Insidious judicial activism through foreign laws

Posted: Nov 07, 2003 12:00 AM

 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."

 Nothing in the Constitution suggests that the Court has any authority whatsoever to rely on the decisions of international courts in rendering its own decisions. If the highest court in the land can just fabricate bases upon which to decide cases, our entire legal system, the structural framework for our Republic, is in grave jeopardy.

 How is it that such justices do not understand that when they rely on extra-constitutional authority, they are arrogating to themselves power not granted to them in the Constitution, but more importantly, divesting the American people of their sovereignty?

 If the American people want to adopt the laws and customs of other nations through their duly elected representatives -- even though our ancestors fought a revolution and subsequent wars for the right to establish our own criteria for governing ourselves -- they are free to do so. But the unelected judiciary has less than no business doing so. It ought to be ashamed for doing it and even more so for its unbridled arrogance.

 Beyond the obvious damage this "international" mentality is inflicting on our jurisprudence, our Constitution and our liberties themselves, we should also be concerned with the larger cultural trend toward adopting the mores of other countries and rejecting those traditional values upon which our nation was built.

 We are seeing the fruits of a radical secularism in our culture -- the kind that dismisses Western Civilization and the unique American culture through the euphemistic disguise of multiculturalism. Liberal politicians are increasingly disrespecting American sovereignty and urging through another misleading euphemism "multilateralism" that we allow other nations, essentially, to conduct our foreign policy without regard to our strategic national interests. And now we are witnessing this disturbing development with the Courts.

 If I were prone to conspiracy theories, I'd say there was a global conspiracy going on here. But conspiracy or not, the lines have been drawn between those in our society who want to preserve the system that produced the freest and most prosperous nation in the history of the world and those who act as though they are ashamed of that remarkable record. No one can afford to be neutral on these issues.