Saturday, April 02, 2005


According to a NYTIMES article, SCOTUS Justice Ruth Bader Ginsburg (appointed by Clinton) has essentially ABANDONED CONSTITUTIONALISM.

She is quoted as having said (to a meeting of the American Society of International Law):

After a strongly worded dissent in a juvenile death penalty case from Justice Antonin Scalia last month that accused the court of putting too much faith in international opinion, Justice Ginsberg said the United States system should, if anything, consider international law more often.

"Judges in the United States are free to consult all manner of commentary," she said in a speech to several hundred lawyers and scholars here Friday. She cited several instances when the logic of foreign courts had been applied to help untangle legal questions domestically, and of legislatures and courts abroad adopting United States law. Fears about relying too heavily on world opinion "should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey," Justice Ginsburg told members of the American Society of International Law. ...

"The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification," Justice Ginsburg said. "Even more so today, the United States is subject to the scrutiny of a candid world," she said. "What the United States does, for good or for ill, continues to be watched by the international community, in particular by organizations concerned with the advancement of the rule of law and respect for human dignity."

Her remarks reveal that Ginsburg thinks it is the role of SCOTUS Justices to (a) decide - based on anything they choose: (a) what is a good law; (b) determine for all Americans how to respect human dignity; (c) and use any source to determine how a law should be interpreted. Ginsburg is EXPLICITLY saying that SCOTUS Justices should NOT "MERELY" decide whether a contested law or ruling is allowable under the Constitution.

SHE'S ALL WRONG! The ONLY role of the SCOTUS is to determine if a contested law or ruling on the law is permissible under the one-and-only Constitution we have. Either it is or it isn't - or the Constitution is SILENT on the controversy.

If the Constitution is vague or ambiguous on a given controversy, then there is a possibility - NAY LIKELIHOOD... NO CERTAINTY of a split decision by the SCOTUS. This is what happens MOST of the time. (And, THE FACT IS THAT MOST decisions are split, and NOT closely split, and most Justices agree with each other more than half the time. Thomas agrees with Stevens and Ginsburg and Breyer MORE THAN HALF THE TIME!)

But sometimes, on a given controversy, the Constitution is SILENT. When it is silent, then SOME Justices (the non-originalists, the LEFTISTS) see it as an OPPORTUNITY to INNOVATE, and they look BETWEEN THE LINES, or OVERSEAS for guidance, AS IF THEIR ROLE WAS TO DECIDE WHAT - (in terms of a law) - THEY THINK IS BEST FOR THE REST OF US.

This is simply NOT THEIR ROLE! That is what LEGISLATURES ARE FOR. That is what the Congress was set up to do BY THE CONSTITUTION, and what each state legislature is supposed to do in the realm of state law. (THIS IS KEY: there is a federal realm and a state realm; this is DETERMINED BY THE CONSTITUTION. Some areas of life need to be regulated by the federal government and some by the states. IT'S ALL THERE IN THE CONSTITUTION.)

And this is of course the sui generis raison d'etre FOR a Constitution. (How's THAT for a polyglot hodge-podge!) A nation, or state, has a Constitution for the sole reason of having a basis - a bottom-line, a bedrock foundation - for determining what is allowable and legal.

If Justices look elsewhere then they have effectively DE-constitutionalized the Constitution. They have nullified its sole purpose, made meaningless it sole meaning, and made useless its sole use.

FURTHERMORE, it's simply democratic heresy and a usurpation of authority. Only the PEOPLE - ONLY WE THE PEOPLE have the right to amend the Constitution, and repeal limits WE think need repealing, or create limits where WE think that public intercourse (which is under the purview of the federal government) needs limitations. And the ONLY CONSTITUTIONAL way to do this is through law-making or the Amendment process - BOTH OF WHICH ARE DONE LEGISLATIVELY, AND NOT BY JUDICIAL FIAT FROM THE BENCH.

I think that if any SCOTUS Justice uses any source other than the US Constitution (and Constitutional history/case-work) to decide a case, that they have committed an IMPEACHABLE OFFENSE.


Scalia has written about this; SEE: Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, edited by Amy Gutmann; Princeton, N.J.: Princeton University Press, 1997.

In A Matter of Interpretation, Justice Scalia acknowledged that his textualist approach is regarded in "some sophisticated circles" of the legal profession as "simpleminded -- 'wooden,' 'unimaginative', 'pedestrian'" (Scalia, p. 23). He rejected this characterization and denied that he was "too dull to perceive the broader social purposes that a statute is designed, or could be designed to serve, or too hidebound to realize that new times require new laws;" he merely insisted that judges "have no authority to pursue those broader purposes or to write those new laws” (Scalia, p. 23). For his eleven years on the Supreme Court, Scalia has stuck to the "text and tradition" of our written Constitution and has rejected the intellectual fads and novel theories of interpretation that have the invariable effect of transferring power from the popular branches to the judges. In so doing, Scalia reminds his colleagues of the most important right of the people in a democracy -- the right to govern themselves as they see fit and to be overruled in their governance only when the clear text or traditional understanding of the Constitution they have adopted demands it.
BRAVO SCALIA! Down with Ginsburg and Leftist ACTIVIST judges who want to rule extra-constitutionally and by fiat. Of course: They tell us it's for our own good. Tyrants always do.

(ADDENDUM TO LEFTISTS: if the SCOTUS adhered to what is the international norm as a way to determine American constitutionality, then the USA would NOT have abortion on demand - only six countries in the world have it, INCLUDING the USA.)

CITIZEN Z has more - including some other links; GO THERE.


Gandalin said...

Excellent point, Reliapundit!

It's particularly telling that Justice Ginsburg refers to foreign NGOs as here arbiter elegantiae, since these groups are well known to be a refuge for Marxists and statists.

What she is really saying is that she will interpret the Constitution so as to appeal to foreign commies!

By the way, when the Constitution was adopted, the U.S.A. was the one and only democratic republic in the world! And it was still the only democratic republic in the world for over 80 years, when Lincoln gave the Gettysburg Address.

What would we have for democratic institutions if foreign-ideology-worshippers like Justices Ginsburg, Breyer, and Kennedy had been active then? If they had tried to please the despots and tyrants of the world then as assiduously as they try to please them today?

Heaven forbid!

Impeach the lot of them!

Gindy said...

How did they let this lady get confirmed I will never understand. To think we have this crises in getting particular judges past the Senate and somehow she made it by.

TheDevilIsInTheDetails said...

Another abortion procedure Resource... LifeLaw.org . A discussion forum for all that deals with such hot-button issues as abortion procedure .