Foreign Law Fever: Catch It!

Damn, this was a hell of an email. RCL just put me some f'n' knowlege in a big way, dropping hot links like rappers name-check fast-food joints.

I just formatted it and added a little here and there. The rest is his.

The Passion of Justice Ginsberg

..."[U.S. Supreme Court Justice] Ruth Bader Ginsberg gave a speech defending the Supreme Court's use of foreign law in interpreting the U.S. Constitution," National Review notes in an editorial...

-- from the Washington Times.

By all means, let's bow to the superior wisdom of Mrs. Ginsberg and look abroad for constitutional guidance. What could it hurt? Well, let's check the record.

...A 42-year-old German man who confessed to killing, dismembering and eating another man who he said agreed to the grisly act was sentenced to eight and a half years in prison...

A German court convicted Armin Meiwes of manslaughter on Friday, ruling he had no "base motives" in the crime and sparing him a murder conviction...

They said he filmed himself dismembering the victim before he ate him so he could "admire himself as a human butcher."

... But Meiwes' lawyer argued that the slaying was a "homicide on demand." He said it was a form of mercy killing – because the victim gave his consent to be killed and eaten...

Brandes had travelled from Berlin in reply to an internet advertisement seeking a young man for "slaughter and consumption."

... "For him, it was a nice death."

-- cite

...Cuba has added new repressive laws and continued prosecuting nonviolent dissidents while shrugging off international appeals for reform...

cite

...Ahmad Turki al-Saab and two other Shiite Isma'ilis were arrested after talking with a Wall Street Journal reporter about the April 2000 confrontation between Saudi Arabian security forces and members of the Shiite Isma'ili community in Najran province. All three remain in prison...

cite

RCL opines:

What's troubling is that judges and the judiciary will be the sole arbiters of which foreign laws will impact American jurisprudence. The people, who through their legislators are responsible for making American laws, will have no say in which foreign laws are employed. There is no mechanism for any legislative control of which foreign laws are used.

If I understand this correctly, in essence, there will be two sets of laws. One will contain laws created by domestic legislation. The second will be foreign laws, of which the domestic legislative branch will have no part of creating. For all intents and purposes, they are introduced into our legal system ex nihilo.

The judiciary has sole proprietorship over the foreign set. The relationship between the two sets will be one-way, the foreign laws impacting the domestic as deemed appropriate by the judiciary.

If I was a lawyer or constitutional scholar, as opposed to my current incarnation as a mouth-breathing redstater, I think that this arrangement might disturb me.

...

Slice like an f'n' hammer, RCL. Like a Viking.

And that's the point. There are foreign laws that say just about anything you might want, from the ludicrously lenient to the draconian-deadly. The judiciary has awarded itself the power to make up American law wholesale -- a privilege, of course, restricted by the Constitution to persons called "legislators" -- through this back-door judicial importation of "foreign law."

The foreign laws they prefer, of course.

American legislators could borrow from foreign law if they liked as well. In fact, they often do. But the liberal activists of the judiciary have now created a new basis for flat-out judicial lawmaking, in express contravention of the Constitution they are charged with interpreting. Any time they don't like a domestic law, they can import a foreign law they prefer -- claiming, rather unpersuasively, that such a law now represents "global legal norms" or some such nonsense -- and replace the American law as they like.

It's not really anything they haven't been doing for at least fifty years in earnest. But the fact that they are now arguing for a new basis for doing so seems to indicate they intend to do so a lot more.

And they have even less to restrict them by using this new basis. Previously, the courts have been required to claim that watershed decisions -- decisions overturning fifty or a hundred years of jurisprudence -- were somehow dictated by the "precedents" that came before, that somehow what the law had been now required the exact opposite. Or that a "national consensus" had emerged. Or that something in the actual Constitution somewhere contained a secret "emanation" requiring a result.

But there are almost no such limiting factors as regards foreign law. There are hundreds of differing statutes and procedures for every point of law all over the world. And the judiciary now merely needs to select a group of countries they deem sufficiently evolved, claim this small group of countries now represent the "prevailing foreign law" that now informs the 200+ year old American Constitution, and impose whatever foreign system they like.

Who died and made them Kings, I wonder? Apparently George III.

posted by Ace at 01:36 AM

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