Bench Memos

Re: Ginsburg’s Threat

One other thought on Justice Ginsburg’s public disclosure of the Internet chat threat made against her a year ago (a disclosure that received attention in this Washington Post article today): Apart from Ginsburg’s public disclosure of the details, the idiot who made the threat would have no way of knowing that his threat even reached Ginsburg. Now, thanks to the use that Ginsburg has made of the threat, he can know that he has reached an international audience. If Ginsburg were seeking to invite similar threats from kooks, I’m not sure that she could have selected a course of action more likely to produce that result. (In order to assert a linkage between the congressional resolutions and the threat, all Ginsburg had to disclose was the fact of a threat; none of the additional details she provided lends any further credibility to her assertion.) This reinforces my suspicion that Ginsburg’s primary purpose in publicizing the threat was to chill criticism of her shoddy substantive arguments.

In addition to the NRO essay that I link to in my original posting, here’s the concluding part of my congressional testimony from last July (from the very day on which President Bush announced his intention to nominate John Roberts, as it happens) on the question of using foreign law to construe the Constitution — and on the congressional resolution that Ginsburg somehow finds “disquieting”:

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.

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