“I solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and I will faithfully discharge the duties of the office of which I am about to enter, so help me God.”
This is the judicial oath that justices of the United States Supreme Court take to uphold America's Constitution – the sacred manuscript upon which our nation was established. Yet, some of the same justices who preside over the highest court in our land are systematically unraveling the threads of the very Constitution they vowed to protect. Four of the nine Supreme Court justices - Justices Anthony Kennedy, Stephen Breyer, Ruth Ginsburg, and David Souter - continue to flirt with the temptations of foreign court decisions and the opinions of international organizations in the interpretation of America's laws (as did Sandra Day O'Connor before stepping down). Has the Supreme Court lost its way?
By what legal authority do justices of our Supreme Court use foreign world tribunals, global norms, and the philosophy of European elites in making decisions that affect the citizens of the United States? Why do they selectively cite some foreign court decisions such as those from the European Union, the International Court, England, Jamaica, or even the “bastion of humanity” – Zimbabwe – where an authoritarian government oppresses political challengers, civil rights activists, and jails representatives of the media? Are our Supreme Court justices (who are supposed to set the example for all judges) citing foreign courts arbitrarily… only opinions that are harmonious with their own social agendas? What if lower courts began following the High Court’s lead and started for instance… instituting corporal punishments like caning as a penalty for vandalism simply because statutes in Singapore or Malaysia dictate as much? What if a judge suddenly decided that – in keeping with some foreign law – we should begin cutting off the hands of common thieves? That dog just wouldn’t hunt here in America. Why? Because it would be contrary to the U.S. Constitution.
Artificially engineering rulings – as our Supreme Court justices are doing when they selectively cite foreign court opinions – undermines the predictability, consistency, and uniformity of justice. How do these jurists determine which foreign decisions they will embrace and which they will reject? Why have they discriminated and not used the decisions of our neighbors in say… South and Central America or even Mexico? I have personally witnessed trials in Russia and China. Why not use those courts’ decisions in shaping American Jurisprudence? Who exactly decides what will be used to decide? This trend is symptomatic of judicial chaos… pure judicial anarchy.
The Framers of our Constitution made clear their vision for the federal judiciary. Named in Article III behind both of the other branches, the Founders intended a court system with a narrow scope and restricted authority. As Alexander Hamilton explained in his Federalist Papers, “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.” He envisioned that the judicial branch would “have neither FORCE nor WILL, but merely judgment.” Mr. Hamilton was wrong. History reveals that the Supreme Court has become the most powerful branch of government and the citizenry – who ordains the Constitution – cannot hold justices accountable for their actions.
As a former felony court judge in Houston, Texas for over 20 years, I used the Constitution and made decisions that affected real people – defendants, victims, and the community. I took the same oath as our Supreme Court justices and never rendered a ruling based upon the sentiments of another nation. I determined whether individuals should lose their property, liberty, and freedom. On occasion, my decisions even resulted in those individuals forfeiting their lives. Nonetheless, every ruling was rooted in the United States Constitution, which those who came to my court unquestionably knew constitutes the basis of all American law... not the judge’s personal opinion or the holdings of a foreign nation; not the British way or the European way; but rather the American way. Had I used any other law but that of the Constitution, I would have been removed from the bench and rightfully so.
Having been down in the mud, blood, and beer with real people, I have witnessed the Constitution’s impact on the lives of Americans. I submit that looking to foreign court decisions is as relevant as using the writings of Reader’s Digest, a Sears and Roebuck catalog, a horoscope, my grandmother’s recipe for the common cold, tea leaves, star gazing, or the local gossip at the barbershop in Cut N’ Shoot, Texas.