The Corner

We Are the World

Wiser Cornerites than I have weighed in on the transnational inclinations of some of the lawyerly nominees to this Administration, but it seems to be the way the wind is blowing. For her part, in the observances of her 15th anniversary on the Supreme Court, Ruth Bader Ginsburg returned to the subject of foreign law:

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday…

“If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge,” Chief Justice Roberts said at his confirmation hearing. “And yet he’s playing a role in shaping the law that binds the people in this country.”

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.

A U.S. law professor is presumably writing with regard to U.S. law. A German judge (to use the Chief Justice’s example), if he is even aware of U.S. law, isn’t giving it a thought. But Justice Ginsburg seems to think law operates within a kind of global consensus:

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

I’m not sure whether she has the numbers for her Canadian assertion, but there are far more explicit legal ties between Canada and other British Commonwealth jurisdictions. The Privy Council in London remains the highest court of appeal for many independent nations, from the Bahamas to Mauritius to Kiribati. It’s part of the common legal inheritance to cite precedents from one Commonwealth jurisdiction in another: for example, during my troubles with the Canadian “Human Rights” Commission last year, Julian Porter, QC filed a motion to open up a closed hearing citing not only CBC v. New Brunswick, but also Ambard v. Attorney-General of Trinidad and Tobago.

By comparison, the United States is far more constitutionally contained. By “listening to others,” Justice Ginsburg means, in effect, Europe, Canada and one or two other places: There’s no suggestion she’s interested in Saudi jurists’ views on capital punishment for sodomy or Yemeni precedents on women’s rights. Yet America differs sharply even from those countries in the Common Law and broader western traditions in the protection it affords, say, free speech and the right to bear arms. If Justice Ginsburg is correct in her view that there is a global consensus on the great questions, then America is badly out of whack. And long may that continue: After my experience up north, I value the First Amendment all the more because it is at odds with the way the rest of the world is going.  

Mark Steyn is an international bestselling author, a Top 41 recording artist, and a leading Canadian human-rights activist.

Most Popular

Film & TV

Hillbilly Elegy: Ron Howard’s Inverted Mayberry

Hollywood knows two registers when it comes to the white working class (WWC): sentimentalizing and condescending. WWCs are either cute, neighborly, and folksy, or they constitute a tawdry, alien life form. There are 130 million WWCs in our country, and yet nobody in Hollywood has the slightest grasp of them. With ... Read More
Film & TV

Hillbilly Elegy: Ron Howard’s Inverted Mayberry

Hollywood knows two registers when it comes to the white working class (WWC): sentimentalizing and condescending. WWCs are either cute, neighborly, and folksy, or they constitute a tawdry, alien life form. There are 130 million WWCs in our country, and yet nobody in Hollywood has the slightest grasp of them. With ... Read More

The Rural Way

Almost every national Election Night reveals the same old red/blue map. The country geographically is a sea of red. The coasts and small areas along the southern border and around the Great Lakes remain blue atolls. Yet when the maps are recalibrated for population rather than area, the blue areas blow up, ... Read More

The Rural Way

Almost every national Election Night reveals the same old red/blue map. The country geographically is a sea of red. The coasts and small areas along the southern border and around the Great Lakes remain blue atolls. Yet when the maps are recalibrated for population rather than area, the blue areas blow up, ... Read More
Books

Jordan Peterson v. the Publishing Mob

Staff at Penguin Random House Canada have “confronted management” about the decision to publish Jordan Peterson’s book in an “emotional town hall,” Vice reports. Peterson’s Beyond Order: 12 More Rules for Life will be released in March 2021. Apparently, one “junior employee who is a member of the ... Read More
Books

Jordan Peterson v. the Publishing Mob

Staff at Penguin Random House Canada have “confronted management” about the decision to publish Jordan Peterson’s book in an “emotional town hall,” Vice reports. Peterson’s Beyond Order: 12 More Rules for Life will be released in March 2021. Apparently, one “junior employee who is a member of the ... Read More
Elections

To ‘Steal’ an Election

Dan has a good article on the homepage, the main point of which is that the system worked, since Trump’s efforts to reverse the election failed. Certainly I agree with him about that. But he also finds charges that Trump tried to “steal” the election “overheated.” Since I made such a claim myself, I ... Read More
Elections

To ‘Steal’ an Election

Dan has a good article on the homepage, the main point of which is that the system worked, since Trump’s efforts to reverse the election failed. Certainly I agree with him about that. But he also finds charges that Trump tried to “steal” the election “overheated.” Since I made such a claim myself, I ... Read More
The Capital Note

Palantir’s Eye-Popping Rally

Welcome to the Capital Note, a newsletter about business, finance and economics. On the menu today: Palantir shares skyrocket, a giant of labor economics passes away, Slack in acquisition talks with Salesforce, and Yellen’s plans for Treasury-Fed cooperation. The Palantir Bump: Politics or Product? Palantir, ... Read More
The Capital Note

Palantir’s Eye-Popping Rally

Welcome to the Capital Note, a newsletter about business, finance and economics. On the menu today: Palantir shares skyrocket, a giant of labor economics passes away, Slack in acquisition talks with Salesforce, and Yellen’s plans for Treasury-Fed cooperation. The Palantir Bump: Politics or Product? Palantir, ... Read More
White House

Implications of the Flynn Pardon

President Trump granted a pardon to Michael Flynn, his former national-security adviser, today. Flynn had pled guilty to lying to FBI agents about conversations, during the 2016 transition, with the Russian ambassador about sanctions. Flynn’s pardon should bring to an end one gross violation of the ... Read More
White House

Implications of the Flynn Pardon

President Trump granted a pardon to Michael Flynn, his former national-security adviser, today. Flynn had pled guilty to lying to FBI agents about conversations, during the 2016 transition, with the Russian ambassador about sanctions. Flynn’s pardon should bring to an end one gross violation of the ... Read More
Elections

It’s Only ‘Free and Fair’ When We Win

Indeed, this is astonishing: https://twitter.com/felixsalmon/status/1331295033325219840 In 2018, after two years of media spinning tales about shady Russian infiltrators in our government, 67 percent of Democrats believed that Putin’s gremlins had bored into our voting machines and altered the outcome ... Read More
Elections

It’s Only ‘Free and Fair’ When We Win

Indeed, this is astonishing: https://twitter.com/felixsalmon/status/1331295033325219840 In 2018, after two years of media spinning tales about shady Russian infiltrators in our government, 67 percent of Democrats believed that Putin’s gremlins had bored into our voting machines and altered the outcome ... Read More