Below is my latest article for the Sewanee Purple. As always my argument is limited by page length.
Recently the New York Times ran an article in which Supreme Court Justice Ruth Bader Ginsburg defended the use of foreign law in United States Supreme Court rulings. Consistent with her liberal jurisprudence, Ginsburg noted, “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.” What she meant from this outlandish comment was that she believes it is perfectly appropriate for foreign courts, ruling on their own laws, to dictate the outcome of our own domestic courts, ruling on our own laws. Anyone who has ever tried to use an instruction manual for one product to operate or assemble another should have no problem instructing Justice Ginsburg on why there is so much “brouhaha.” Why we do not use foreign courts to determine our own domestic rulings is because we do not have the same Constitution and legal system as foreign nations. Our nation is based on a rule of law that is specifically tailored to the American people. Other nations may have much in common with our governmental system, but at the end of the day, they are not America. Therefore, we cannot allow our rule of law to be replaced with “rule of foreign precedent.” We cannot allow justices who do not derive their power from the people of the United States to hold sway over our own courts. My point is not that foreign courts are inferior, but that American courts are in a different legal context formed by our own laws and constitution. It is the responsibility of the Court to rule according to this context, not to abuse their power and shape America to their own liking.
Justice Ginsburg’s position is completely inconsistent with our constitutional heritage. Her problem—besides an utter disregard for constitutional originalism and a refusal to strive for value-free judgments—goes beyond a reliance on the judgment of foreign courts and other forms of “judicial pragmatism.” Ginsburg and those sharing her views are intelligent enough to understand that one cannot rely on foreign rulings, if one is to rule faithfully according to the US Constitution. However, these liberals’ concern is not to determine the meaning of the Constitution and rule accordingly, but rather to decide what ruling would have the “best effect,” what would allow the Court to right “societal wrongs.” They are less concerned with what the law is and more concerned about what it “should be.” This judicial liberalism is nothing less than despotism; it is a complete rejection of the rule of law and of the Constitution.
Article VI of the Constitution states, “This Constitution, and the laws of the United States which shall be made in Pursuance thereof;…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”
It is the US Constitution which should determine the rulings of the Court, not judicial agendas. It is the Constitution that must bind the judges, and it is the Constitution which was created “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” When we veer from our constitutional heritage, we cannot expect to long survive as a nation. We will ultimately be doomed to lose our freedoms. Relying on foreign rulings, in itself, will not lead directly to loss of freedom, but the long line of constitutional disregard of which it is a part will. "To keep in all things within the pale of our constitutional powers... is one of the landmarks by which we are to guide ourselves in all our proceedings." Otherwise, we cannot be partakers of the freedom it guarantees.
If you take anything from my words, take this. Our constitutional rights and liberties must be continually vigilantly guarded; we must adhere to the rule of law. When we allow the government to grow past its constitutional bounds, when we disregard the letter and spirit of the law as “outdated” in pursuit of temporal whims, when we engage in constitutional apostasy, that is when our freedom dies and our nation perishes.
So when we see our leaders violating our founding document, let us echo the words of Thomas Jefferson, “Our Constitution has accordingly fixed the limits to which, and no further, our confidence may go... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
In Defense of the Constitution,