The spectacle of our Supreme Court leaning on foreign law and foreign prejudices in interpreting our Constitution is doubly disturbing. Even at its best, Supreme Court review of our laws is in tension with democratic principles, since the Court is reviewing, and sometimes overturning, the decisions of the people’s elected representatives. To the extent that there is a democratic justification for this, that justification is that, in conducting its review, the Court is applying core principles that Americans have agreed should govern the way we constitute ourselves as a society notwithstanding the temporary whims of a particular legislature or voting populace. The justification is not that Supreme Court Justices know better, or are more sophisticated and better travelled, than any particular legislature or voting populace.
There is much disagreement about how one identifies and applies the core principles we, as a society, have agreed upon. Conservatives tend to focus on the text of the written Constitution and the intent of those who drafted it. Liberals like to talk about our evolving social values and understandings. But I’ve never heard anyone suggest that we should identify our core societal principles by looking to Europe. When the Supreme Court begins to do so, the democratic justification for Supreme Court review is undermined.
Our most democratic branches — the legislative and executive — have, for the most part, heroically resisited ceding our sovereignty to international organizations and treaty arrangements. Unfortunately, but not surprisingly, our least democratic branch is increasingly dominated by Justices who, far from desiring to put up such resistance, are eager internationalists.
HINDROCKET adds: Well put, Deacon. For many years the core problem of the American left has been how to deal with the fact that the vast majority of Americans stubbornly refuse to be liberals. Resort to the courts has long been a favored solution, but its efficacy is limited to some degree by the fact that our founding documents are no more left-wing than our voters. So the ultimate solution, I suppose, is to dispense with the United States altogether and turn to Europe for guidance. An odd practice for an American court, but understandable in this context.
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