The Recent Illegitimate Use Of International Law By Supreme Court In Constitutional Interpretation And The Nomination Of Elena Kagan

Former Attorney General Edwin Meese under Ronald Reagan has rightly said that "nothing troubles me more than justices who invoke international law and the decisions of international law tribunals in interpreting the Constitution... [F]oreign laws and foreign courts are not legitimate guideposts for interpreting the Constitution. And when justices rely on them, they're violating their oaths to uphold our own Constitution."

This troubling development has become even more pronounced in recent years as the Supreme Court has looked to foreign law and practices in their majority rulings. As recent examples, the Supreme Court cited international law and practices in the 2005 case of Roper v. Simmons which held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18 under the Eighth Amendment's prohibition against cruel and unusual punishment. As Justice Antonin Scalia correctly wrote in the opening of his dissent to that ruling, “The Court thus proclaims itself sole arbiter of our Nation’s moral standards – and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.” This alone is bad enough, but even worse, the arbitrary nature of the decision was undeniably self evident. The 5-4 decision overturned a ruling from less than 20 years earlier which upheld the very same sentences for an offender above or at the age of 16 (in Stanford v. Kentucky, 1989). That opinion was written by none other than Antonin Scalia, and declared that "[w]e discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age. Accordingly, we conclude that such punishment does not offend the Eighth Amendment's prohibition against cruel and unusual punishment." The Justices of a more recent Supreme Court in 2005 were doing nothing more than imposing their own policy on the nation by judicial fiat, overturning statutes in 25 states, with no basis in the Constitution and obviously running against existing precedent. A further example of the use of international practices can be seen in the Supreme Court this month going one step further, continuing to abuse its self-ordained power of judicial review, deciding even more arbitrarily than before in Graham v. Florida that it was cruel and unusual punishment for 35 States and the District of Columbia to allow juvenile life without parole. The decision specifically cited a “global consensus” on the matter to validate its illegitimate ruling.

There is no reason to believe that Obama's Supreme Court nominee Elena Kagan will not be a proponent of this troubling trend once she is on the Court. During her confirmation hearings for her current position of solicitor general she said: "At least some members of the court find foreign law relevant in at least some contexts. When this is the case, I think the solicitor general's office should offer reasonable foreign law arguments to attract these justices' support for the positions that the office is taking." She was willing to make illegitimate arguments to satisfy the illegitimate nonsense of the liberal Justices who she herself described as willing to "find foreign law relevant." In a New Hampshire speech on Oct. 6, 2008, then Harvard Dean Kagan referred to "a transnational perspective" as being "foundational" as "part of the core of legal thought and activity in this new century." The relevance of international law and practices to Constitutional interpretation is an important question that she must answer honestly and forthrightly in her confirmation hearings, or else be voted against. Tweet