Justice Antonin Scalia eloquently dissented: "Constitutional entitlements do not spring into existence ... because foreign nations decriminalize conduct." He called Kennedy's words "dangerous dicta," adding that the Supreme Court "should not impose foreign moods, fads or fashions on Americans."
Of course, the Supreme Court should not. But it did. Is the Court now going to use Canada's fad about same-sex marriages to overturn the laws of our 50 states?
Instead of condemning Kennedy's use of foreign courts to change U.S. laws, A.P. Carlton Jr., the president of the American Bar Association, opined, "the concept of fundamental law knows no national boundaries." Sounding off from left field, Harvard professor Laurence Tribe chimed in to "applaud" the "important insights" of the "global legal community."
Ginsburg and Breyer, concurring in Grutter vs. Bollinger, cited a treaty to justify the University of Michigan Law School's affirmative action. They wrote: "The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994 ... endorses special and concrete measures to ensure the adequate development and protection of certain racial groups ... for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms."
When the Senate ratified that treaty under pressure from the Clinton administration, 30 years after President Lyndon Baines Johnson signed it, I wonder if anyone predicted that it would require U.S. schools to impose reverse discrimination based on race.
In Atkins vs. Virginia, Stevens' majority opinion cited an amicus brief from the European Union. The EU warned us, Stevens wrote, that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."
Scalia retorted, "The views of other nations cannot be imposed upon Americans." But five justices did impose foreign views on us.
It is obvious why the Democrats filibuster judicial nominees they suspect of being a strict constructionist. Democrats love an activist judiciary because court decisions can make fundamental changes against the will of U.S. citizens and their elected representatives.
It is also obvious why Democrats like United Nations treaties. Activist judges can use them to circumvent our Constitution and laws - and diminish U.S. sovereignty.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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