Bench Memos

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Re: The Supreme Court and Foreign Law


Here’s the testimony that I will present at tomorrow’s (Tuesday’s) hearing in the House of Representatives on the Supreme Court’s misuse of foreign law in construing the Constitution. I will focus on the Court’s opinion several months ago in Roper v. Simmons, which relied on international opinion” in support of its ruling that the death penalty constitutes “cruel and unusual punishment” when applied to any murderer who was 17 when he committed the murder. I will also address the remarkably feeble defenses of this practice (e.g., “Well, on this kind of an issue you’re asking a human question, and the Americans are human–and so is everybody else”) offered by Justices Ginsburg and Breyer.

An excerpt:

No Justice has articulated, and there is not, any legitimate basis for the Supreme Court to rely on contemporary foreign laws or decisions in determining the meaning of provisions of the Constitution. Moreover, it is clear that there is no principle that any Justice has devised or will adopt that will explain why it would be proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others. The six Justices who nonetheless resort to these materials do so because they embrace an essentially lawless–i.e., unconstrained–view of their own role as Justices.

It is no coincidence that it is these same six Justices who have endorsed the vacuous New Age declaration that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” For that declaration is nothing more than camouflage for the underlying claim by those Justices to have the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of American citizens to address through legislation.

The Framers established a constitutional structure under which American citizens, within the broad bounds delineated by the Constitution, have the power and responsibility to decide how their own states and communities and the nation should be governed. In their ongoing project to demolish that structure, these six Justices see foreign law as another powerful tool that they can wield whenever it suits them.

It follows that the broader long-term solution to the problem that H. Res. 97 usefully addresses is the confirmation to the Supreme Court of originalist Justices, like Scalia and Thomas, who understand that the Constitution constrains them to construe its provisions in accordance with the meaning they bore at the time they were promulgated and that it does not permit them to impose their own policy preferences on the grand (or minor) questions of the day.

If you’re interested in the hearing, a video webcast should be available here both live (at 4:00 tomorrow) and for some time thereafter.


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