Monday, June 20, 2005

Transnational law? A nightmare notion

Do you think that I am just mocking a straw man when I discuss the Supreme Court watching press and how it feels that a conservative justice leaning toward the leftist international position means the justice is "growing" in office?

Not so, as Tony Mauro proves:

Kennedy's progression

I remember covering a meeting of the American Bar Association in London in 2000 where Kennedy was asked by a British barrister during a panel discussion why the Supreme Court so rarely cites foreign court rulings, when those courts so often cite ours. Foreign rulings were too remote and unknown to American judges to cite reliably, Kennedy replied — an answer that nearly got him hooted off the stage.

Kennedy has come a long way since then, and other justices have too. They all have come to realize that the American legal system is no longer viewed as the only beacon of justice in the world. They do have something to learn from the courts and laws of other nations.

Sickening. The notion that the US has anything to learn from any country other than the UK's common law is ludicrous on its face. Zimbabwe criminal procedure, Iranian health care law, transnational conventions that US has deliberately refused to sign, Canadian civil rights law, and even UK criminal procedural statutes have no application here, and should be disregarded by the Supreme Court.

Other nations look to the US Supreme Court for two simple reasons: the quality of the legal thinking and the US Constitutional guarantees that it interprets. No country or multinational construct has that combination, nor can it approximate the US record. And most importantly: NO OUTSIDE LEGAL SYSTEM HAS ANY RELEVANCE TO QUESTIONS ARISING UNDER THE UNITED STATES CONSTITUTION.

And Mauro's fawning over Kennedy's "progression" is rooted in this asinine concept:

If globalization has flattened the world in terms of the economy and culture, isn't it time that our legal system also look beyond our borders? Are we so arrogant that we think we have nothing to learn from judges and lawmakers around the world who have faced the same issues we face?

Answer: yes, because we have faced those concepts before, our judges are generally the best in the world (federal level) and our Constitution is the document that provides the highest protection for individual freedom of any law in the world. Cassandra at Villainous Company may blame Thomas Friedman's Flat World concept for Mauro's inanity, but it has existed for years.

As one commenter at that blog noted:

The conservative justice isn't going to cite the foreign law at all, though Scalia will rightly make fun of the liberal for ignoring the overwhelming number of foreign states that have laws opposing the liberal viewpoint. The liberal isn't going to cite the many laws of foreign countries that outlaw abortion or don't have environmental legislation. It isn't relavant then, for some reason.

No, this is outcome determinative reasoning by the leftist judge.

Correct. And that's why Mauro's reasoning is so repulsive.


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