Fresh off of packing the Supreme Court with two justices from the orbit of the Federalist Society, the right wing fundamentalists, believing they are on a roll, are on to their next campaign. Their goal: purging references to foreign law from judicial opinions. The animating idea is to extend our go it alone foreign policy into the realm of the Supreme Court and see if we can make even bigger asses of ourselves.
Last month, Justice Ruth Bader Ginsburg gave a speech in South Africa that defended the use of international law, not as determinative, but as a view to be considered. "The U.S. judicial system will be the poorer," Justice Ginsburg argued, ". . . if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own."
The speech, which drew its theme from the reference in the Declaration of Independence to "a Decent Respect for the Opinions of Mankind (rather unfortunately converted by Justice Ginsburg into "[Human]kind"), discussed several references to international law, or at least international opinion. These include the amicus brief filed by the United States Attorney General in Brown v. Board of Education, and the recent Supreme Court opinions banning the execution of the mentally retarded or minors and ruling the Texas law against sodomy to be unconstitutional. (This sodomy case really gets to the values/prudery branch of the wingers.)
Justice Ginsburg also pointed out that ignoring world views has proven costly in the past. Chief Justice Roger Taney, in the Dred Scott decision, aptly described by Justice Ginsburg as "an infamous opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage, eschewed foreign opinion or intellectual growth.:
No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U.S.
Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.
The speech received some MSM coverage over the weekend as an example of the new public outreach of Supreme Court Justices. Last month, Justice Scalia gave a speech to a Federalist Society gathering in which he called those who espouse a living or evolving Constitution idiots. Justice Ginsburg also joined with former Justice O'Connor in blaming recent death threats (actually one death threat on a web site, as far as I can tell) on the tone of right wing political criticism, a questionable political point, given the First Amendment and all, but reasonable as a plea for civility.
However, it is the idea of even listening to others in the world that drives the Federalist Taliban nuts. Paul Mirengoff, that same conciliatory fellow that was on Washington Journal yesterday, says "[I] It won't happen, of course, but I think there's a case to be made for impeaching Justice Ginsburg." Other wingers agree. Justice Ginsburg discusses that 83 members of Congress are co-sponsors of a bill that declares that ""judicial interpretations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such [materials] inform an understanding of the original meaning of the Constitution." Other bills proposed last year actually purport to prohibit the use of "other than English constitutional and common law up to the time of the adoption of the [U.S.] Constitution." Hopefully John Marshall counts as a Founding Father and the Court will decide for itself what precedent to use.
On its merits, the red white and blue fundamentalists insist that the U.S. Constitution means what it says, or rather what it said in the Eighteenth Century. They cannot accept that the courts should inject any thoughts from the last two and one half centuries, let alone from foreigners, to protect those who lack advantages or numbers from being forced to accept the will of the steak eating majority. This is democracy, I suppose, but not the system I had always understood us to live under.
Can't these folks find some Buddha statues to blow up, or something?
(Reference to self proclaimed originalists as fundamentalists from Professor Cass Sunstein. Excellent discussion of Justice Scalia's 'idiot" speech here by Nan Aron. Ironically, Scalia's speech and Aron's analysis were lost in the kafuffle over Cheney shooting another hunting pal.)