Bench Memos

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Washington Post Editorial on Ginsburg and Foreign Law


Today’s Washington Post has an excellent house editorial criticizing Justice Ginsburg’s “unfair insinuations about critics of the use of foreign law in American courts.” As the Post puts it: “One doesn’t have to agree, in other words, that foreign law has no place in American courts to worry that courts are using foreign law too politically. And one doesn’t need to be Chief Justice Taney — or a South African racist or an aspiring domestic terrorist — to believe that it would be better if courts did not interpret America’s founding documents in light of foreign authorities that postdate them.” (This is, of course, quite an understatement, as Ginsburg’s arguments have the same intellectual rigor as arguing against vegetarianism by stating that Hitler was a vegetarian.)

One quibble: In leaning over backwards to try to say something nice about Ginsburg’s shameful performance, the editorial errs in stating that “Ginsburg has a strong case to make without stooping to such insinuations.” As I discuss in this essay, beyond such insinuations, Ginsburg offers only kindergarten platitudes — “we can learn from others,” “we can join hands with others,” we should “share our experience” — and never even attempts to explain how a foreign court’s decision on how a foreign law measures up to a foreign charter can or should have analytical value in construing our Constitution.


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