Monday, April 13, 2009

Warning: Law Talk - Constitutional Law

Reading about Justice Ginsburg on Sunday morning in Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa and I wanted to comment. Here is what got me wanting to write:
“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday.

***

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”
What the wingnuts (and I have no other term that covers all the people who attack the Supreme Court for reading foreign law) do not understand is this: the law of the fifty states is foreign to the federal courts. State law can be persuasive or it cannot, but it is never controlling.

If we reject all foreign law, then the entire basis of our law on English common law must be thrown out. That does not get mentioned much but then the critics have got to know something about our legal system to make the argument. Ginsburg could have made the same comment about The Federalist Papers as she made about law professors. Madison, Jay and Hamilton do not control our Supreme Court but can only be persuasive authority.

Does anyone else wonder why the "last best hope of earth" is so ignored in favor of the Canadians?

What the wingnuts need to ask two questions: 1) was the foreign source reasonable and rational, and 2) was the Supreme Court's use reasonable and rational? Of course, one must be reasonable and rational to ask those questions.

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