Justice Ginsburg Throws Down the Gauntlet

Supreme Court Justice Ruth Ginsburg gave a speech in South Africa last month, which, for some reason, is just now being publicized. Ginsburg’s speech was titled “A Decent Respect for the Opinions of [Human]kind.” In it, Ginsburg argued explicitly for the relevance of foreign law and court decisions to interpretation of the American Constitution. Ginsburg did not try to hide the partisan nature of this issue; at one point, she referred to “the perspective I share with four of my current colleagues,” and she specifically criticized Justice Antonin Scalia, Judge Richard Posner, and the two bills that were introduced in Congress in 2004 and were broadly supported by Republicans. And she indulged in an outrageous bit of demagoguery, suggesting that those who disagree with her are somehow aligned with Justice Taney’s infamous defense of slavery in the Dred Scott case.

Ginsburg contrasted our Constitution (unfavorably, I think it’s fair to say) with the Constitution of South Africa, which specifically provides for the use of foreign law in interpreting its provisions.

You really should read the entire speech, but its argument is most concisely stated here:

To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald’s words, of “common denominators of basic fairness governing relationships between the governors and the governed.”

This is, to put it politely, nonsense. In our system of government, the courts are not called on to determine what “basic fairness governing relationships between the governors and the governed” requires. For legal purposes, issues of “basic fairness” were decided when the Constitution was authored and approved by the initial thirteen states, and when the document has been amended over the subsequent centuries.

The real issue here is: what is the Constitution? Justice Scalia has famously noted that the Constitution is a legal document which, like all legal documents, says some things and does not say others. In Justice Ginsburg’s view the Constitution is, on the contrary, a roving charter for nine individuals to decide what “basic fairness” requires. It should hardly be necessary to point out that the former understanding, which was universal until quite recently, is a charter of freedom, inasmuch as the people’s representatives can vote on amendments. Conversely, the “basic fairness” approach is a form of tyranny in which a small elite can impose its policy preferences on the rest of us.

It is also utterly unworkable. There is a reason why people reduce legal documents to writing: it’s the only way to know what the deal is. Under Justice Ginsburg’s approach, the “law” is ineffable. There is no way to know from one day to the next what it might be.

Take, for example, the issue of homosexual sodomy. The Supreme Court recently ruled, in Lawrence v. Texas, that there is a constitutional right to commit acts of homosexual sodomy. Was this ruling informed by reference to foreign jurisprudence? If not, why not? On Ginsburg’s approach, the justices apparently get to pick and choose when they will look abroad for guidance. And, if foreign guidance had been sought in the Lawrence case, would the justices have looked to the law in Muslim countries where commission of such acts is a capital crime? If not, why not? There is no coherent answer to these questions, and, Ginsburg does not offer one. In reality, reference to foreign law is nothing more than an ad hoc tool to be invoked or ignored at will by justices who want to advance a left-wing agenda.

I’ve tried to be measured in this critique of Ginsburg’s speech, but the truth is that it is more reprehensible than I have suggested. You really have to read it to appreciate how far removed it is from American laws and traditions, and how demagogic it is in both tone and substance.

Ginsburg repeatedly quotes the Declaration of Independence’s reference to “a decent respect for the opinions of mankind,” as if it somehow supported her argument. But this is silly. There are many contexts in which such a “decent respect” is entirely appropriate, including the context of the Declaration, which was an explanation to the world (and to the then-colonists in America) of the grounds for separation of America from Great Britain. But judges don’t normally take the “opinions of mankind” into account in rendering their opinions. On the contrary, any judge–one might say, especially, any liberal judge–will assert that his foremost duty is to disregard the “opinions of mankind” so as to uphold the letter of the law. Justice Ginsburg is deferential to the “opinions of mankind” only when they suit her fancy; that is, when they are manifested in French newspapers, but not when they are expressed in resolutions of the American Congress. This may or may not be a sound political preference, but it is a ridiculous basis on which to decide questions of law under our Constitution.

One last comment, on the title of Ginsburg’s speech: “A decent Respect to the Opinions of [Human]kind.” This more or less sums up her position: the Declaration refers to “Mankind,” but that is out of step with what Ginsburg views as the 21st century liberal consensus. So she changed Thomas Jefferson’s words to accord with her own usage. And, I suppose, with the usage of various foreign courts. Which is what she and her fellow Democrats propose to do to the Constitution: where the language doesn’t match their opinions, change it.

PAUL adds: It won’t happen, of course, but I think there’s a case to be made for impeaching Justice Ginsburg.