More “wisdom” from Justice Ginsburg

February 6, 2012

Last Saturday I wrote about my… “disappointment” at Justice Ginsburg’s dismissive attitude toward using the US Constitution as a model for others. Thanks to a link from Jim Vicevich, I was reminded of one of Madame Justice’s earlier moments of glory, from 2009: her inability to understand why anyone would have a problem with an American judge using foreign law to shape US judicial decisions:

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.

(…)

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.

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.”

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

“What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.”

American hostility to the consideration of foreign law, she said, “is a passing phase.” She predicted that “we will go back to where we were in the early 19th century when there was no question that it was appropriate to refer to decisions of other courts.”

(Emphasis added)

I’m a helpful, caring sort of guy and I have a great deal of sympathy for confused little old ladies, so let’s see if we can help Justice Ginsburg out, shall we?

First, I suggest she reread the article, with special emphasis on the quote from her colleague, Chief Justice Roberts:

“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.”

And there’s the key: democratic accountability. While we rightly shield federal judges from base politics and the need to run for office, we can still say with reason that they are accountable to the people because we elect those who appoint and confirm the judges. And, in the worst cases, they can be removed by the people’s representatives.

More directly, US judges rule on laws passed by American legislators who are democratically accountable to the American people, and the US judge operates under rules established by precedent (common law) and legislation (statute and constitutional amendments). He is the heir to an evolving legal and political tradition stretching back over 1,000 years to the origins of trial-by-jury and the field of Runnymede, and coming forward through the development of elected parliaments, separation of powers, and judicial review to form a system that works because it has the legitimacy of the people.

None of that applies to the hypothetical German judge, who works within his own context and whose rulings carry none of that legitimacy here.

I would suggest to Madame Justice that, regardless of what law reviews she chooses to read (and I applaud her desire to broaden her horizons), it is not at all unreasonable or incomprehensible that she or any American judge should be expected to confine her judicial rulings to the law derived from that rich Anglo-American heritage and enacted with democratic legitimacy under the US Constitution.

If she wants to refer to the writings of Edward Coke, great! But a ruling of the French Constitutional Council? Non!

PS:  A “passing phase?” Why does this sound like Justice Ginsburg is telling the rest of us (and her colleagues?) to “grow up?” Oh, wait. That’s because that’s exactly what she is doing, because that’s what progressives do: condescend. We’re just not enlightened enough and too busy clinging bitterly to our old, outdated Constitution to understand progressive, sophisticated jurisprudence.

PPS: And why should a US Justice care how often her court is cited relative to others? What matters is the Court’s legal influence within the United States, not being a finalist in some international judicial beauty contest.

PPPS: Though she did raise an interesting question. I wonder how often foreign law was cited in the Early Republic?

(Crossposted at Sister Toldjah)


Bill Whittle: “How to steal power” or “Turning the Constitution upside-down”

October 31, 2011

Bill’s back with another episode of Afterburner, this time taking a look at how progressives (including Supreme Court justices) have regularly twisted (and even tortured) the plain meaning of the Constitution to get what they want, rather than what the document allows. Bill focuses on two much-abused clauses in Article I, section 8, “General Welfare” and “Commerce,” to show that, interpreted in the progressive manner, as part of a “Living Constitution,” (1) these clauses stop being limits on government’s power and instead become grants of unlimited power.

My own view is that of originalism, that the document has to be read as the Convention and the ratifying states intended. Where the language is plain, as in…

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

…then the argument ends. In more ambiguous sections (often due to 18th century grammar and style), we can use our reason (2) and examine primary sources of the time, such as the Federalist and Anti-Federalist Papers, the records of the Constitutional Convention, and the contemporaneous state constitutions to figure out what was intended.

And where the powers delegated to the federal government under the Constitution are inadequate to meet a truly national or multi-state issue, there’s this little thing called Article V that provides a means to rewrite the rules in a manner best-suited to creating consensus — unlike diktats from imperialist judges divining the current meaning of the living constitution from its penumbras and emanations.

Any other way is just stealing power.

Footnote:
(1) Just to be fair to the other side, Strauss’ recent book, The Living Constitution, has been receiving good reviews. It never hurts to know the other guys’ arguments.
(2) Contra Ezra Klein, it’s not hard.

(Crossposted at Sister Toldjah)


Abusing the Constitution: health care and the case of the Commerce Clause

August 26, 2010

While we rightly agree to abide by the decisions of the Supreme Court as the final arbiter of what is and isn’t constitutional (barring changes via amendment), that doesn’t mean all its decisions are correct, or that its errors are without consequence. Among the more famous errors of the Court, consider Dred Scott v Sandford, which upheld fugitive slave laws; Plessy v Ferguson, which upheld segregation in state law; Buck v Bell, which upheld state laws mandating forced sterilizations; Korematsu v United States, which permitted the forced internment of Japanese-Americans during WWII; and the recent Kelo v City of New London, which made a mockery of the 5th Amendment’s takings clause.

So, it should come as no surprise that another bad Court decision, Wickard v Filburn, is at the heart of the Federal government’s vast expansion of its power via an upside-down interpretation of the Commerce Clause. In the following short video essay, Reason.TV looks at the Commerce Clause, the expansion of federal power its abuse enabled, and frames it via interviews with two legal scholars: Erwin Chereminsky, Dean of the UC Irvine Law School and an advocate of the “living Constitution,” and John Eastman, Professor of Law at Chapman University and a constitutional originalist. I think you’ll find it worth the ten minutes:

I think for anyone who understands that the Constitution is a document intended to limit the Federal government’s powers, Chereminsky’s arguments are almost frightening. (Side note: Professor Eastman ran for the Republican nomination for state attorney general in the last election; I voted for him and I’m sorry he didn’t win.)

This debate isn’t just academic, as the video points out: rather, it is of immediate urgency as  Congressional Democrats and the Obama Administration try to justify their statist health care plan and its individual mandate under the Commerce Clause. It also shows why Wickard, the foundation of Congress’ metamorphosis into Leviathan, needs overturning, whether through the Court in upcoming cases, or via a constitutional amendment that refines the meaning of the Commerce Clause.

If limited government is to have any meaning at all, this hole the Left has exploited must be plugged.

LINKS: More from Hot Air. Justice Scalia criticizes the theory of the living Constitution.

(Crossposted at Sister Toldjah)