Justice Ginsburg: Supreme Court Considers Foreign Laws, Not Just Constitution

[rwc]

It turns reason on its head to use this practice as justification to use foreign legislation from foreign countries with a civil law system to interpret the US Constitution.

I mostly agree with you. Again, maybe I missed it, but was that what J. Ginsburg suggested?

 

[longeyes]

"Secretary of State Condoleezza Rice introduced Justice Ginsburg at the event, describing Justice Ginsberg as "a great and good friend," noting also that they also happened to be neighbors"

Before we anoint Condi Rice, because of her professed pro-gun views, as the Great Inevitable for President, I suggest she be tested via the crucible of elected office. So far her swift rise to power has been through appointed positions--largely because of her closeness with W.--and isn't this exactly analogous to the problem many of us are seeing with the Justices on the High Court?

 

[Rebar]

describing Justice Ginsberg as "a great and good friend

This is the usual "comity", ie civility, which is pretty much mandated in Washington circles. Even folks who despise each other will make some effort at comity in public.

 

[spartacus2002]

But, the common law is trumped by federal and state constitutions and legislation. The common law originated in England, so on occasion english case law has been cited in US decisions, though this occurs less and less often as the centuries pass. Please note that even on these occasions, we never used English legislation to interpret the US constitution. We only used English case law to determine common law jurisprudence in areas where our own Constitutions and laws are silent.

Not exactly.

The Constitution is the lens thru which we observe the common law, unless said common law is superseded by legislation. And, there are examples of SCOTUS decisions where they refer to English cases from centuries ago that dealt with similar issues. So while they are not dispositive, they are persuasive.

And my law school's Virginia Procedure class taught us that any cause of action that was good in England in 1620 is still good. Virginia is 400 years of history unimpeded by progress.

 

[ring0]

rwc, I recommend that you read Lawrence v. Texas, or if time is short at least check out Scalia's dissent (which is pretty funny btw) to see what all the hubbub is about. It may not be clear if you just read this article out of context, but the position that Ginsberg is defending is essentially this: judges should look to foreign legislatures to see what the US Constitution means, even if that foreign position is 180 degrees from what the Constitution meant when it was written.

Spartacus, I concede every fact you gave to support your position, but those facts don't lead me to agree with liberal nonsense about the Constution being nothing but a lens. (It's not a living-breathing flavor-of-the-month whatever-hippies-feel-like mood ring either!) It is true that common law decisions have no expiration dates and many common law decisions stand for centuries, maybe even indefinitely, but the US Constitution is far more than a lens through which we observe common law. The Constitution is the SUPREME law of the land. Yes, legislation supercedes common law decisions, but the Constitution supercedes everything. When the Constitution was ratified all common law contrary to the Constitution went out the window- likewise, when a constitutional amendment is ratified and becomes part of the Constitution. Yes, SCOTUS cites old common law cases, usually regarding matters on which the Constitution is silent, but any common law decision at odds with the Constitution is toast. I don't dispute that some old English common law decisions from colonial times may shed light on what the drafters meant by a particular legal phrase when deciding a constitutional question (they were speaking the same language after all), but like you said, that decision is only useful in the way that legislative history is useful, not as precedent which binds a justice by stare decisis.

 

[Cool Hand Luke 22:36]

Justice Ginsburg is going to be the death of our Constitution. Why she wasn't "Borked" is beyond me.

In 2003, Republican Justice Sandra Day O'Connor openly stated that the court should look abroad for judicial guidance.

Republican? When did O'Conner become a Republican?

 

[Cool Hand Luke 22:36]

ringO:

Excellent rebuttal.

 

[Andrew Rothman]

Um, guys?

Newsmax.

 

[ring0]

Thanks, Luke. Despite periodic liberal decisions and a tendency toward moderate positions in general, O'Connor actually is a Rebublican, appointed by Reagan, and she grew up on a ranch and can actually ride and shoot. Based on her overall record and her judicial philosophy as evidenced by her opinions, I would count her among the 4 current Justices who I believe would rule the right way on the 2nd amendment. Of course betting on which way the Supremes will go on any question is an excellent way to lose money. The point is probably moot anyway since she will probably be retired by the time the 2A question comes up. Let's hope her replacement and the other 8 Supremes, whoever they will be, don't look to French law for the answer and instead get it right!

 

[DRZinn]

if a US company sells a product that violates some Canadian law and a Canadian sues inside the US, Canadian law would probably be brought into the picture.

Under what legal principle could a Canadian sue in the US for a violation of a Canadian law?