Posted by David Bernstein:
Ginsburg on Citing Foreign Legal Decisions:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239605727
[1]The New York Times has an account of a speech by Justice Ginsburg
defending the practice of citing foreign legal decisions:
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.
Well, that depends. If, for example, the issue is interpreting a
clause of the U.S. Constitution, and the law review article is about
the text and history of the U.S. Constitution, and the "judge from
abroad" is writing about the E.U. Constitution, or international
norms, or moral theory, then there is very good reason one would "look
to the wisdom" of the American professor, and not to that of the
foreign judge.
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."
Really, who cares? Justice Ginsburg's job is to get American law
right, not to influence the rest of the world's law. And, anyway, it
strikes me that the Canadian Constitution, as interpreted by its
Supreme Court, is much more in line with the more collectivist
ideologies of other nations than is the U.S. Constitution. Consider
how Canada allows free speech to be balanced against purported
societal interests in such a way that, for example, allows bans on
purported "hate speech." The U.S. should be proud that our law stands
alone in this regard, not lamenting that it prevents us from getting
cited abroad.
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."
Well, that's just bizarre. The Holocaust was carried out by a Nazi
dictatorship that hadn't been elected since 1932. And if Weimar
Germany had established a constitutional court, it's highly unlikely
that it would have meaningfully stood in the way of the Nazis. But I'm
willing to reconsider if someone can point me to academic literature
showing that the establishment of constitutional courts was a response
to the Holocaust.
And note the irony that there is one national "constitutional court"
that did stand in the way of rising tide of fascism and
fascist-inspired policies in the 1930s, and that's the U.S. Supreme
Court. The Court invalidated various New Deal policies, in particular
the National Industrial Recovery Act (unanimously), that threatened to
concentrate far too much unreviewable power in the hands of the
President (in the case of the NIRA, the power to set wages and prices
across a broad swath of the American economy). If Ginsburg has ever
said a kind word about the Supreme Court of the early New Deal period,
however, I'd be very surprised. She certainly consistently votes
against any attempt to revive even minimal limits on the federal
government's power.
In her remarks, Justice Ginsburg discussed a decision by the
Israeli Supreme Court concerning the use of torture to obtain
information from people suspected of terrorism.
"The police think that a suspect they have apprehended knows where
and when a bomb is going to go off," she said, describing the
question presented in the case. "Can the police use torture to
extract that information? And in an eloquent decision by Aharon
Barak, then the chief justice of Israel, the court said: 'Torture?
Never.'"
The message of the decision, Justice Ginsburg said, was "that we
could hand our enemies no greater victory than to come to look like
that enemy in our disregard for human dignity." Then she asked,
"Now why should I not read that opinion and be affected by its
tremendous persuasive value?"
I don't know that Ginsburg is accurately describing Israel's law,
which as I understand it allows the use of "moderate physical
pressure" in exigent circumtances. (Also, an aside, the Israeli
Supreme Court is a rather dubious institution. It has arrogated to
itself the power to determine the constitutionality of various very
important government policies, including with regard to questions of
national security, despite the fact that Israel has no constitution.
That Barak, a leading advocate of this constitutional coup, is so
widely admired by American liberal constitutionalists likely says
something significant, and to me not very positive, about their view
of the proper role of the judiciary.)
Regardless, there is very good reason that Justice Ginsburg shouldn't
be affected by Justice Barak's opinion, as described by Ginsburg, and
that's its reliance on moral judgment rather than law. It's not
Justice Ginsburg's job to decide whether allowing the use of torture
is a lesser evil, or whether it should be banned because it means "we
come to look like that enemy in our disregard for human dignity." Such
determinations are for the elected branches to make in establishing
the law, and Justice Ginsburg's job is to apply the law they have
made, not to make up rules that comport with the values she has
adopted after thinking very hard about the learned decisions of judges
in other countries. Justice Ginsburg is free to be personally
persuaded on the moral issue by Justice Barak, but this should have no
effect on her vote on any case involving the legality of torture.
By the way, readers interested in why, in historical context, it's
important to limit the influence of foreign law on American
constitutional interpretation should read, among other things, one of
my favorite books, Ken Kersch's Constructing Civil Liberties, with a
focus on [2]the final chapter. In short, the "turn to international
law" is the latest in a series of attempts by the Progressive left,
some more successful than others, to separate American constitutional
law from the unique values that animate the U.S. system of government.
Comments will be open for four hours.
References
1. http://www.nytimes.com/2009/04/12/us/12ginsburg.html?_r=1&em
2.
http://books.google.com/books?id=ogzSfqbuOMUC&pg=PA348&lpg=PA348&dq=kersch+constructing+civil+liberties+%22cosmopolitan+democracy%22&source=bl&ots=k9L62JZZh5&sig=2ziWpHTJYRZ8xHNpnLdKiNJzXGI&hl=en&ei=xN_iSZv9I5DvlQfHo6DgDg&sa=X&oi=book_result&ct=result&resnum=1
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