger mentality is beginning to change," she said. Justices "are becoming more open to comparative and international law perspectives."