Supreme Court Justice Ruth Bader Ginsburg wasn't dozing off when she appeared recently at a symposium at Ohio State University's School of Law. Credited with writing several feminist precepts into U.S. constitutional law based on the spurious notion that our Constitution is a "living" (i.e., re-interpretable) document, she now wants to expand that process to welcome foreign law.
Taking a gratuitous swipe at her Supreme Court colleagues who have spoken out against citing foreign law (which, as gentlemen, they will graciously pretend they didn't hear), Ginsburg said, "Why shouldn't we look to the wisdom of a judge from abroad?" Any first-year law student should be able to answer that question: because all judges, before donning their black robes, raised their right hands and swore "to support this Constitution."
The Court's four conservatives all oppose citing foreign laws or decisions in rulings on U.S. cases. Chief Justice John G. Roberts Jr. was explicit during his confirmation hearings, explaining that no foreign judge was appointed by or confirmed by anyone accountable to the American people.
Ginsburg even deplored U.S. failure to cite the Canadian Supreme Court. She failed to mention its judicial activism in legalizing same-sex marriage.
Ginsburg claimed that our failure to cite foreign decisions has resulted in diminished influence for the U.S. Supreme Court. Most of us can think of many other reasons why judicial activism is deplored by Americans.
Ginsburg's views may not seem so far out when we are confronted with Barack Obama's appointments. His choice of Harold Koh, former dean of the Yale Law School, to be the State Department's legal adviser may be a harbinger of things to come.
Koh has been quoted by other lawyers as telling a 2007 audience that "in an appropriate case, he didn't see any reason why Sharia law would not be applied to govern a case in the United States." Sharia is the Muslim law that, among other extreme punishments, allows stoning women to death for the "crime" of being raped.
Although much of American law was copied from the British, I wonder if Ruth Bader Ginsburg would agree with Archbishop of Canterbury Rowan Williams when he said that use of Islamic law is now "unavoidable" in Britain. He wants to allow the United Kingdom's large and growing Muslim population to bypass British law in Muslim neighborhoods and use Sharia for marital disputes and inheritance.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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