Strengthening Constitutional Self-Government

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Justice Ginsburg speaks

Power Line’s John Hinderaker criticizes Justice Ruth Bader Ginsburg’s extended defense of considering foreign judicial decisions, as do Mark Levin and Ed Whelan, who notes that he criticized much the same speech more than a year ago.

My own analysis of Justice Breyer’s similar line of argument is here. Stated simply, the Breyer-Ginsburg line of argument is judge-made "living constitutional law" hiding behind a selective appropriation of what one might call the law of nations. Ginsburg clearly doesn’t understand--or at least doesn’t want to understand--why the Founders and political leaders in the early republic cared about international public opinion. We were to be a light unto nations, inspiring others to adopt our example. This was not submission to international public opinion, but an attempt to lead it. And while I’d have less trouble with the Ginsburg-Breyer position if it adhered in a disciplined manner to a traditional understanding of natural law, it of course doesn’t, following rather an evolving elite transnational consensus unmoored in anything other than the intuitions of those who participate in it. If I wanted to be ruled by the intellectual descendants of John Rawls and Ronald Dworkin, I’d vote them into office.

Discussions - 14 Comments

Joe, you are right on target here. This is an shameless power grab that used ’respect for international sensibilities’ to impose on the American people what can’t be imposed at the ballot box. Ruth has forgotten, however, than respect much be isn’t something that can be demanded.

Darth Bader Ginsburg is a disgrace to the bench. If we are serious about preserving self-government, we need to start talking seriously about impeaching any justice or judge who talks this way about foreign sources.
Bush’s vague mumblings about "interpreting, not making" the law need to be made much more clear by those who are capable of such clarity.

A Columbia Law graduate... former professor at the same institution... sitting Justice of the Supreme Court of the United States... uh, I think she probably understands her own views and the views of those who disagree with her just fine. She goes to the opera regularly with Justice Scalia, for heavens sake! The two are apparently good friends in spite of their divergent approaches to the law.

Perhaps we might concede the fact that intelligent people view things differently. Don’t get me wrong: I am not a particular fan of Justice Ginsburg’s theory of Constitutional law (I am more partial to the libertarian federalism of Justice Kennedy, his vote in Kelo not withstanding). But people who have not accomplished the half of what she has have no right to disrespect her like this. Disagree by all means. Write essays, refute arguments. But please, show a little respect for her honor’s rank and accomplishments. She has most certainly earned it.

And remember: for better or worse, the American people voted Bill Clinton into office knowing full well that he would appoint liberal judges. We should be no more shocked and angered by the liberalism of Clinton’s appointees than the left should be shocked and angered at the conservatism of Bush’s. Indeed, Justices Breyer and Ginsburg are quite moderate compared to the late Justice Thurgood Marshall and many of the people Clinton could have appointed. Imagine "Justice" Lawrence Tribe, if you dare.

Justices do not come from some mating ritual between Dworkin and Rawls (or Bickel and Bork); they are appointed by the Presidents that the American people elect. Make a campaign issue out of this, and if the people agree they will choose Presidents who will appoint conservative judges. But do maintain your dignity while doing it.

I would have thought Scalia’s dissent in Roper would have shamed other justices from invoking international law as a basis in their opinions. Nevertheless, the Constitution does provide for a place for international law. Article 1, section 8 gives Congress the power to "define and punish Piracies and Felonies committed on the high Seas, and OFFENSES AGAINST THE LAW OF NATIONS." But the ball is in the legislature’s court.

Joe, I have to disagree with your reading of founding history. Your are partially correct that America was to be a "light on the hill" but America also desperately craved international legitimacy. We both know the 18th century was an Aristocratic one, where inferiors (colonies) submitted to superiors (mother countries), and it was inconceivable not to. I imagine it was a time a lot like that of the Peloponnesian war. The Declaration sought international legitimacy for America’s actions in the hopes that some other country would help us. Furthermore, a significant motivating factor for scrapping the Articles was to get England to abide by the Treaty of Paris. England would not because its creditors could not get justice in state courts, a requirement of the Treaty of Paris. The founders saw that America would not make it if it were some rogue nation, and that allowing States to do whatever they wanted would not work out, so the Constitution vested foriegn affairs power in the Federal Government. To say America’s founders were not concerned with how the world perceived America is not correct.

Finally, the Supreme Court has applied "international law" over the years and it has only become contentious in recent years; see The Paquette Habana


Point taken, but those are prudential diplomatic considerations. When they thought about their domestic affairs and legal arrangements, they didn’t look to foreign examples for enlightenment because there really weren’t any comparable regimes. Yes, they read Locke, Montesquieu, and others, folks like Jefferson and Franklin were popular in continental salons, and they took the law of nature and law of nations seriously, but regarded that largely as informing legislative and constitution-making deliberations.

I think a big distinction must be made here: that is, between International Law and Foreign Law.

Under no circumstances should Foreign Law (the laws of other nations) be used in our courts to interpret our laws (especially our Constitution). But International Laws can be, and often are, enforced in our courts via treaties. Also, to the extent that International Law is defined as the "Law of Nations" which is morally binding on any nation, it should be enforced in our courts (in the common law sort of way).


You’re correct, for the reason that Steve offers and because of the Article VI supremacy clause.

But here’s a question I would pose: does the authority of international law depend upon or serve as a condition of our sovereign consent? For a brief view of this important issue, see this Q & A with Jeremy Rabkin, who gets it right, I think.


I have no doubt but that Ruth Bader Ginsburg is a smart woman. Do her accomplishments insulate her from criticism by the unworthy likes of me? Or is it that you just don’t like the tone I take, thinking it insufficiently respectful? If the latter, then I say this: with all due respect, I respectfully dissent from the arguments Ruth Bader Ginsburg proffers in the speech. She is clearly a proponent of "the living constitution," which may or may not affect her ability to enjoy opera in the company of Antonin Scalia (I think I’d enjoy a Yanni concert in Scalia’s company). But her notion of how judges and constitutions work, however popular in elite law schools, is not one I share, in large part because I regard it as a prescription, ultimately, for judicial tyranny, surely not intended by those who ratified the Constitution.


I’ll have to read the piece by Rabkin, thanks.

It certain cases I think it does depend on our sovereign consent (the President signs, and the Senate ratifies, a treat; or the President agrees to follow international law through his power as the executive, etc.).

However, I think we conservatives (or at least we conservatives who beleive in "higher law" concepts) ought to be careful with putting a too positivistic spin on international law. Some norms of international law (not just mere custom) are morally binding on nations whether nations choose to recognize them or not. In other words, there are some things we should do, or should not do (torture), regardless of whether or not the U.N. passed a resolution telling us what to do (that doesn’t even qualify as international law!).

Of course, there are more complicated questions concerning what happens when international law mandates domestic enabling laws (Congress must pass them and the President must sign them), but at the same time I think conservatives would do a disservice to the founding principles to assert that international law depends on the presence of a sovereign to be "right." In practice, this would simply mean "Might makes Right" and would be no different from domestic equivalents in the law from the Legal Realists forward.


I agree, to the extent that the law of nations is natural law, not positive law. If Breyer and Ginsburg were proponents of natural law, I’d take their positions more seriously.

The distinction between international law and foreign law is a good one, but Joe’s point about representation in forming international law is also an important consideration.

I think we are best off taking our own council before taking that of others. International institutions are notoriously corrupt, and power politics often is the coin of the realm. I for one am not comfortable with either international or foreign law (and I think millions join me in that discomfort).

As for electing Clinton, I agree. All this talk about the "wisdom of the people" is good for national morale, but let’s face it...most people don’t take the time to understand political issues. They vote their gut (which is often fine...but not always).

I have no quarrel with your comments on Justice G., but would ask in what principled way she is any different from Justice Scalia? He gave a lecture in New England only last night in which he complained that judges can’t be "moralists." For him, ask he points out tirelessly, such issues as gay marriage and abortion are to be decided by "the people," not judges. So while Justice G. thinks foreign opinion should govern the interpretation of our Constitution, Justice S. thinks "majorities" should govern the interpretation of our Constitution. In both cases the justices have surrendered their obligation to secure the Constitution’s basis in eternal principles of natural law, natural rights, justice which the Founders claimed were the only legitimate foundation for good government. So on the deepest level I do not think these two have any important disagreement.

Isn’t the real problem here just that the Justices who support citing foreign law are inconsistent in such citation, that they just cite legal trends that agree with their conclusion? So Ginsburg, et. al. would *never* cite foreign law that puts significant restrictions on abortion or speech or circumscribes civil liberties protections, right? But the only reason why they wouldn’t (it seems to me) is that they don’t fit with their own policy views, right?

QD...excellent point. The problem with allowing either international or foreign law to sway us is this cherry-picking problem. Let’s stick with American jurisprudence.

Actually, there is one type of foreign law that should be interpreted by American courts, that being English law; however, it has to be old English law. Scalia has even said this, most recently at the AEI, in which a bunch of Lyndon LaRoushies heckled the speech.

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