Bench Memos

The Supreme Court and Foreign Law

Here’s an issue that deserves prominent play in the public discussion of what makes a good Supreme Court justice: In recent years, six justices of the Supreme Court have relied on foreign and international legal decisions and other legal materials to construe the meaning of the U.S. Constitution. It should be no surprise that these are the 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 both moves are nothing more than camouflage for the essentially lawless–i.e., unconstrained–view that these six have of their own power as justices to override the political choices that American citizens make through their elected representatives.

The strikingly feeble justification that these justices offer for their illegitimate reliance on foreign law is quite amusing, as I hope this NRO essay of mine from April, “Alien Justice: Ruth Bader Ginsburg vs. the Declaration of Independence,” shows.

I am pleased to report that I will be testifying on this issue at a hearing before the Constitution subcommittee of the House Judiciary Committee next Tuesday. Chairman Steve Chabot of Ohio and other members of the subcommittee are really engaged on this issue, so it should be an excellent hearing. (I will link to my testimony as soon as it is available.)

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