Tags: Justice | Ginsburg: | Supreme | Court | Considers | Foreign | Laws

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

Sunday, 03 April 2005 12:00 AM

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.

Ginsburg's pronouncements fly in the face of fellow Justice Antonin Scalia's recent dissent in a juvenile death penalty case where he said that "like-minded foreigners" should not be given a role in helping interpret the Constitution.

Many foreign nations have outlawed the practice of the death penalty and the practice of applying such a punishment to juveniles.

"Judges in the United States are free to consult all manner of commentary," Ginsburg argued to her audience, citing examples when the logic of foreign courts had been applied to help untangle legal questions domestically, and of legislatures and courts abroad adopting U.S. law.

But some House Republicans seem to be leaning to Scalia's purist notion, recently introducing resolutions declaring that the "meaning of the Constitution of the United States should not be based on judgments, laws or pronouncements of foreign institutions unless such foreign judgments, laws or pronouncements inform an understanding of the original meaning of the Constitution of the United States."

In her address, Justice Ginsberg noted, "Although I doubt the resolutions will pass this Congress, it is disquieting that they have attracted sizable support."

Ginsburg, a Democrat appointed by Bill Clinton, is not alone in her view that the Court should consider foreign laws in forming American court opinions.

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

Sandra Day O'Connor "The impressions we create in this world are important, and they can leave their mark," O'Connor said in a speech.

She indicated that the U.S. is not respected abroad "when it comes to the impression created by the treatment of foreign and international law and the United States court, the jury is still out."

O'Connor indicated she and the High Court had been influenced in recent rulings.

She cited foreign laws as having helped the Court rule that executing mentally retarded individuals as illegal.

O'Connor also said the Court relied on European Court decisions when it struck down Texas's law outlawing sodomy or sex between adults of the same gender.

Justice Scalia, who dissented from OI'Connor's view, wrote: "The court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court ... should not impose foreign moods, fads, or fashions on Americans," he said, quoting the 2002 Foster v. Florida case.

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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. Ginsburg's pronouncements fly in the face of fellow Justice Antonin Scalia's recent...
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Sunday, 03 April 2005 12:00 AM
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