There are many reasons why we condemn the use of external law when interpreting the Constitution. John Yoo, law professor at the University of California-Berkeley and visiting scholar at the American Enterprise Institute, writes in a Law Review article: “If foreign decisions were to become, in close cases, outcome determinative, or even were to trigger some type of defense, then they would effectively transfer federal authority outside the control of national government. The Supreme Court is in danger of setting its own social and moral agenda, ignoring the will of the American people.” (Footnote #11)
U.S. Supreme Court Justice Antonin Scalia did not agree with the Lawrence case ruling. In writing his dissent, Justice Scalia wrote, “This Court . . . should not impose foreign moods, fads, or fashions, on Americans.” (Footnote #12) I don’t know about you, but I am incensed that the U.S. Supreme Court would ignore the original intent of the Founders, substitute some of their own intent, and then employ foreign law to justify a ruling based on their own political agenda.
Unfortunately, this is not the first time Supreme Court judges have looked outside the U.S. to find a basis for their rulings—which means there is precedent for the practice, something judges can use to their advantage. Supreme Court Justice Sandra Day O’Connor notes, “I suspect that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues.” (Footnote #13)
In a shocking decision in early 2005, the Court struck down a state law that had allowed a murderer under the age of eighteen to be executed for his or her crimes. This effectively banned such use of capital punishment in nineteen states. But in doing so, the judges have sentenced our Constitution to a slow death by citing foreign law as reason for the decision. In the majority opinion, Justice Kennedy wrote, “Our determination that the death penalty is disproportionate punishment for offenders under eighteen finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” (Footnote #14)
Justice Kennedy also suggested that citing foreign law is an increasing trend in American jurisprudence, that the high court will more and more refer “to the laws of other countries and to international authorities as instructive for its interpretation” of the U.S. Constitution! (Footnote #15)
To address this problem, some members of Congress are working on legislation to guarantee such an unconstitutional process does not continue. U.S. Representative Tom Feeney of Florida and U.S. Representative Robert W. Goodlatte of Virginia were successful in getting the House Subcommittee on the Constitution to approve the “Reaffirmation of American Independence Resolution.” According to Representative Feeney, the purpose of this legislation “is a salute to the framers of the Constitution and a victory for those dedicated to the protection of American sovereignty. This resolution reminds the Supreme Court that their role is interpreting U.S. law, not importing foreign law.” (Footnote #16)
In Article VI, the U.S. Constitution states that the Constitution is the Supreme Law of the land. So, for court justices to look outside the U.S. to base their rulings is clearly unconstitutional. “Yet lawmakers point out that at least five justices, in order to justify their decisions, have written or joined opinions citing foreign courts from Jamaica and India to Zimbabwe and the European Union.” (Footnote #17)
What would the Founders say about the U.S. Supreme Court looking to foreign nations to interpret American law?
President Thomas Jefferson said, “The comparisons of our governments with those of Europe are like a comparison of heaven and hell.”
Jefferson was very concerned, as were many other Founders, about the tyranny to which the judicial branch could subject America. In 1820, he expressed his apprehensions in a letter to William Charles Jarvis: “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarch [rule by a few]. . . . The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.” (Footnote #18)
If there were ever a time the U.S. Congress is justified in impeaching Supreme Court justices, the ruling in Lawrence vs. Texas has provided the occasion. But I fear it won’t happen because of the preference by many in Congress for moral relativism. Meanwhile, I believe the cultural elites laugh behind conservative backs over how easy it is to accomplish their goals, and harvest more and more control over every aspect of American life via the judicial branch of our government.
11 “Danger from Foreign Precedent,” editorial, The Washington Times, March 25, 2004.
13 Ibid., quoting Sandra Day O’Connor.
14 Gary Bauer, e-mail to “Friends and Supporters” of Campaign for Working Families, March 1, 2005.
16 Washington Times, May 17, 2004, A07.
18 letter by Thomas Jefferson to William Charles Jarvis.