At Ohio State University, Justice Ruth Bader Ginsberg articulated her belief that America’s highest judicial body should take foreign legal rulings into account when deciding cases.
“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Ginsburg said Friday in a symposium honoring her at Ohio State University, The New York Times reports.
“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she says.
Much of the criticism aimed at her statements is greatly overblown and I’m sure someone at a Tea Party is predicting that in a few short years, for example, a German judicial decision will force a re-reading of the Second Amendment and restrict firearms to a post-“Don’t ask, don’t tell”, exclusively homosexual army, or something crazy like that.
Such concerns are unfounded since Ginsburg made clear American jurists should never be bound by foreign decisions in a precedential sense, but should consider the views as part of the consensus opinion on the subject.
Nonetheless, there are plenty of serious issues with Ginsburg’s notion that international norms should be considered when determining constitutional issues.
America’s defining documents are the Declaration of Independence and the US Constitution. Though the definition and composition of “We the People”, from whose authority the Constitution is derived, is certainly debatable, it is difficult to accept an interpretation that includes non-Americans as well as Americans. The Declaration and Constitution set the parameters within which the American polity must operate; laws must be created, enforced, and viewed in accordance with the documents’ letters and principles. A judge’s role is to determine whether the legislature, the executive, the states, etc. are ‘getting the law right’ according to these documents, principles, and popular views (as reflected in constitutional legislation).
Jurists who are not beholden to America’s legal system, not put in place through America’s political system, and not deciding an American constitutional issue should not be looked to for judicial inspiration. Indeed, foreign legal decisions, other than those that directly influenced America’s foundational principles (Magna Carta, British common law, etc), should not be part of the criteria for an American judge to consider.
Ginsburg also likens citations of a foreign decision to that of a paper by a law professor.
Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.
“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.
But that seems like a strange and vague analogy since, as David Bernstein at Volokh Conspiracy points out:
Well, that depends. If, for example, the issue is interpreting a clause of the U.S. Constitution, and the law review article is about the text and history of the U.S. Constitution, and the “judge from abroad” is writing about the E.U. Constitution, or international norms, or moral theory, then there is very good reason one would “look to the wisdom” of the American professor, and not to that of the foreign judge.
Furthermore, legal scholars have pointed out that even rule-of-law-abiding countries possess quite distinct legal cultures and systems. For example, Europe has far different conceptions of rights to privacy, speech, etc than the American legal understanding. As a result, the legal system has evolved in sharply different manners. And that should make sense – since the Treaty of Westphalia, states have developed with complete sovereignty and authority within their borders. Clearly, states will influence others, including in the judicial realm (USAID sends judiciary experts all around the developing world). But foreign judicial opinions based on foreign judicial and legal systems presumably based on foreign constitutions have no place in determining American constitutional issues.
Unfortunately however, the fascinating question of citing foreign law is being rolled into the larger culture war, which takes away from the central legal questions. The more liberal justices have tended to unnecessarily cite European views in regard to divisive social issues, when in fact, these do not add to their oftentimes legitimate arguments but only incite further opposition.
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