March 16, 2006

A roving charter of tyranny...

This is a part of John Hinderaker's post on Justice Ginsburg's speech in South Africa. You ought to read the whole post...

....Ginsburg contrasted our Constitution (unfavorably, I think it's fair to say) with the Constitution of South Africa, which specifically provides for the use of foreign law in interpreting its provisions.

You really should read the entire speech, but its argument is most concisely stated here:
To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed."
This is, to put it politely, nonsense. In our system of government, the courts are not called on to determine what "basic fairness governing relationships between the governors and the governed" requires. For legal purposes, issues of "basic fairness" were decided when the Constitution was authored and approved by the initial thirteen states, and when the document has been amended over the subsequent centuries.

The real issue here is: what is the Constitution? Justice Scalia has famously noted that the Constitution is a legal document which, like all legal documents, says some things and does not say others. In Justice Ginsburg's view the Constitution is, on the contrary, a roving charter for nine individuals to decide what "basic fairness" requires. It should hardly be necessary to point out that the former understanding, which was universal until quite recently, is a charter of freedom, inasmuch as the people's representatives can vote on amendments. Conversely, the "basic fairness" approach is a form of tyranny in which a small elite can impose its policy preferences on the rest of us....

You can easily see how phony this all is, by imagining what Justice Ginsburg would say if conservative judicial decisions were based on foreign law. Say, decisions restricting abortion. She'd say, "That's not fair! You can't DO that!"

Posted by John Weidner at March 16, 2006 7:36 AM
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