Ginsburg’s Love Affair With Internationalism
Justice Ruth Bader Ginsburg addressed the America Society of International Law on April Fool’s Day (how coincidental). Not only does she take an off-hand, feminist swipe at the Jefferson’s use of language in the Declaration of Independence, her premise or as she states “her position” doesn’t make a lick of sense–unless you believe the Constitution is not the Supreme Law of the land.
Ginsburg’s “position”:
If U. S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so [sic] we can learn from others now engaged in measuring ordinary laws and executive actions against charters securing basic rights.
Ginsburg appears to argue that if other countries can learn from our system of judicial review (which was imposed by judicial fiat, not the Constitution) then we also can learn from other countries about human rights–not because they interpret our Constitution or statutory law–but because they interpret a radical gaggle of international treaties or charters that seek to protect “human rights.” Ginburg’s method of legal interpretation is frightening because there is no stopping point in looking to the decisions made by other countries and international tribunals. Ginburg could reasonably say (1) Our Constitution protects in its fundamental abstract “human rights” (a penumbral right like the “right to privacy” used to force abortion on America) and (2) International law is applicable to each and every Amendment and Article of the U.S. Constitution. Moreover, there is absolutely no discretionary line at which country, tribunal, or “human rights” charter Ginburg (and her complict collegues on the Supreme Court) could look to in deciding the cases there are constitutionally empowered to decide. Let’s see Justice Ginsburg, shall we look to Iran first or perhaps the gulags of North Korea . . .?
Throughout her speech, Justice Ginsburg disguises the Supreme Court’s reliance on foreign law as mere consultation or an auspicious glance at trends of other nation-states. Granted, you can look at the international stuff all you want, but you can’t use it to substantively support any legal analysis of the Constitution or statutory law. The Constitution is what it is–a body of law by which our nation’s citizens (including the federal government) are to be governed. Anything outside the Constitution or laws passed by Congress (who receives the authority to legislate by the Constitution) is not legally binding upon the American polity.
More Ginsburg:
The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a close kinship to the view of the U. S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U. S. jurists honor the Framers’ intent “to create a more perfect Union,” I believe, if they read our Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.
For those of us who support the Federal Marriage Amendment or an originalist, constitutionally adherent interpretation of the Constitution, we have received our “global” warning. It is true that we are living in the 21st century, but there is nothing global about our Constitution. Our Constitution is for one nation–the United States of America. Neither Justice Ginsburg nor any other Supreme Court Justice should dispose themselves to any other jurisprudential viewpoint or modality of judicial interpretation. Period.