FOREIGN LAW AND THE SUPREME COURT

Wingnuttia has been in a tizzy for more than a year about the use of foreign law in U.S. Supreme Court decisions and I was also wondering about how that makes sense. Recently, Justice Ginsburg gave a speech in South Africa that clears up this culture war "issue."

Here are some excerpts:


Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions.

To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed."

On the question of dynamic versus static, frozen-in-time constitutional interpretation, the Court's Lawrence v. Texas opinion instructs:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Holding unconstitutional the execution of persons under the age of 18 when they committed capital crimes, the Court declared it fitting to acknowledge "the overwhelming weight of international opinion against the juvenile death penalty." Justice Kennedy wrote for the Court that the opinion of the world community provides "respected and significant confirmation of our own conclusions." "It does not lessen our fidelity to the Constitution," he explained, to recognize "the express affirmation of certain fundamental rights by other nations and peoples."

I was impressed by an observation made in September 2003 by Israel's Chief Justice Aharon Barak. September 11, he noted, confronts the United States with the dilemma of conducting a war on terrorism without sacrificing the nation's most cherished values, including our respect for human dignity. "We in Israel," Barak said, "have our September 11, and September 12 and so on." He spoke of his own Court's efforts to balance the government's no doubt compelling need to secure the safety of the State and of its citizens on the one hand, and the nation's high regard for "human dignity and freedom on the other hand." He referred, particularly, to a question presented to his Court: "Is it lawful to use violence (less euphemistically, torture) in interrogat[ing] [a] terrorist in a 'ticking bomb' situation." His Court's answer: No, "[n]ever use violence." He elaborated:

[It] is the fate of a democracy [that] not all means are acceptable to it, . . . not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of [a democracy's] understanding of security. At the end of the day, [those values buoy up] its spirit and strength [and its capacity to] overcome [the] difficulties.