THE SUPREME COURT'S USE OF FOREIGN LAW:
Old Poison In Old Bottles

About a year ago the Supreme Court’s 5-4 decision in Roper v. Simmons set off a firestorm of criticism—not so much because it held that the Eighth and Fourteenth Amendments forbid execution of criminals who were under 18 years old when they killed—but because of the majority’s reliance on foreign law.

Written by fellow-traveling liberal Justice Kennedy, joined by the card-carrying liberal Justices Stevens, Souter, Ginsburg, and Breyer (and by Justice O’Connor, who dissented from the dissenters), the six signed on to the explicit proposition that foreign law could inform interpretation of the Constitution of the United States. Kennedy cited, for example, the views of "civilized nations," "the world community," "leading members of the Western European community," "India," "a number of . . . Commonwealth countries," "60 major nations in the world," a U.N. Convention on the Rights of the Child that the United States had pointedly refused to join, "friend-of-the-court" briefs filed by the European Union, the Human Rights Committee of the Bar of England and Wales, and other equally non-American sources.

Much criticism can, and should, be leveled at this utterly pedantic, pompous, and presumptuous exercise by the Court’s near-liberal and liberal elite—and Justice Scalia’s dissent went a long way in that direction, as has post-Roper commentary from leading conservatives. Unfortunately, however, nearly all of the criticism has failed to realize that the use of foreign law to rationalize government conduct began in earnest as long ago as the early 1900s.

In the 1918 Selective Draft Law Cases the Supreme Court upheld the constitutionality of the World War I draft act. In doing so, the Court relied on "the practical illustration afforded by the almost universal legislation to that effect now in force." What other countries drafted their citizens? Among the thirty-three cited by the Court, were Argentina, Austria-Hungary, Brazil, Bulgaria, Bolivia, Columbia, Chile, China, Ecuador, Guatemala, Honduras, Italy, Japan, Mexico, Montenegro, Nicaragua, Peru, Roumania, Russia, Serbia, Siam, Salvador, and Turkey—from monarchies to dictatorships, from banana republics to primitive backwashes, from brutal oriental despotisms to disjointed feudal kingdoms.

Oh, yes, also on the Supreme Court’s list as additional support for its ruling that conscription in the United States was constitutional was Germany, the very country with which we were then at war.

Notably absent from the Court’s list was a constitutional republic, where the government derived its "just powers" from "the consent of the governed."

And that is exactly the problem with the Supreme Court’s decision in Roper v. Simmons in particular, and with the Court’s reliance on foreign law in general, going back to the Selective Draft Law Cases (and even earlier): the Court’s use of foreign law to interpret the Constitution of the United States takes the liberals’ "Living Constitution," which they contend must be interpreted in accordance with their notions of "standards of decency of an emerging society," a giant step further.

No longer is it sufficient, they claim, merely to canvass domestic sociologists and the American Medical Association to determine whether we have "evolved" to the stage where it is unconstitutional to execute killers under 18.

Now, in interpreting the Constitution of 1787, the Bill of Rights of 1791, and the Fourteenth Amendment of 1868, our jurists deem themselves entitled, if not obliged, to consult laws promulgated by the likes of the Sultan of Brunei, the warlords of Somalia, the Communists of Vietnam, the lunatics of North Korea, and the genocide-ists of Sudan. Apparently, America’s common law tradition, rooted in our ancestral legal home of England, and our constitutional heritage, developed for over two hundred years in the courts of the United States, is somehow inadequate to the task of interpreting our own organic documents.

Unless the Supreme Court is stopped in its tracks, its pernicious notion of a "Living Constitution" embracing values and principles foreign to our nature, values, and constitutional principles, will one day inform us that Paraguayan law requires that pedophiles have a constitutional right to teach in our kindergartens.