It's shocking, quite frankly, when an editorial published by the Washington Post tackles a constitutional issue more judiciously than a sitting Justice of the Supreme Court of the United States.  But that was the surprise sprung by the Post last week in an editorial that took dead aim at Justice Ruth Bader Ginsburg and a speech she gave concerning her view that American judges should use foreign law to interpret our U.S. Constitution.

Last month, Justice Ginsburg gave a speech at the Constitutional Court of South Africa in which she urged that American judges "refer to foreign and international court decisions" because, using the words of a former judicial colleague, they demonstrate the "'common denominators of basic fairness governing relationships between the governors and the governed.'"  Specifically, Justice Ginsburg said the United States needs to "learn from others including Canada, South Africa," and elsewhere "in measuring ordinary laws and executive actions against charters securing basic rights."  Thus, Justice Ginsburg concluded -- rewriting the Declaration of Independence in the process -- that the U.S. Supreme Court, and all American judges, should "accord 'a decent Respect to the Opinions of [Human]kind'" by looking to other countries when interpreting the "supreme Law of [our] Land."

That was the high road taken in Justice Ginsburg's speech.  As the Post rightly pointed out, the low road taken by Justice Ginsburg was much more troubling.  As stated in the Post, that low road was that Justice Ginsburg "managed to link those who take an opposing view to the legacies of slavery and apartheid," even taking the opportunity to accuse her opposition of "fuel[ing] the irrational fringe."  Indeed, it was only a few paragraphs into Justice Ginsburg's nine-page, single-spaced speech before she quoted Chief Justice Roger Taney, from his infamous Dred Scott decision, which upheld the rights of a slave owner over his slave, as an example of a judge who "expressed opposition" to using foreign law in American judicial decision-making.

The insinuation was perfectly clear.  There could be no legitimate disagreement with Justice Ginsburg's viewpoint.  Such an attack was all the more appalling given the fact that Justice Ginsburg's own colleague and friend on the High Court, Justice Antonin Scalia, has been the most visible leader of the intellectual and judicial opposition to internationalizing American law.

Displaying judiciousness so uncommon on editorial pages these days, the Post observed that "Justice Antonin Scalia offers some reasonable criticisms of how the court has used foreign precedents -- that is, selectively, when foreign law supports results that the court cannot justify based on American authorities alone."  In fact, the Post was blunt in taking on Justice Ginsburg for "stooping to ... insinuations," publishing in black-and-white what she so obviously already knew but didn't say.  As the Post's editorial concluded, "one doesn't need to be Chief Justice Taney -- or a South African racist or an aspiring domestic terrorist -- to believe that it would be better if courts did not interpret America's founding documents in light of foreign authorities."

If the debate had been fair, both the Post and Justice Ginsburg would have gone even further than that.  Both should have pondered the fundamental conflict between an American government "that derive[es its] just powers from the consent of the governed and the imposition of laws made not by "We the People," as the Constitution says, but by foreigners who do not, cannot vote in our elections or represent us in our political branches.  Not to mention, of course, that the only way those foreign laws can be imposed is through unelected judges who are also wholly unaccountable to "We the People."  The Post's editorial page has no such obligation to be "fair and balanced," but surely the American public can expect a bit more judiciousness from Justice Ginsburg who sits on our highest court.