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Ginsberg, ruling by foreign law - The Phantom Librarian
Spewing out too many words since November 2003
Ginsberg, ruling by foreign law
So, Justice Ginsberg has defended the use of foreign laws to interpret the U.S. Constitution. Righties are off the wall about "legislating for the bench" and "activist courts," and Ginsberg is on about people disagreeing apparently believing that the Constitution should be stuck in the 18th century.

To shock righties, I'm of the Living Constitution tribe. No document can survive if you can't interpret it in terms of relevant issues. But "Living Constitution" doesn't mean "anything goes, if I happen to like it," and that's where my problem with this comes in. Our system is based on precedential rulings. They can be argued with and even ultimately changed, but they can't be ignored. Precedential rulings are rulings made from interpretations of our laws through our traditions, and they form the basis of our legal system. There may be similar laws and traditions in other countries, but they aren't precedential rulings here, and the best they can do is offer a model to consider as a possibility, not a basis on which to make a ruling counter to precedent. It's a lot like Jewish law--there are tons of disagreements about what this or that thing means, but ultimately, you go back through the Responsa and the Codes and the Talmud to a Biblical prooftext. Lots and lots of things can be argued through this method. But arguing that Catholics do something differently doesn't have any standing in Jewish law, except as a talking point. It's not part of the legal tradition.
43 comments or Leave a comment
kizmet_42 From: kizmet_42 Date: March 22nd, 2006 07:16 pm (UTC) (Link)
Was she awake when she did it?

Ok, that was nasty.

This idea that we must consider other countries' laws to determine out own offends me right down to my toes. If people want to live under those laws, let them go live there.
fernwithy From: fernwithy Date: March 22nd, 2006 07:35 pm (UTC) (Link)
It's offensive in attitude, but attitudes, whatever they are, are free. I'm more concerned at this point about the illogic of it. She's supposed to be one of the people entrusted to logically interpret the Constitution based on established principles, and there's no logical way to include that.
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fernwithy From: fernwithy Date: March 22nd, 2006 07:33 pm (UTC) (Link)
Yeah, I'm really hoping that I'm misinterpreting what she said somewhere, because it's just... odd. I could see being a justice and saying, "Well, the British have interpreted such-and-such to mean so-and-so... would that have any support in our own rulings?" Especially given the original basis in shared commonlaw. But using the foreign rulings themselves as support is nonsensical.
rabidsamfan From: rabidsamfan Date: March 22nd, 2006 07:56 pm (UTC) (Link)
IIRC what she said was that looking at how other countries have dealt with a point of law is one (among many) of the ways which the Supremes use to consider questions about the constitutionality of our own laws. Metaphors are useful, even in law. And when it comes to treaties, Constitutionally speaking, we are supposed to abide by them if they've been confirmed by the Senate.

Anybody got the complete statement, rather than an extract from one biased source or another?
greyathena From: greyathena Date: March 22nd, 2006 07:57 pm (UTC) (Link)
From what I understand, no one (including Justice Ginsberg) is suggesting that foreign rulings are precedential here in the US. And foreign laws and/or rulings are not being used to decide, for example, whether we should have a bicameral legislature or separation of church and state or whatever. Where foreign rulings have been used so far is to interpret vague phrases in the Constitution (like "cruel and unusual punishment") or vague concepts that have been read into the Constitution but aren't actually written anywhere in it (like "privacy"). This is part of the living document concept.

The point is not that England's ruling, or France's, or whoever's, should tell us what the Founding Fathers meant by "cruel and unusual," or by leaving personal privacy out of the Bill of Rights. The point is that if we want to have a living Constitution, every now and again someone is going to have to figure out what "cruel and unusual" means in 2006, or 2056, or 3006. Some of our jurists, Ginsberg included, don't think that looking only to American formulations of these concepts is enough, especially in situations where few American courts have decided on the issue.

So she/they is/are not saying, "Italy says it's cruel and unusual to execute juveniles, so we have to abide by that" (this is an example I only sort of made up). They're saying, "X many nations now believe it is cruel and unusual to execute a juvenile, which is persuasive evidence that maybe it is cruel and unusual." They are using foreign rulings as evidence of how human society elsewhere in the world defines these hard-to-define concepts. So they aren't looking to other countries for a legal decision, definition, or precedent; they are looking to them for a - you could call it semantic, maybe - definition of, eg., "what is cruel and unusual punishment in this day and age?"

Obviously you can disagree with this approach and say that American courts should only consider American attitudes when they are trying to revisit or update the official constitutional position on some of these changeable concepts. But it's not really a question of looking to foreign courts for precedent, as it is looking to foreign courts for guidance on how the human community feels about the concept in question. So - should the American constitution care what the whole world defines as cruel and unusual, or only what Americans would place in that category?
sprite6 From: sprite6 Date: March 22nd, 2006 09:27 pm (UTC) (Link)
So - should the American constitution care what the whole world defines as cruel and unusual, or only what Americans would place in that category?

Only what Americans place in that category - because only Americans are bound by the US Constitution. Shouldn't our own attitudes shape the laws we have to live by?

I understand what you're saying about the way foreign attitudes about an issue can influence ours, but we've had capital punishment in the US for a long time, under the same constitution. A justice can't just sweep this history away by saying, oh, but now it's cruel and unusual because most other nations think so. Attitudes about capital punishment are already changing here, and as more people come to disagree with it, our laws will change in the legislature, as they should.
caitie From: caitie Date: March 22nd, 2006 08:01 pm (UTC) (Link)
But didn't the most recent use of foreign law to influence a court decision involve a human rights issue? I believe it was the execution of minors, right?

While I agree that foreign law shouldn't necessarily be the basis for court decisions, I thought that court was mostly pointing out that we were one of the only countries that gave the death penalty to people under the age of 18 and that it's considered barbaric throughout much of our allied world.

Maybe I'm biased though since I completely agree with that decision; I guess I'll have to wait until one that I don't support comes along.
fernwithy From: fernwithy Date: March 22nd, 2006 10:13 pm (UTC) (Link)
It's not a bad argument for a lobbyist or an activist to use (depending on the audience)--shaming people into agreement has a long and effective history. But that's something that goes to the people--including you--not to the courts as a first resort. People become convinced of the truth of something, then they lobby the legislature, then they make a law, and then the courts decide whether it's Constitutional or not. If Americans are convinced that the rest of the world is right about something, then yes--they should be working to make that the law of the land, unless it infringes on our rights. (I don't care how many people you can get to agree that sharia would be a good idea, it still violates the First Amendment.)

The way the law is set up is that ideas go to the people first. It's a sales project. You get enough people working on something, it passes. And if you think a law is unconstitutional, you can sue and it goes to the courts. Right now, there's not much precedential weight behind juvenile executions being part of the definition of "cruel and unusual," but if more and more states pass laws banning them, then the "unusual" criterion would be met, and that would have been enough, I think, to fudge a ruling the public favors. More likely, it would never come up, because if you can get a ban on it passed legislatively, I don't see anyone suing to allow an illegal execution. And if they do, it can certainly be ruled as something legitimately within the state's rights to legislate one way or the other. The legislation was the way to go with that, not the judiciary.
naomichana From: naomichana Date: March 22nd, 2006 08:34 pm (UTC) (Link)
Arguing that Catholics do something differently does have standing in Jewish law, but only because there are some slightly xenophobic principles to the effect that we do some things in deliberately different ways than non-Jews do 'cause otherwise we'll become like them. (Yeah, I know.)

What amuses me about this is that the conservative wing of American opinion seems to have an equally antagonistic approach to any sort of foreign law. Next up: ideological kashrut!
fernwithy From: fernwithy Date: March 22nd, 2006 10:16 pm (UTC) (Link)
True. There's also the ban on polygamy, on the basis of it being a shame before the Gentiles that they were being more righteous about marriage. I realized that while I was typing, but I found myself short on time for explaining it. And that's a lot like the current issue, actually--are we going to be shamed before the nations or not?
sixth_light From: sixth_light Date: March 22nd, 2006 08:40 pm (UTC) (Link)
Hmmm. I'm divided about this. In the context of my own country, I'm definitely against using other countries' rulings as precedent, especially if it came to things like "everyone else has something like the Patriot Act, so we should too" or, God forbid, "Everyone else doesn't have a nuclear ban..." I mean, there are times when you need to stand up and say, damn the consequences, this is our country and our moral stand and we don'tr need precedent.

On the other hand, there are some fairly convincing reasons to look at overseas legislation as one of the discussion points for a change - in debating, we do it all the time - and in cases like, as others have said, the execution of minors, it can maybe tell you something important. (In our case, I'm thinking local loop unbundling.)

So I guess it's really a "only if I LIKE what other countries are doing thing", in which case it's best to say that yes, this is a valid way of approaching a topic, provided it is a) not the only thing you use to make your decision and b) the other country in question bears any sort of relevance to our country; I can't see Sharia law being a valid comparison to our legal system, for instance, because its basis is so very, very different from ours.
ladyvorkosigan From: ladyvorkosigan Date: March 22nd, 2006 08:41 pm (UTC) (Link)
Well, my understanding is that it's precisely what you're saying - it's persuasive not precedential. To me, it's not particularly different from citing a Mississippi decision in Massachusetts or a 3rd Circuit decision in the 4th Circuit. Or citing a law review article. If people have good reasoning and good ways of explaining it, there's no reason not to take that reasoning into account as persuasive, but you're certainly not bound by it.
ladyvorkosigan From: ladyvorkosigan Date: March 22nd, 2006 08:45 pm (UTC) (Link)
Not to be annoying and spam your journal with comments, but I just thought I'd drop in this interesting blog post a professor I had last semester wrote on the topic.
sprite6 From: sprite6 Date: March 22nd, 2006 09:00 pm (UTC) (Link)
This bothers me too. I can see how foreign law might be helpful if there isn't much American precedent for a case, but for issues of long standing, it's neither necessary nor desirable. The whole point of beginning the document with the phrase "We the people of the United States" is that we and we alone determine the laws of this country, and I don't think it's jingoistic for Americans to interpret the American Constitution according to - *gasp* - American standards.
lilacsigil From: lilacsigil Date: March 22nd, 2006 09:31 pm (UTC) (Link)
My understanding was that she used foreign laws in exactly the way you mention Catholic behaviour in Jewish law - as a talking point. The US doesn't exist in an international vacuum, and I don't see why it is so terrible for judges to look at how other countries do things when considering their interpretation of US law.

fernwithy From: fernwithy Date: March 22nd, 2006 09:57 pm (UTC) (Link)
Then I'm guessing there was some misspeaking, because there's no reason a talking point should cause controversy. Anything can be used to stir discussion. It's only if it is actually being used as a basis for Constitutional interpretation that it should be problematic. In other words, if she was just saying, "Well, the EU interprets this phrase as meaning such-and-such... is there any basis in our laws and precedents that would support such a contention?" then that's one thing. It also holds no power at all and shouldn't be a source of controversy, especially if it's being asked because people are enacting laws (through legislative processes) that are based on such an understanding, and such laws come to the Supreme Court to be judged. But if she's saying, "Because the EU thinks this way, we really should adjust our thinking about this issue," then it becomes problematic.
keestone From: keestone Date: March 22nd, 2006 11:04 pm (UTC) (Link)
This post became much less surreal when I realized that you weren't talking about Alan Ginsberg.

I think I need to go to sleep now.
fernwithy From: fernwithy Date: March 22nd, 2006 11:09 pm (UTC) (Link)
Bwa-ha-ha. Yeah, I think sleep would be good.
dreagoddess From: dreagoddess Date: March 22nd, 2006 11:51 pm (UTC) (Link)
You should read the decision that was handed down today, specifically the concurrence by Stevens and the dissent by Scalia. The overall case is a search & seizure question I'm sure is very dull if you're not a lawyer. But Stevens took the opportunity in his concurrence to thumb his nose at the originalist theory of constitutional construction. Scalia then wrote a dissent to say why Stevens had no earthly idea what he was talking about and originalism didn't mean anything like what he thought. *g*
fernwithy From: fernwithy Date: March 22nd, 2006 11:53 pm (UTC) (Link)
Heh. I love judges. What's the name of the case? I'll have a look.
vytresna From: vytresna Date: March 23rd, 2006 12:06 am (UTC) (Link)
So, wait, what do you mean by "living Constitution," then? I've only ever heard of it as an "anything goes" sort of thing, like, we can totally ignore the Second Amendment now, or, in the Colorado Constitution, saying we could have a government-funded airport because the clause forbidding government-funded transportation was designed to target railroads. (The Republicans are pretty well doing this with the Fourth and Fifth, incidentally, even if they're not using the term.)
fernwithy From: fernwithy Date: March 23rd, 2006 12:28 am (UTC) (Link)
Generally, I would mean that the Constitution is able to grow and adjust to new circumstances--the amendment process, the precedential rulings, and so on. One such new circumstance might be possession of weapons of mass destruction. Those didn't exist at the time, and it's necessary to decide whether or not they are covered by the right to bear arms. And is registration of firearms and infringement? What about the "well-regulated" clause? It's able to respond to changes in the world--including changes in public mindset--and that's what gives it its longevity.
From: (Anonymous) Date: March 23rd, 2006 05:13 am (UTC) (Link)
On the issue of abortion, I'm conservative on that issue but I also believe that, if it had been left to the people, abortion would be legal in all states (although perhaps to varying degrees). However, it would have been established by the majority of the people and the issue wouldn't be the fire point it has become because people would recognize that they had the power to change or keep the laws rather than a small handful of men having forced the decision on them.

There's also the Dredd Scott case. The court, in that case, may well have thought it was acting for the best interests of the nation, taking a controversial issue that had festered for years and laying down solid, inarguable rules. The fact was that they were rules a number of people disagreed with. Thousands of people who may never have bothered about slavery in other states suddenly became impassioned when they were told their states would be forced to support it and send back escaped slaves. Others, who may not have cared about the rights of black citizens changed their minds when, instead of equality before the law, the issue became whether or not someone you knew could be dragged away in chains.

Whether it's a virtue or a vice, Americans have never responded well to being ruled by fiat.

fernwithy From: fernwithy Date: March 23rd, 2006 06:14 am (UTC) (Link)
I don't know how it would sort out with abortion--I haven't looked into public opinion (largely because I'm possibly the only person I know who doesn't have really strong feelings about the issue itself).

The slavery issue was a break-point for the country, built in from the beginning, and something, sooner or later, was going to set it off. The Scott case was a fair use of the courts--the interpretation of law based on a specific case and American precedent and tradition--but the populace had evolved enough that it had become intolerable.

Civil war is the worst of all outcomes, of course. Had people been able to convince and persuade, it would have been a lot better. In the objective sense. Of course, I believe in a metaphysical sense that it was our own original sin and circumstances came the way they did because we owed a blood debt for ever allowing it in the first place, and it wouldn't have been paid if we'd just peacefully let it go, but on the non-metaphysical plane, a lot of lives could have been saved if the abolitionists had been more persuasive and the slaveowners less stubborn.
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