When deciding a given case, should a Supreme Court justice be guided solely by the Constitution and the laws of the United States? Or should foreign policy or law be involved?
These are basic questions for most Americans. They know that U.S. citizens are subject only to laws made by U.S. lawmakers – not foreigners at the United Nations, in Europe, or in Zimbabwe.
But at least one Supreme Court justice says U.S. lawyers should pay attention to foreign precedents. President Barack Obama’s first nominee to the Supreme Court, Sonia Sotomayor, also seems a bit unclear on this issue.
Just two years ago, a book titled “The International Judge” featured an introduction written by her. “It is worth asking how much we have to learn from foreign law and the international community when interpreting our Constitution,” she wrote.
Earlier this year, Sotomayor spoke with the Puerto Rican chapter of the ACLU. “International law and foreign law will be very important in the discussion about how to think about outstanding issues in our own legal system,” she told the group.
Both quotes are disturbing. There is simply no need to consider foreign law when interpreting American constitutional law.
Because the Constitution, by definition, is all that is needed. And despite its brevity, our Constitution is remarkably effective. As a guiding legal framework, it works much better than longer (and lengthy) documents such as the European Union Constitution. For example, the protections for free speech provided by our Constitution are extraordinary, admirable, and unique.
Unfortunately, Sotomayor is not alone in her foreign policy considerations. Earlier this year, Justice Ruth Bader Ginsberg told a panel at Ohio State University that our Supreme Court should pay more attention to the laws and policies of other countries. “You will not be heard if you do not listen to others,” she warned.
Well, what does it matter if lawyers in Yemen decide to cite US precedent?
Our founding document was written to create the United States. The laws passed within 221 years of ratification were intended to govern Americans. Anyone who wants to live under Sudanese law is free to move. However, for over two centuries, the line has been up for grabs down to the United States the queue was much longer outside. We’re doing something right.
In a recent article published by The Heritage Foundation, international law expert Steven Groves suggested several questions Sotomayor should ask during her hearings.
§ Do you believe that the proper role of a Supreme Court judge is to decide cases based on whether the ruling will affect the jurisprudence of foreign courts? If so, how massive a role should the desire to influence foreign courts play in the interpretation of the Constitution?
§ According to what criteria should foreign decisions be cited? Should the Court really seek to adopt norms beyond the American tradition when deciding cases involving controversial “values” issues such as the death penalty and homosexuality?
§ What exactly constitutes the mainstream of human thinking? Since much of American constitutional jurisprudence falls outside the mainstream, why would we want to allow America’s less republican neighbors in the global community to influence the Court’s decisions?
Over the past few years, The Heritage Foundation has distributed more than three million copies of the United States Constitution, which Supreme Court justices are sworn to defend and uphold.
Justice Sotomayor deserves a amiable reminder that the Constitution – although diminutive enough to fit in a jacket pocket – is gigantic enough to govern our continental nation. And its mandate, if confirmed by the full Senate, will be to rely on consultations This a document containing guidelines rather than foreign regulations or rules.
Senators should press Sotomayor to clarify her position on the application of foreign law and pay close attention to her responses.
