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June 20, 2005

The Unbearable Lightness of Thinking...

I blame Thomas Friedman for this transparent idiocy:

Why all the fuss over a seemingly technical point of law? This debate is driven by outcomes. In each of the recent cases in which invoking foreign law has sparked controversy, the decisions have been progressive or liberal. But a lot of international law is not so progressive. On issues ranging from freedom of speech to abortion, much of the world is far to the right of U.S. law. It will be interesting to see whether conservatives get so upset when cases come along in which international doctrines would help their side.

But at a loftier plane, this is an important debate about the court's role. Conservatives who believe in a limited role for judges say the Supreme Court should stick to its knitting, namely interpreting the U.S. Constitution as written, and should ignore current fads here or abroad. But the counter-argument is strong. If globalization has flattened the world in terms of the economy and culture, isn't it time that our legal system also look beyond our borders? Are we so arrogant that we think we have nothing to learn from judges and lawmakers around the world who have faced the same issues we face?

Indeed. Why all this fuss over a technical point of law? Why get bogged down in mere technicalities like what the law actually says, not what we would like it to say based on the invaluable input of, say... France? Or the fact that "the Court's role" is spelled out in the Constitution, which that same court would now like the freedom to change according to its whims? Checks and balances, anyone? What if the Court suddenly decides, based on foreign law, that it should be superior to the other two branches of government? Ah, cheries...surely we are not so arrogant that we cannot learn from other nations?

The Constitution is the foundation of law for this nation and provides for its own amendment, not by judicial fiat but by the democratic process.

A house built on a constantly-shifting foundation cannot stand. If we are to shift that foundation let it be a deliberate and well-grounded change, supported by our own jurisprudence or resting on the consent of the governed (i.e., those governed here, not in Eritrea, Botswanna, or the pampas of South America).

These are hardly mere 'technicalities'.

Posted by Cassandra at June 20, 2005 09:02 AM

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This is such idiocy. It entirely misses the point. The question is not whether we should look to the law of other cultures to determine if we need to shift our own laws. That is entirely fine. It is what legislatures do. We can pass new laws to reflect new and changing norms.

The issue is whether foreign law has any bearing on the already written word in American law. The Constitution, especially, did not change meaning because of what the legislature did in France last year.

The bigger point here is that Judges are not supposed to be lawmakers. This person is writing this piece with an underlying assumption: that Judges are supposed to weigh the issues of whether it is time to get more enlightened, whether it is time to get hip by foreign standards. That is a legislature's role. Good lord.

And what of these "conservative" foreign laws? The conservative justice isn't going to cite the foreign law at all, though Scalia will rightly make fun of the liberal for ignoring the overwhelming number of foreign states that have laws opposing the liberal viewpoint. The liberal isn't going to cite the many laws of foreign countries that outlaw abortion or don't have environmental legislation. It isn't relavant then, for some reason.

No, this is outcome determinative reasoning by the leftist judge. They have various sources of places to find a result, and ignore those same sources when they don't support the right outcome. The leftist judge lacks sound reasoning, which is why they jump around and have no principals except the political outcome you could predict before the case hit the Court.

Posted by: KJ [TypeKey Profile Page] at June 20, 2005 10:36 AM

Fool of a lawyer...thinking you ignorant American cowboys can hope to equal the wisdom and sophistication of a nation such as France.

Seriously, as the author himself stated,

"This debate is driven by outcomes." Magnifique!

Outcome-based jurisprudence.

Posted by: Bush Ate My Soul... [TypeKey Profile Page] at June 20, 2005 11:28 AM

This is one of those read and re read posts with suitable comments. If I am understanding the issue correctly, Rehnquist is basing his decisions on cases here on international law/precedent, and Scalia and other Rethugs and KKKonservatives want to stick to the Constitution, while liberals want to stick it to the Constitution based on an increasingly higher global presence? The beauty of American law, so called, is that it does preserve and protect freedom(s), not grant rights.

The danger of international law is that governments would take an increasing role in granting priveleges...or am I off the mark again
and have to be sent to the corner?

Posted by: Crckt [TypeKey Profile Page] at June 20, 2005 11:29 AM

IMO, most European governments are more paternalistic, both in the sense of granting privilege and that of restricting rights. For instance, search and seizure laws in much of Europe wouldn't fly here for an instant. They also have a nasty habit of mixing Church and State.

Something to think about.

Posted by: Bush Ate My Soul... [TypeKey Profile Page] at June 20, 2005 11:40 AM

ah. I was right. Thanks BAMS. I like the use of the word paternalistic, as it conjures up the 'noblesse oblige' rather well. I look at it as being more socialist/communist.

The French people did surprise the helk out of me with the trouncing they gave the EU Constitution.

Church and state? Here is one comparison (no offense intended, just an observation) in that the Law as contained in Moses became a whole body of law with how many steps you could walk on the Sabbath to other rituals to the point where the spirit of the law was lost.

The Constitution is basic, simple and does cover every contingency, just as the Ten Commandments do.

So, why does the EU Constitution have over 300 pages?

Back to my corner now...

Posted by: Crckt [TypeKey Profile Page] at June 20, 2005 11:55 AM

I know that much of this Friedman op-ed is laughable, but I'd like to focus on this particular statement from Friedman: On issues ranging from freedom of speech to abortion, much of the world is far to the right of U.S. law.

To the right? Let's see - China doesn't permit anyone the freedom of speech and seeks to limit access to the Internet, which is practically the only outlet that anyone has to express the freedom of speech. Last time I checked, China was a Communist country, which by standard definitions is on the left side of the political spectrum, not the right.

Many of the former Soviet allies in the Middle East similarly limit speech and free exercise of religion, and they follow the Communist/Marxist/Socialist path - those wouldn't be on the right side of the political spectrum, but the left.

In other words, just how is Friedman using the political spectrum as traditionally defined? I'd say he's abusing standard political science definitions to make his point. I could also say that he's lying about the left-right spectrum to make his point. Or, I could say that he has no idea what the political spectrum is and just claims that the world is to the right of the US on these subjects, when that isn't necessarily the case, because the NYT thinks the world isn't too far to the left for their tastes.

As far as trying to find outcome-based jurisprudence, we see this from the Supreme Court all the time. The new wrinkle is that the Court went to great lengths to bring in foreign law to do so in a case where it was unwarranted.

Posted by: lawhawk [TypeKey Profile Page] at June 20, 2005 02:39 PM

As far as trying to find outcome-based jurisprudence, we see this from the Supreme Court all the time...

That is undoubtedly true - I was being snarky there :) I just can't help wishing they would examine the facts, apply the law to the facts, and let that take them where it will unless there's a pretty darned good reason not to.

I don't like to see them stretching the law to fit a predetermined outcome. And when they can't find justification for stretching the law in our own precedent, going OUTSIDE our law to find excuses to make things turn out a given way.

That, IMO, is an improper excercise of judicial power. But then, I'm not a lawyer and it's entirely possible that I don't know what I'm talking about :)

Posted by: Bush Ate My Soul... [TypeKey Profile Page] at June 20, 2005 03:01 PM

Oh thanks very much for harshing my mellow.

Cass, I finally picked up a copy of "The Hitchiker's Guide to the Galaxy."

Ol Janx Spirit comes to mind...I am at the point where Ford is a stowaway in the Vogon vessel.

Don't do any plot spoilers or tell me how to pronunciate the hard words. I wanna work this
puppy out for myself.

Posted by: Crckt [TypeKey Profile Page] at June 20, 2005 05:19 PM

I should have known, I go running around time and space that I am now 37 times older than the universe itself, and me with this terrible pain in all the diodes down my left side, and people still don't appreciate it enough to read about me.

And in all that time I've had just about every part of me replaced. Go ahead, guess which ones are still the originals.

Oh God I'm so depressed.

Posted by: Marvin [TypeKey Profile Page] at June 20, 2005 06:00 PM

Stay away from the doors. You know how much they irritate you.

Posted by: Crckt [TypeKey Profile Page] at June 21, 2005 07:05 PM

Don't remind me of the doors. I've never been around such smug little self-satisfied wretches except for maybe J.Lo's Butt in my life.

Ughhh, don't talk to me about life.

Posted by: Marvin at June 21, 2005 09:12 PM

Hey Cricket,

Send me an email. I may have some HHG stuff you'd be interested in.

Posted by: Masked MenaceĀ© at June 21, 2005 09:19 PM

I'll thank the SCOTUS to stick to the US Constitution, thank you.

Posted by: Old Testament Liberal at June 23, 2005 03:04 AM

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