Certain members of the Supreme Court appear today to be . . . consider[ing] evolving, contemporary legal judgments and policy preferences of other nations. It appears to reflect a view that such foreign legal judgments and policy preferences are somehow relevant in defining the terms and limits of our Constitution.
The legal judgments and preferences of other nations are "somehow relevant" to applying the Constitution because all nations deal with similar human struggles. Americans are not genetically abnormal. Ideas of fairness, justice, and freedom are usually understood to apply universally without respect to geographic location. To suggest otherwise -- that justice or immoral conduct depends upon location or culture -- is to support relativism. I note the irony that conservatives often attack their opponents as relativists and claim Truth is not relative. If truths are not relative, looking to other cultures institutions for guidance should be natural and appropriate.
[T]he growing tendency by some members of the Court to look to precedents from overseas in construing the Constitution has a direct impact on [the Department of Justice's] work.
I believe Gonzales gets the issue wrong on a basic level. He say the Court is looking to overseas cases in construing the Constitution. The Court does not look to foreign cases to construe the Constitution, rather they look to foreign cases as a source of thoughtful decisionmaking, and possibly as helpful in applying the policies outlined in the Constitution. It is important to distinguish between construing the constitution and applying a doctrine based on that construction.
Applying the Constitution requires the application of facts and logic. For example, the Constitution says that no State shall "deny to any person within its jurisdiction the equal protection of the laws." What "equal protection" is depends upon how we factually understand the world around us. At the time of the passage of the Fourteenth Amendment women were widly considered (by men) less intelligent and capable in many ways than men. Laws that restricted women from managing property or becoming members of the bar might not be unconstitutional under this archic belief system because treating women differently would be completely rational and appropriate. However, this view was incorrect. Knowing what we do today, discriminating based upon gender in these ways is abhorrent. The Constitution did not change, but our application of the Constitution changed depending upon the facts as we know them.
Foreign case law can assist in applying the basic principals of the constitution because other courts have faced similar problems in deciding what fundamental right human beings have; similar issues of contested facts have been presented; or similar policy issues must be balanced. Just as the Court can look to lower court decisions and law review articles, looking to foreign cases allows for another perspective on a difficult issue. Why should the Court be excluded from reading (and pointing to in its opinions) foreign opinions when it can cite to any third rate law professor without any controversy?
I think it trivializes constitutional inquiry if we cite foreign sources to provide additional support for a conclusion that we already were going to reach based on more traditional sources.He appears to believe a the result in a case flows directly from "sources," leaving out the fact that applying a general principal of law in a particular case takes facts and logical reasoning. Whether executing juveniles is cruel depends may depend upon our understanding of brain development and the probable effects of such a law (execution would be less "cruel" if it acted as a strong deterrent to crime). All nations -- save the US -- had banned the execution of those convicted as juveniles; looking to the reasons and facts that supported those decisions is important. These foreign opinions can be considered traditional sources under a different title.
This ties into the basic questions of how the Constitution should be interpreted. If you are a certain type of originalist, which I will call a strong-originalist, the Equal Protection Clause could not be used to strike down laws barring them from becoming lawyers or laws that give exclusive control of a wife's property to the husband. Nor could the Constitution have required desegregation of schools. At the time of the passage of the Fourteenth Amendment the authors and the public enacting the law never expected it would overturn these practices. Looking to the expectations of the framers and the public, a large amount of discrimination based on race and gender is acceptable under the Fourteenth Amendment.
This form of originalism is supported only when it doesn't embarrass the proponent. Originalists don't like to argue Brown v. Board of Education was decided incorrectly because it makes them look like racist assholes, but they might not be afraid to condemn homosexuals as unprotected by the Constitution based on the 1850's understanding that homosexuality is immoral (because they don't mind looking like anti-homosexual bigots). And they don't mind applying strong-originalism to the scope of the Commerce Clause. And to add to the hypocrisy, they often claim affirmative action programs are unconstitutional, when they would clearly be allowed under an originalist understanding.
Frankly, I don’t know how we begin to identify the relevant universe of foreign sources and precedents that might be deemed persuasive by one or more Justices."Whaaaa! Its really hard work to look at foreign law!"
My point is simply that relying on foreign law to interpret our Constitution appears to create more problems than solutions.My point is that the Court does not rely on foreign law.
Mostly, the argument against citing foreign law is just hyperbole meant to fire up the judge-hating, ten-commandments crowd:
Those who seek to enshrine foreign and international law in our Constitution through the courts...Who are "those" I wonder. Nobody I have ever read about.