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Sunday, March 20, 2005
Look at me, I'm Sandra Dee, lousy with Constitutionality
The Friday before last, the University of Houston Law Center was visited by the U.S. Supreme Court's greatest waffler. As a matter of fact, if only John Kerry had managed to conquer the art of wetting one's finger before placing it in the air when determining right from wrong as well Sandra Day O'Connor, he might be president. Perhaps the greatest mistake of President Ronald Reagan's tenure in office, O'Connor is known for authoring the majority opinion in Grutter v. Bollinger that found that racial discrimination in university admissions does not violate the Equal Protection Clause of the Constitution, while holding in Lawrence v. Texas that a law as applied banning gay sodomy did.
O'Connors speech at the Law Center was for the most part a canned routine of describing her life as a young unemployed lawyer trying to find work in a male-dominated profession. However, there was one interesting and relevant portion to her talk. During Q & A, Justice O'Connor was asked, in reference to Roper v. Simmons (holding that the death penalty for minors violated the 8th Amendment and was therefore unconstitutional based on "evolving notions of decency"), what role foreign law should play in determining the constitutionality of U.S. laws, if any. O'Connor's response was typical of what those familiar with the court have come to expect form its liberals: there are no absolutes. O'Connor answered that whenever there are laws in other countries or by the U.N. that speaks directly to the subject of the U.S. case, that then, the Supreme Court should heed it. When there is no foreign law on the subject matter, then the courts must sadly rely on only what the unwashed American masses have passed as law through their primitive representative democracy. Well, not exactly, but you get the idea.
Critics of this philosophy, including Justice Antonin Scalia, have asked how it can be determined if a law is consistent with the U.S. Constitution by looking to laws made by jurisdictions and governments not bound by our Constitution. O'Connor's answer would be that "international law is a help in our search for a more peaceful world". Oh really? As Scalia has pointed out, if you are citing foreign law that is non-binding authority, shouldn't you be citing ALL foreign law on the subject matter, and not just from the countries you agree with? You won't find the liberals on the court adopting Islamic law, South-Asian law, or South American law. But as critics point out, once you open up the U.S. Constitution for manipulation by jurists using foreign law, you let everything in. The Europeans might be "enlightened" when it comes to sodomy and the juvenile death penalty. But, as long as your are citing (and adopting) international law, should we not care how Taliban and Zimbabwe governments handle the same issues?
Determing U.S. law based on the will of despots, international bodies, and even other democracies, is still nothing more than a Supreme Court sympathetic to Kofi Annan and Jacques Chirac imposing their beliefs on Americans by fiat. As justice Scalia said after Roper v. Simmons, "If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility. Why in the world would you have it interpreted by nine lawyers?"
Here's a cheer for Justice O'Connor and three more for judicial tyranny.