Stuart Taylor has a fascinating article discussing the the creep of foreign law into the interpretation of our Constitution. He discusses a number of examples, but of particular interest to me was Justice Ginsburg’s concurrence in Grutter.
Joined by Justice Stephen Breyer, Ginsburg began by noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allows the theoretically temporary “maintenance of unequal or separate rights for different racial groups”—a regime that Ginsburg suggested should continue for decades. Then she cited analogous provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, which—Ginsburg noted in a speech a few weeks later—”sadly, the United States has not ratified.”
If an international agreement that the United States has refused to ratify can be invoked as a guide to the meaning of the 136-year-old 14th Amendment, what will be next? Constitutional interpretation based on the sayings of Chairman Mao? Or Barbra Streisand?
Of course Constitutional law can be exported as well as imported. As Taylor notes,
Ginsburg suggested in the same speech that she wants to apply the Bill of Rights extraterritorially and enforce the “rights of any human being,” anywhere in the world, in cases involving the U.S. government. She did not say whether she would carry this to the point of ordering U.S. forces overseas to give Miranda warnings to the likes of Khalid Shaikh Mohammed, the suspected mastermind of the 9/11 attacks, who was captured in Pakistan last March.
I can see a good humorous movie line out of that one; fit for a Stallone or Schwarzennegger.
“Mr. bin Laden, according to recent Constitutional interpretation by Justice Ginsburg, you have the right to remain silent … (sound of multiple rounds being fired, barrel flashes) … forever.”
O’Connor said late last year at a talk in Georgia(?) that she can see where in the future the USSC will be relying on “International Law” to decide some cases.
ARGHHHHHHHHHHHHHHHHHHHHHHHHHHHHH!
That woman is an embarrassment and I’m sorry she was ever appointed.
And the WSJ & Chicago Trib had an ed on that Racism Treaty about 1-1/2 years ago, that’s the final reason why I dropped Pravda-by-the-Lake.
If I hadn’t read the WSJ first, I never would have known the Saudis signed it w/enough loopholes to drive the Enterprise through w/o touching the sides for millions of miles.
The Trib was for it because the Pakis and Saudis signed it.
Frightening isn’t it when the Supreme Court justices don’t seem to understand that they are suppose to base their decisions on the constitution of the UNITED STATES. We may have checks and balances, but the courts have the final determination of the constitutionality of a law. Unfortunately, it is true that “Power tends to corrupt, and absolute power corrupts absolutely”. More and more we see manifestations of judicial tyranny, especially by the Ninth Circuit Court. And of course the Michigan affirmative action decision that legalizes discrimination against whites (but only for the next 25 years, right?!!) is a perfect example of the Court’s disregard for the Constitution of the US.