American Values - Gary L. Bauer, President

Op/Ed Article Article

Disorder in our high court

USA Today

03/21/2005

While our nation's attention has been focused on revolutions taking place in the Middle East and around the world, what hasn't gotten much notice is a revolution of sorts going on right here in the American court system. In a disturbing departure, the Supreme Court is trending away from employing the U.S. Constitution to interpret U.S. law, and is increasingly relying on international law and opinion as the basis for domestic legal decisions.

In the recent Supreme Court decision to overturn laws permitting the executions of 16- and 17-year-old killers, Justice Anthony Kennedy signaled clearly that the court would increasingly look abroad for guidance in interpreting our Constitution.

He points out that the court is building a tradition of referring "to the laws of other countries and to international authorities as instructive for its interpretation" of the Constitution. In fact, five justices spent five pages referencing international law in their opinion.

Unfortunately, this isn't just one renegade case:

• In Lawrence v. Texas (2003), the majority opinion was guided by the rulings of the European Court of Human Rights. In fact, Kennedy said that overturning a prior decision upholding sodomy laws was necessary because it was devoid of any reliance on the views of a "wider civilization."

• In their decision to uphold affirmative action at the University of Michigan Law School, Justices Stephen Breyer and Ruth Bader Ginsburg prominently cited a United Nations' treaty — the Convention on the Elimination of All Forms of Discrimination against Women — even though for more than 20 years, the U.S. Senate has refused to ratify the treaty.

In fact, in many of its highest-profile cases, the court has cited rulings from nations and international institutions as diverse as the U.N., India, Jamaica, and even that model of justice, Zimbabwe.

The trend of systematically referring to international sources and basing decisions on foreign laws is worrying for a number of reasons.

First, our Supreme Court is charged with interpreting our Constitution. While other countries may have constitutions that are similar to ours, they are not alike in content or in the context in which they were written. How can we decide on the constitutionality of a law based on laws from some other country's constitution?

Second, the precedent of referring to international law threatens our national sovereignty. America is a unique nation, with a unique Constitution that has its own history. How can we interpret it based on the standards and values of judges in Zimbabwe?

We can't ignore what is happening here. Whether you agree or disagree with the court's ultimate decisions, the issue is the manner in which these decisions are made. Under no circumstances should laws passed by the British Parliament, the French National Assembly, the German Bundestag or the High Court of Zimbabwe be a factor in deciding what is a permissible decision by the American people in our own self-governance.

While we are nobly trying to expand liberty in the Middle East, inattention to these judicial outrages is in danger of undermining liberty here. It is ironic that just as we help the Iraqi people secure the ability to write their constitution, our own Constitution is being trampled on.

Our Founding Fathers knew that the best defense against dictatorship from the outside was strong national sovereignty. They understood this from suffering under the rule of the kings of Europe. More than two centuries ago, we fought a war so that Americans would no longer be ruled from Europe; it is high time the high court is reminded of that fact.

Gary Bauer is a former presidential candidate and president of American Values, a conservative, non-profit organization.