Friday, July 15, 2005

Mark Steyn on Sandra Day O'Connor's embrace of foreign law

I realize I put in too much Mark Steyn here, and I confess that it annoys the hell out of me when it turns out that he - nonlawyer, indeed, never went to college - puts the leading problem of foreign law in US constitutional law better than I do:

A few months later, Sandra Day O'Connor profiled the way ahead for America's constitutional court - EU precedents! I wrote about her strange view of her role in National Review in November 2003:

Did you see what Sandra Day O'Connor said the other day? Swingin' Sandra is the fifth vote on all the 5-4 decisions setting the course for this great Republic, the one the lawyers pitch their arguments to, which isn't as easy as it sounds, given the lack of discernible legal principles governing her erratic pendulum. Clarence Thomas has a sign on the wall of his office: "Please do not emanate into the penumbra." But over at Sandra's pad it's all penumbra: The trick for counsel is figuring, in this constitutional twilight zone, which particular degree of gray tickles her fancy on any given day.

Even so, it comes as a shock to discover that Sandra's now swingin' not between left and right but between the U.S. Constitution and Belgian law. As she told her audience in Atlanta: "Over time we will rely increasingly -- or take notice, at least, increasingly -- on international and foreign courts in examining domestic issues." Doing so "may not only enrich our own country's decisions, I think it may create that all-important good impression."

Until recently, U.S. courts declined to consider foreign courts [this is not quite so - KA]. But, as Justice O'Connor was happy to report, that's all changed: In "the famous or perhaps infamous case" on Texas sodomy she and her colleagues relied on a series of decisions by European courts.

Wow. That penumbra stretches a lot farther than it used to. Speaking as a foreigner myself, I've always found it one of the more charming features of the American scene that "progressives" are obliged to find justification for their radicalism in a piece of old parchment. In Europe, they can simply say: We need to get with the beat, daddy-o. But in the U.S. the Left at least observes the niceties and pretends that the powdered-wig guys had somehow ingeniously anticipated the need for a constitutional right to gay marriage or a partial-birth abortion. Perhaps recognizing that this particular penumbra is pretty well tapped out, Justice O'Connor is now saying that there's gold in them thar Scandinavian hills.

No prizes for predicting which way the emanations are going to go once they take the foreigners into account. In considering the pros and cons of sodomy in Texas, the Supreme Court did not rely on the large body of Nigerian sharia precedents and Taliban jurisprudence in this area. No, the only countries the Supremes seem to have taken under consideration are those in (as Justice Breyer suggested) the Western tradition -- i.e., white Europeans.

Given that this is the court that elevated "Celebrate Diversity" from a bumper sticker to a bedrock constitutional principle, it's a little bewildering to find that they cheerfully accord the white European a unique monopoly on the judicial consultancy positions. Heartening though it is to know the white man still has his uses, this privileged access is, alas, unwarranted. For one thing, the fact that the U.S. Constitution is older than the French, German, Italian, Greek, and Spanish constitutions combined suggests that this member of "the Western tradition" is more traditional than others. For another, can you imagine any judge in France, Denmark, or New Zealand taking U.S. court decisions into account when deliberating on, say, gun ownership or capital punishment?

Let me come at it this way. I love borders, the more the merrier -- town lines, county, state, and, of course, national. Borders symbolize one of the few remaining constraints on government: You don't like the grade school here in town? Move ten miles up the road. You don't want to pay Vermont sales tax? Drive over the river and shop in New Hampshire. Arianna Huffington huffs against "tax loopholes for fat cats," but I'd say the ability to rent a post-office box in Bermuda or the Cayman Islands is a "loophole" in one of the original 16th-century senses -- an aperture to let in light and fresh air. The fact that there's somewhere else to go to is the ultimate limitation on government. Borders give people choices -- and, to put it in a bumper sticker, "I'm Pro-Choice and I Vote with My Feet." When starry-eyed utopians speak of a "world without borders," you can pretty much guess what kind of a place the one-world one-party state would be, with tax rates starting at more than 50 percent, where they are in Sweden right now.

That's why Justice O'Connor's indifference to jurisdictional integrity and partiality to foreigners is not just a kinky fetish but something philosophically incompatible with the job she's meant to be doing. If you wanted to construct the precise opposite of the U.S. Constitution, it would look an awful lot like "international law." The former is a document that limits the state's grip on the people, the latter is designed to ensure they can never wiggle free, no matter where they go. "International law" is the new colonialism, the imposition on the world's peoples of the moral certainties of a remote, unaccountable Western elite -- indeed, one far less tolerant of local customs and culture than the old-school imperialists. The Europeans haven't had much luck imposing their laws on Saudi Arabia and Sudan but, thanks to Justice O'Connor, other backward jurisdictions like Texas and Alabama are about to be whipped into line.

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