Sean King

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Knoxville, Tennessee, United States

Sunday, April 12, 2009

On The Issue of Foreign Law

“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.

The court’s more conservative members — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas — oppose the citation of foreign law in constitutional cases.

“If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge,” Chief Justice Roberts said at his confirmation hearing. “And yet he’s playing a role in shaping the law that binds the people in this country.”

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.



Well, Justice Ginsburg, when it comes to interpreting the Constitution, which is the primary job of the Supreme Court of the United States, I fail to see how present-day rulings of a foreign jurisdiction should have much relevance (unless, of course, your intent is not to rule based on what the Constitution actually says, and what our founders meant when they wrote it, but rather based upon what you, and whatever foreign judges you favor, think it should say).

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