It's Not My Job, Man
Ginsburg’s speech was titled “A Decent Respect for the Opinions of [Human]kind.” In it, Ginsburg argued explicitly for the relevance of foreign law and court decisions to interpretation of the American Constitution. Ginsburg did not try to hide the partisan nature of this issue; at one point, she referred to “the perspective I share with four of my current colleagues,” and she specifically criticized Justice Antonin Scalia, Judge Richard Posner, and the two bills that were introduced in Congress in 2004 and were broadly supported by Republicans.For the uninitiated, the issue is American judges using foreign law and court decisions to rule on matters of American law. Justice Ginsberg is quoted as saying:
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.”Like the fairness between the Chinese government and its people? Or perhaps the fairness between Robert Mugabe and his people? And, why is foreign judisprudence relevant at all? If I'm not mistaken, the Declaration of Independence and Constitution were crafted specifically to define a new and unique relationship between government and the goverened. Are these documents now irrelevant and Americans and their government now expected to behave towards one another in a manner as the governments and governed in other nations? Is this some [Liberal] judicial game of keeping up with the Joneses?
As for control, we as Americans through our legislature get to choose that which controls us, not judges. Judges are merely required to decide whether legislation is consistent with the Constitution. If Americans want judges in South Africa or Italy or even the United Kingdom to influence American law, then Americans can do it through Congress. Judges don't get to make that decision.
Make no mistake. This trend is not madness, but a reasoned, intellectual sleight of hand to butress opinions and ideology these Justices know Americans won't like and have no business gaining the respect of the rule of law under our system. Americans, and only Americans should decide what's right for America.
The last time I reviewed my oath of office, the only document referred to was the Constitution of the United States. And, just as importantly, I'm obligated to defend it against both foreign and domestic enemies. The bottom line is this: when Americans, Madame Justice, are sufficiently outraged and proceed up the steps to the Supreme Court to carry you off, don't expect me to stand in their way.