Zimbabwe should not be making American law.
Neither, for that matter, should France, India, Mexico, Switzerland or any other country. Only America should be making laws for Americans.
Incredibly, not everyone agrees with this principle. Astonishingly, some of the people who do not agree are justices of the U.S. Supreme Court. Fortunately, a solution to the problem is being proposed.
In 2005, the Supreme Court held that the Eighth Amendment – which bans cruel and unusual punishment – prohibits the execution of murderers who committed their crimes before their eighteenth birthdays. As a former federal prosecutor, I disagreed with the ruling. The death penalty is appropriate in a few juvenile murder cases, and I trust juries to make the right decision. But worse than the high court’s result was its reasoning.
Justice Anthony Kennedy, writing for a bare 5-4 majority, supported his decision by citing to the laws of other countries. He illogically referred to a treaty called the United Nations Convention on the Rights of the Child, a treaty the United States has never ratified. Justice Kennedy also mentioned statutes passed in the 1930s and ‘40s by the British Parliament. Funny, I thought one of the perks of the American Revolution was not having to listen to the British Parliament.
Justice Kennedy had been swayed by a growing liberal movement which argues that U.S. laws – including the Constitution itself – should match the laws of other, allegedly more enlightened countries. And, since Congressional Republicans won’t go along with the plan, leftist judges are the designated soldiers in this legal revolution.
One of the true believers is Supreme Court justice Stephen Breyer, who, in his desire to turn our country over to the “international community,” wrote one of the worst opinions I‘ve ever read. In a 1999 decision called Knight v. Florida, the Supreme Court declined to review the appeal of an inmate who argued that he had been on death row so long that the sentence was cruel and unusual. As you’ve probably guessed, the convict’s confinement was lengthy because he kept filing appeals!
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Justice Breyer wanted to hear the case, and, to support his belief that lengthy death row imprisonment was unconstitutional, he cited any law he could get his hands on. He talked about Jamaican law; he riffed on the European Court of Human Rights; he dragged in the appellate courts of India. And, in what Justice Breyer must now consider to be an embarrassment, he cited the Supreme Court of Zimbabwe as an institution we should look to for constitutional guidance.
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.
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