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Whose constitution is it, anyway? Supreme Court justices are importing foreign law, signaling a historic and deplorable shift

National Review, Dec 8, 2003 by Robert H. Bork

WHAT is going on here? Justice Sandra Day O'Connor in a recent speech said that decisions of other countries' courts could be persuasive authority in American courts. At a time when 30 percent of the U.S. gross national product is internationally derived, she said, "no institution of government can afford to ignore the rest of the world."

She is by no means alone on the Supreme Court. Six of that Court's nine members have either written or joined in opinions citing foreign authorities. The most astonishing, or risible, so far was Justice Stephen Breyer's opinion arguing that he found "useful" in interpreting our Constitution decisions by the Privy Council of Jamaica, and the Supreme Courts of India and Zimbabwe. Jamaica and India are far-fetched enough. But Zimbabwe--the country devastated by the blood-stained dictator Robert Mugabe! We might as well learn our constitutional law from Saddam Hussein's Iraq or Fidel Castro's Cuba.

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Since the mid 1950s we have been in a third great period of constitution-making. Unlike the first two (1787 to 1791 and 1865 to 1870), this one is the work of judges, which achieves efficiency by cutting out the middlemen, the American people acting through their state conventions and legislatures. The efficiency gain is clear, but those hung up on technicalities complain of a lack of legitimacy. Justice Scalia commented on one of the Supreme Court's more imaginative improvements on the Founders' work: "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."

Yet even Scalia at his gloomiest probably did not foresee that the new country might be designed bit by bit from European, Asian, and African models. In Lawrence v. Texas, the decision creating a constitutional right to homosexual sodomy, Justice Kennedy cited a decision of the European Court of Human Rights. In a concurring opinion in Grutter v. Bollinger, a case upholding a law school's minority preferences in admissions, Justice Ginsburg, joined by Justice Breyer, rejoiced that the decision was in line with the International Convention on the Elimination of All Forms of Racial Discrimination. In Thompson v. Oklahoma, Justice John Paul Stevens, writing for four members of a divided Court, cited the approval "by other nations that share our Anglo-American heritage, and by the leading members of the Western European Community," as well as foreign legislation and three human-rights treaties, two of which had not been ratified by the United States.

DOWN FROM OLYMPUS

We should not have been taken unaware by this absurd turn in our jurisprudence. Most members of the Court belong to that brand of intellectuals that John O'Sullivan has termed "Olympians." Kenneth Minogue added that "Olympianism is the project of an intellectual elite that believes that it enjoys superior enlightenment and that its business is to spread this benefit to those living on the lower slopes of human achievement." Hence the steady stream of Court decisions striking down various restrictions on abortion, on the telecasting of sex acts, and on computer-simulated child pornography; and outlawing any aspect of religion even remotely bearing on government. The Olympians' aspirations are universal. As Minogue put it: "Olympianism [is] a vision of human betterment to be achieved on a global scale by forging the peoples of the world into a single community based on the universal enjoyment of appropriate human rights.... Olympians instruct mortals, they do not obey them."

It is hardly surprising, then, that Linda Greenhouse would write in the New York Times with complacent approval that "justices have begun to see themselves as participants in a worldwide constitutional conversation." It might be more accurate to say that they see themselves as participants in a worldwide constitutional convention. Constitutions, ours and others', are being remade without reference to the principles actually embodied in them. It seems highly unlikely, to say the least, that the meaning of our Constitution, created by Americans primarily in the 18th and 19th centuries, should turn out to be the cultural fads of Frenchmen and Germans today.

The justices now regard themselves as statesmen. Justice O'Connor, referring to a 2002 decision holding the execution of a mentally retarded man unconstitutional, said that the Court took note of the world community's overwhelming disapproval of the practice. She said that the "impressions we create in this world are important." She went on to say that the Court found influential an amicus brief filed by American diplomats discussing the difficulties they confront in their foreign missions because of U.S. death-penalty practices. Of course, the European elites are enraged by any death penalty, which means the diplomats will continue to be vexed so long as the federal or any state government has capital punishment. Logically applied, as one must hope it will not be, this should mean that concern for the good opinion of Europeans and the comfort of our diplomats would persuade the Court to declare the death penalty unconstitutional altogether, despite the fact that the Constitution several times explicitly recognizes the availability of that punishment.

Whose constitution is it, anyway? Supreme Court justices are importing foreign law, signaling a historic and deplorable shift

National Review, Dec 8, 2003 by Robert H. Bork

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