There has been a lot of talk recently about international
law and custom seeping into American constitutional law. Alarmingly,
this dangerous idea hasn't just come from pointy-headed academics
but from our United States Supreme Court justices.
The Atlanta Journal-Constitution reports that Justice Sandra
Day O'Connor, in a speech to the Southern Center for International
Studies, said that American courts should pay more attention
to international court decisions when deciding their own cases.
Perhaps because she wasn't speaking to a group of lawyers
or students of the Constitution, O'Connor placed an undue emphasis
on matters having nothing to do with her proper role as a judge.
But that's no excuse. She said what she said, and to lovers
of liberty and the Constitution, her remarks should be exceedingly
disturbing.
She said that in recent years, the United States
Supreme Court has broken from its practice of "declin(ing) to consider
international law when reaching important decisions," and
is now "acknowledging the thoughts of the global community." This,
from a Republican-appointed Justice? There's more.
Relying on foreign court decisions "may not only enrich
our own country's decisions, I think it may create that all-important
good impression," said O'Connor, as if addressing diplomats
at the United Nations. Of course it is true that the impressions
we create in this world are important, but "creating good
impressions" is not the function of the Court -- interpreting
the Constitution is. But her statement is no surprise.
Many Supreme Court decisions purporting to interpret the Constitution
do anything but that. In many cases, the justices merely substitute
their opinions -- based on whatever suits them at the time,
including international law -- for the plain meaning of the
language or the Framers' original intent.
Indeed, O'Connor said, "I suspect that
over time we will rely increasingly, or take notice at least
increasingly, on
international and foreign courts in examining domestic issues."
Sadly, Justice O'Connor is not alone. Justice
Ruth Bader Ginsberg is similarly unapologetic about the Court's
increasing resort
to foreign authority. She acknowledged "the growing effect
of international law" on the Court's decisions, especially
in death penalty, race admissions and gay sex cases.
"Our island or lone ranger mentality is beginning to
change," she said. Justices "are becoming more open
to comparative and international law perspectives."
Nothing in the Constitution suggests that the Court has any
authority whatsoever to rely on the decisions of international
courts in rendering its own decisions. If the highest court
in the land can just fabricate bases upon which to decide cases,
our entire legal system, the structural framework for our Republic,
is in grave jeopardy.
How is it that such justices do not understand that when they
rely on extra-constitutional authority, they are arrogating
to themselves power not granted to them in the Constitution,
but more importantly, divesting the American people of their
sovereignty?
If the American people want to adopt the laws and customs
of other nations through their duly elected representatives
-- even though our ancestors fought a revolution and subsequent
wars for the right to establish our own criteria for governing
ourselves -- they are free to do so. But the unelected judiciary
has less than no business doing so. It ought to be ashamed
for doing it and even more so for its unbridled arrogance.
Beyond the obvious damage this "international" mentality
is inflicting on our jurisprudence, our Constitution and our
liberties themselves, we should also be concerned with the
larger cultural trend toward adopting the mores of other countries
and rejecting those traditional values upon which our nation
was built.
We are seeing the fruits of a radical secularism
in our culture -- the kind that dismisses Western Civilization
and the unique
American culture through the euphemistic disguise of multiculturalism.
Liberal politicians are increasingly disrespecting American
sovereignty and urging through another misleading euphemism "multilateralism" that
we allow other nations, essentially, to conduct our foreign
policy without regard to our strategic national interests.
And now we are witnessing this disturbing development with
the Courts.
If I were prone to conspiracy theories, I'd say there was
a global conspiracy going on here. But conspiracy or not, the
lines have been drawn between those in our society who want
to preserve the system that produced the freest and most prosperous
nation in the history of the world and those who act as though
they are ashamed of that remarkable record. No one can afford
to be neutral on these issues.