No, no, no
Justice Ginsburg advocates lending more credence to international law:
Justice Ruth Bader Ginsburg of the Supreme Court embraced the practice of consulting foreign legal decisions on Friday, rejecting the argument from conservatives that United States law should not take international thinking into account.
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.
The Constitution is the law of the land, not world opinion.
April 5th, 2005 at 1:17 pm
I’m torn on the issue. On the one hand, state courts frequently do look to pronouncements of “foreign” (out of state) courts, and sometimes even “alien” (non-U.S.) ones, as persuasive but nonbinding authority to help them interpret similarly worded statutes. This is especially useful when the courts of a small state, say, Nevada, have to rule for the first time on a statute that is almost identically worded to that of a sister state, say, California, whose courts have developed a lot more case law on it. This still leaves the Nevada court free to interpret its law differently from California’s, but it generally means that Nevada will follow California’s lead unless it thinks there’s a good reason not to (or if other states have ruled other directions, so there really is no trend to follow).
Sometimes a federal law, particularly a new one, can and should be interpreted by analogy to how State X has handled a similarly worded state statute for a longer period of time. I can picture some situations where the same principle should apply to U.S. laws that closely parallel those of Canada, the EU, or a few other countries in certain respects. However, too many members of the current Supreme Court, Ginsburg included, seem hell-bent on applying non-U.S. law as though it were U.S. law, and not just something to draw an analogy to. Until we have a court smart enough to know the difference, I’d rather they lay off on consulting alien laws (excluding the subset of English law we inherited in 1776) for any purpose.
April 5th, 2005 at 1:20 pm
I think this is much ado about nothing. I would strongly oppose allowing international law to trump the Constitution, but have little trouble consulting it where the Constitution is unclear. Particularly when trying to figure out what intentionally-vague terms like “cruel and unusual” mean.
Otherwise, what Xrlq said.
April 5th, 2005 at 2:41 pm
“Cruel and unusual” means what it meant in 1791. To the extent world opinion sheds any light on it, feel free to consult all the world opinion you can find from 1791 was to what punishments were considered cruel and/or unusual.