This must stop. Only Americans can decide the meaning of American laws. We passed them. We’ll decide how to enforce them. .
The use of foreign law in U.S. courts has other dangers. American judges are not trained in foreign legal systems, some of which are founded on different assumptions and values. Furthermore, liberal jurists cherry-pick, citing the foreign laws they agree with. Don’t expect Justice Breyer to be referring admiringly to Mexico’s taxation of remittances from illegal aliens north of the border.
Luckily, someone in a position to influence policy understands the need to keep our laws to ourselves. Nicholas Quinn Rosenkranz is a professor at Georgetown University, and he has proposed a constitutional amendment that would forbid the courts from using foreign law to interpret or change the U.S. Constitution.
Professor Rosenkranz’s draft Twenty-Eighth Amendment is simple yet powerful: “This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations.”
In a scholarly but readable essay dubbed a “thought experiment” – you can download it for free from here after registering -- Professor Rosenkranz underlines a need to limit the discretion of judges. In their misguided internationalism, Justices Breyer and Kennedy are, he says, “declaring nothing less than the power of foreign governments to change the meaning of the United States Constitution.” A foreign government could even change its laws in the hope of changing U.S. laws.
In response, Justice Antonin Scalia said it best. “More fundamentally,” he wrote in a dissent to the juvenile death penalty case, “the basic premise of the Court’s argument – that American law should conform to the laws of the rest of the world – ought to be rejected out of hand.”
A constitutional amendment would do the job quite well.
Kevin James began his professional career in 1988 as a lawyer with one of Los Angeles' largest law firms. Soon thereafter, Kevin spent more than 3 years as an Assistant U.S. Attorney in LA, and then more than 10 years as a litigator in high profile entertainment matters.
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