the Supreme Law of the Land?
a rare television interview on ABCs Sunday morning public
affairs show "This Week," Supreme Court Justice Stephen
Breyer commented in July that "[t]hrough commerce, through
globalization, through the spread of democratic institutions, through
immigration to America, it's becoming more and more one world of
many different kinds of people. And how they're going to live together
across the world will be the challenge, and whether our Constitution
and how it fits into the governing documents of other nations, I
think will be a challenge for the next generations."
out whether the U.S. Constitution "fits into the governing
documents of other nations" is a challenge of the next generation?
James Madison must be turning over in his grave.
may be, in fact, correct that we are becoming "more and more
one world of many different kinds of people," and it may also
be true that deciding "how [were] going to live together"
is a challenge facing the next generation. That is plausible, but
the job of figuring out how were all going to live together
is not one to be made by nine unelected, and hence unaccountable,
lawyers with life tenure. It is the job of the political branches,
the President and the Congress, both of which are elected by the
people and remain directly accountable to them day-to-day and election-to-election.
question of "whether [and how] our Constitution fits into the
governing documents of other nations" is both irrelevant and
disturbing. Why should this generation or any other care whether
our founding and most fundamental governing document, the longest
operating of its kind, is in complete harmony with the litany of
laws and resolutions passed by the likes of the European Union and
the United Nations? The United States like any independent
nation, including the member states of the UN or EU retains
its sovereignty, which means that if the President and the Congress
wish to agree to treaties or conform U.S. law to those abroad, they
are free to do so under the Constitution. But just like state and
federal laws, any treaty or legal change that conflicts with the
U.S. Constitution is overridden by it.
this new balance-of-powers theory balancing away what
the Constitution says for what other countries
say into practice, several Justices have increasingly looked
beyond our borders to decide what our domestic law means. Two of
the most controversial decisions of the U.S. Supreme Courts
past term serve as examples.
the recent case invalidating Texas sodomy law, Lawrence
v. Texas, Justice Anthony Kennedy referenced both the European
Court of Human Rights and the British Parliament in his majority
Kennedy wrote that the reasoning in Bowers v. Hardwick, an
earlier case upholding Georgias sodomy law, had been "rejected
by the European Court of Human Rights." He also referred to
the "Report of the Committee on Homosexual Offenses and Prostitution,"
a committee which had recommended the repeal of sodomy laws to the
British Parliament in 1957. Justice Kennedys references were
meant to rebuff Chief Justice Warren Burgers references to
historical international precedent in his concurrence to Bowers
v. Hardwick, in which Burger cited ancient Roman law, courts
during the English Reformation and Sir William Blackstone in support
of outlawing homosexual acts. The international citations in both
cases were cherry-picked from international opinion, which is both
irrelevant to text and meaning of the Constitution and a perverting
force in its interpretation.
this years landmark affirmative action case, Grutter v.
Bollinger, Justice Ruth Bader Ginsberg filed a concurring opinion
which referenced international law as supporting and consistent
with the majoritys decision to allow racial preferences in
admissions to institutions of higher education. Justice Ginsburgs
opinion opened with the statement, "The Court's observation that
race-conscious programs 'must have a logical end point,' accords
with the international understanding of the office of affirmative
action." Likewise, the University of Minnesota Human Rights Center
filed an amicus curiae brief in support of race-based admissions,
arguing that foreign "treaties are helpful for interpreting
United States standards."
if we are willing to cede the quasi-comprehensible argument that
"treaties are helpful for interpreting United States standards,"
it remains unseen how this is the province of the judiciary. The
task of the judiciary is to interpret Americas duly enacted
laws, not to conform them with those enacted by foreign nations
unaccountable to and unrepresentative of the American citizenry.
question of why Americans would want their constitutional heritage
altered by the lack thereof in the rest of the world remains unanswered.
Is it proper to attempt to reconcile Saudi Arabias complete
lack of womens rights with our Fourteenth Amendment? Does
the land-grabbing dictatorial kleptocracy of Zimbabwe have something
to teach us about the proper understanding of the Takings Clause
in the Fifth Amendment? Of course not, because for the moment those
justices prone to look beyond our shores for constitutional guidance
only acknowledge the parts of the globe where current legal precedent
"fits with" these justices own Eurocrats
that prefer a centralized, economically liberal system of governance.
is no question that the road to globalization will be a bumpy one,
and indeed will probably be the central task of this and the next
generation. But the thought of our nation and its Constitution being
steered down the bumpy road of globalization by Justice Breyer &
Co. is a frightening one. Surely, the American people should have
more to say about rewriting the Constitution than those who dont
even live under its grand design.
J. Armstrong is a law student at the Catholic University of America
Columbus School of Law and is interning at the Center for Individual
Freedom this fall.
October 15, 2003]
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