TCS Daily


Judge Dred?

By Pejman Yousefzadeh - March 21, 2006 12:00 AM

Ever since the Supreme Court's decision in Lawrence v. Texas, which struck down a state anti-sodomy statute, the issue of whether American courts should rely on foreign law has garnered much attention in legal circles. Readers familiar with the majority decision in Lawrence know of the majority's notable reliance on foreign law in shaping its decision. Naturally, the question has arisen as to whether and when foreign law can properly be cited as influencing the opinions of an American court on a given issue.

Recently, Justice Ruth Bader Ginsburg gave a speech endorsing the use of foreign law citations in decisions by American courts. In the course of her speech, Justice Ginsburg went further than perhaps others would feel comfortable in advocating the use of foreign law; she went ahead and compared those who oppose the use of foreign law as precedential or persuasive authority with those who were responsible for the decision in the infamous Dred Scott case.

Putting aside the fact that foreign law was in fact used to justify the Dred Scott decision -- as this paper points out -- there are very legitimate reasons for resisting the siren song of foreign law.

While it is always of interest to see what foreign courts are doing, it would be wrong for American courts to rely significantly on foreign law in shaping their own opinions. Questions of democratic legitimacy, the cherry-picking of foreign laws to validate a predetermined outcome, and the influence of foreign laws antithetical to norms and standards employed in the United States - all make the use of foreign law more hazardous than helpful:

  • Anti-Democratic. Foreign laws do not run the gamut of electoral and Constitutional methods of gauging legitimacy established in the United States. As such, they are not in any way responsive to the concerns and wishes of the American electorate. This concern may strike some as parochial, but the legitimacy of our laws is highly dependent upon a showing that they are responsive to the demands of the American people. The federal judges who craft judicial decisions are subject to the American democratic process via their nomination to a federal judgeship by an elected President and via confirmation by the Senate. State court judges are either subject to direct election or to a nomination process roughly equivalent to the one that occurs on the federal level. But foreign judges and legislatures are not answerable in any way to American democratic procedures. As such, incorporating foreign law into the body of American law is antithetical to the guiding principles of representative democracy.

  • Cherry picking. As Chief Justice John Roberts pointed out during his own confirmation hearings for the U.S. Supreme Court, "Looking at foreign law for support is like looking out over a crowd and picking out your friends." A judge who relies on foreign law to buttress a decision will likely be able to pick out a particular law or laws to validate a predetermined outcome while ignoring other laws that may argue against that outcome. Of course, it is possible for American judges to arrive at predetermined outcomes in the writing of their decisions even without the use of foreign law. But it would be more difficult for an American judge to cherry pick while relying solely on American law in writing an opinion. Through sole reliance on one particular body of law -- in this case, American law -- judges avoid the ad hoc jurisprudence (and the attendant chaos) that may result from pre-selecting specific foreign laws.

  • Extremists can cherry pick too. Let's say that your views are in the American mainstream when it comes to the issue of women's rights (however the mainstream is generally defined). Would you like it if a judge decided to cite law from a country that has dramatically curtailed women's rights in support for a regressive ruling here at home? Or let's say that you believe strongly in religious liberty. How would you like it if extremely restrictive rulings and laws on religious liberty from abroad were incorporated into American jurisprudence by a judge who took his/her inspiration from abroad?

We are discussing is the creation of a new method of adjudication -- the use of foreign law -- with the seeming presumption that it will lead to more "enlightened" or more "liberal" (whether in the classical or contemporary sense) rulings among members of the judiciary. But it doesn't have to be that way. Foreign law can be used to restrict rights as much as it can be used to advance them. In using foreign law for the latter, we invite the use of it for the former, as well.

None of this is to argue that foreign law does not have its place in American jurisprudence, of course. American law is heavily dependent on the influence of English law and in the state of Louisiana the Napoleonic Code is the basis for the civil law. But there is a difference between acknowledging foreign law as a basis of the American jurisprudential system and using foreign law to supplement existing American jurisprudence. The study of foreign law can be fascinating. But just because a subject is fascinating does not mean it should be used as an instrument of American justice.

Pejman Yousefzadeh is lawyer and a TCS contributing writer.

Categories:

106 Comments

WHAT?!?!
US law is to be based on the Constitution not on laws of other countries. The whole reason for the Supreme Courts existence is based on this. Their job is to look at issues and determine if they are Constitutional or not. In reality they should only be allowed to look at two documents in making their decisions; one being the law in question and the other being the Constitution. Even the practice of using older cases is wrong. Each case should be tried on the merit of that case and that case alone. Just because a case was ruled one way or another and no one questioned it does not make it right.

judgements
The Framers were so naive and the US Constitution is so old that it asks for reasoned judgements of shared values: what's a reasonable punishment, what constitutes advice and consent, etc. If the Framers could read Voltaire for advice, why can't modern justices turn to modern Europe?

The title of the post, "Judge Dred", removes any doubt that it is a one sided hatched job rather than a simple questioning. If you want to point out bad justices, why not mention Thomas, who rarely shows any interest and rarely disagrees with Saclia (never say never). Then there's Scalia who refuses to read the ninth amendment "rights not enumerated.." and socializes with parties in the cases before him, talk about blind justice.

Ten Commandments
If judges can cite any law why not the Ten Commandments or Roman Law or Soviet Laws or....?
Cases must be judged against the current Constitution.
If you don't like the Constitution, amend it. There is a procedure. It is in the Constitution. Look it up.

Nothing about this is unconstitutional.
From what I have read, a Judge can make a ruling (after the law) for what ever resone he wants.

How could you change it? Its impossible to require some one to use a specific philosophy.

We are of course talk about rulling where there is NO clear law involved. Where things are gray.

Reason
"We are of course talk about rulling where there is NO clear law involved. Where things are gray."

All the more reason to have judges that defer to the people.

However, when making a ruling, CITING foreign law is different than being influenced by it.

How exactly?
Once again its not unconstitutional is it?

I am willing to be forgiven if I am wrong.

Judge Ginsburg and foreign courts
Justice Ginsburg cites the foreign courts' use of foreign jurisprudence to prove the propriety of using foreign jurisprudence to interpret our laws. If that sentence seemed irrationally circular, it is.

Because Spanish courts refer to Canadian jurisprudence in the application of Spanish law, it must be okay for Justice Ginsburg to refer to Swedish jursiprudence in interpreting our laws.

It makes your head hurt

Foreign Law
It seems reasonable to me that if there is something admirable about a foreign law, and assuming it could pass constitutional muster, Congress could easily copy and adapt it for our circumstances. One thinks, for example, of Social Security which began in Germany decades before we adopted it. While it might be interesting, from an intellectual standpoint, for a justice to cite how some other country dealt with a particular type of case, this shouldn't be of precendental use because it's not our law. If justices are not able to confine international law citations to this type of decorative use, they should avoid them altogether.

I said judgements
Nobody says French law applies in the US. The US Constitution calls for wise justices to make reasoned judgements: which punishments are "cruel", which assemblies are "peaceful", etc. Since the framers did not define cruelty in detail, they must have intended judges to make judgements about which specific acts are cruel: solitary confinement, cutting off fingers, pain short of organ failure?

If a judge seeks wisdom to make a wise decision, why not study what other wise people have said? And why require all such wise people to live in the US?

Of course, this is what I said the last time & I don't think its that hard to understand.

European law
"The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11—12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent."

When did we become part of Europe?

Judgements
I think that some of us believe that the greater wisdom subsists in fidelity to our own law. Certainly some terms of art like "cruel and unusual" are difficult to define. But as the author of the article points out, "cherry picking" can be done by all sides. The North Korean or Saudi take on "cruel and unusual" would not be well received. I think some would like to "Europeanize" the United States through the judicial back door. They should try their luck in Congress instead.

Judge Dred?
Mr. Yousefzadeh is absolutely correct in his analysis. While foreign precedents may be useful in a comparative sense, they are not derived from the democratic processes that are built into our republic. In fact, many foreign governmental systems are so different from the American one that any reliance on their court decisions, even in cases that seem analagous, or "close," is exceedingly dangerous to the American system.

Judges must be able to discern court rules from their origins. This is a unique responsibility, requiring a commanding faithfulness to our republic, its democratic processes, and its unique moral foundation. Should a judge pick a result, without reference to its origins, in deciding a case, she abandons her responsibility to uphold our consitutional system in favor of another one to achieve a result that she may feel is fair, but may be inexplicable to Americans. Thus Ginsberg's comparison of Taney's rationale in Dred Scott to those who would not pick foreign standards oversimplifies and misunderstands the wrongness of the Dred Scott decision, and a judge's duty.

Bob Ernst

Abortion
Most nations in the world have abortion laws that are more restrictive than those here in the US.

I wonder how eager Ms. Ginsburg is to start using foreign laws to guide her decistions regarding abortion?

the relationship between the governed and their government
Ms. Ginsburg says that she uses foreign laws to help her decide what the fair and proper relationship between the people and the govt should be.

Funny thing. I could have sworn that is what the political process was for.

Like most liberals, Ms. Ginsburg does not trust the people to rule themselves, she feels obligated to figure out for the morons, excuse me, people what the proper decision for any question is, and then impose that decision from her lofty perch.

LG and morality
If the constitution is so vague (funny how only liberals think that it is vague), then ammend the thing.

Like most liberals, you don't like doing work, you just want to get a couple of judges to do all the heavy lifting for you.

a Kierkegaardian look at the Constitution
The problem with the present age is that we have forgotten the concept of authority. We've tossed out authority because we prefer to set up our own genius against it. The problem is essentially one of rebellion . . .

--So says Soren Kierkegaard, in The Book on Adler. (I recommend seeing the Howard and Edna Hong edition in the nearest college library that has a copy; you could read the Editor's Preface and Addendum II, "The Difference Between a Genius and an Apostle"--probably only about 20 pages combined.)

I think SK's take on authoritative documents is instructive. SK describes the difference between a genius and an apostle. A genius stands above the rest of us for only a while, because his unique knowledge differs from our knowledge in only a quantitative sense. Take Einstein as an example of genius: for a moment he stood above all the rest of humanity, but this status was transient because the difference between him and the rest of us was only a quantitative difference; after a while, a number of physicists understood him, and then they stood in the same place he did, and by now any number of physicists may stand above Einstein.

But the authority of an apostle is not transient; the difference between the apostle and the rest of us is a qualitative difference, and so the fact of his position over the rest of us is unaffected not by any merely quantitative change in the brilliant theories the rest of us can come up with.

But since the Constitution is our own governmental authority, I think some of the same principles can apply. We Americans all give lip service to the authority of the Constitution, but some of us are of the strange opinion that the fact of an authoritative Constitution does not prevent us from using our own genius to improve it. The fact is that the difference between an authoritative document (the Constitution) and our own genius is a qualitative difference; if the difference is merely quantitative, then the document can hardly be said to have any lasting authority.

As SK is a committed Christian, it's not surprising that The Book on Adler is talking about the authority of the Bible; and in fact the difference between the apostolic authors of Scripture and any old genius is a metaphysical difference rooted in the apostle's direct relation to God. Of course the Founding Fathers did not write the Constitution under the influence of divine inspiration, so (according to SK, at least) their authority is that of the genius, and it is ultimately only a quantitative difference from the rest of us.

But the funny thing about the Constitution is that its original authors were aware of this, and so they limited their own authority over us: they inserted into the Constitution a method whereby their rules can be changed. Since our authoritative document was designed to not have a permanently fixed and un-adaptable authority over us, we have no excuse for defying its authority.

I can only thing of two likely reasons reasons any American would dream of transgressing the text of our authoritative document. One is stupidity, and the other is rebellion. I assume that most of our activist judges are not studid; if they have a problem submitting to the authority of the Constitution, they should be honest about it.

Mark Boone, grad student, philosophy

m_boone@baylor.edu

markboonejesusfreak@yahoo.com

Dumb Comment
Totally lacking a grasp of the subject matter.

Citing Means Influence
If a judge cites foreign law, it means that it has figured into his/her decision --- THEREFORE --- it means that the judge has been influenced by it.

What maner?
Are you saying this isn't a constitutional question? Or are you saying this is more a philosophical question?

But I still don't see why it should matter.
Do we realy have any business saying how a Judge can make a desision?

Should this be a free expresion of thought? If it shouldn't then what should bind a Judge?

Not Unconstitutional
It is not unconstitutional in the sense that it is not proscribed by the Constitution. HOWEVER --- depsite American law being based in Englsh Common Law, it has progressed and evolved since its modeling after English law. This has followed OUR cultural mores, history and ethics. It should not be influenced --- or deicisions should not be influenced --- by laws that OUR Congress has not recognized and passed. They don't count within our system. Ginsberg's attitude with regard to foreign law demonstrates her anti-American bias --- and while you think that may be an overstatement, the exhibited bias obviously shows that she thinks more of others' laws than our own.

Take an extreme. Under Shariia, Islamic law, if one's daughter is raped --- RAPED --- she can be killed by her male relatives for dishonoring them. Your female cousin is killed by your uncle because HE felt he was "dishonored" by her being raped. Do you think the Supreme Court should let him off by citing the Shariia?

Now, back down to more realistic cases and you will see that the applications of foreign law to American judicial decisions are just as invalid.

9th and 10th
The Constitution outlines limited power of the federal government. All other power resides in the states and or the people.
The TX case in question should never have been reviewed by the S.C. as they should have no jurisdiction. That power should be left to the people.
It is the people the activists courts fear.

Multifactors
It is a societal, historical and legal issue. For one thing, do you want your life to be decided on the basis of laws passed in another country and NOT passed or recognized by OUR Congress? People died for the cause of doing away with "taxation without representation." It's the same thing.

What you are suggesting is impossible.
The example of some Judge rulling rape to be legal because of foriegn law alowing it isn't the question.

Doing that WOULD BE ILLIGAL, becuase local law prohibits this. This can not be the problem.

Isn't the problem one of politics rather then one of the law? It seems in this article its a question of a point of law. I don't think he groks the realy point.

Another Dumb Comment
Get a grasp on history will you? And get a grasp on the American system. Voltaire is NOT cited in American legal decisions and Voltaire was a social philosopher --- not some lawyer like Ginsberg or a politician is some other country.

Taking space just to criticize Justices you don't like over the content of the article is JUST PLAIN STUPID.

Of course not.
This is not the point of my discussion. If a Judge made any rulling that was Illigal then he should be impeached. Thats one of those balence things I read about.

The point is when they make ruling that there is little or no law currently on the books.

BTW
If the Framers of the Constitution were so "naive," what were they doing reading Voltaire? Gee whiz!! They might also have read Rousseau!! ... possibly Erasmus? Locke? Burke?

You can go back to your Action Comics now.

Cruel and unusual
Reading lame comments by LiberalGoodman?

GREAT
I loe a good philosophical argument. I do have to admit that at first I thought you were going to call Ginsburg a genius --- which is hardly the case.

I was reading something the other day that I think applies to Ginsburg and her followers:

"When social forces press for the rejection of age-old Truth, then those who will reject it will seek meaning in their own truth. These truths will rarely be the Truth at all; they will be only collections of personal preferences and prejudices.

The less depth a belief system has, the greater the fervency with which its adherents will embrace it. The most vociferous, the most fanatical are those whose cobbled faith is founded on the shakiest grounds."

Such is the case with current liberals --- like Ginsburg.

BTW: Interestingly, the quote is from Dean Koontz. Who'd have thought?

BTW
Forgot to mention, great post.

The Constitution & Justice Ginsburg
One of the better reasoning's that law in America is based on our Constitution & not international law or precedent, came from a commentary I read the other day by a fellow named Jeff Jacoby. This also supports the notion that there is no need for a jurist to look at the Constitution to try to find reasoning to change legal interpretation. The constitution already provides a means to resolve the need for laws to change, but only based on the will of the people, not a jurist.

Jacoby said, "the whole point of putting the words in writing (the constitution) was to prevent fundamental change (judicial fiat), not to facilitate it. For the Constitution to say something new required an affirmative democratic act: an amendment (the will of the people)."

If Justice Ginsburg feels American law can be improved on by using some other precedent or even a law, then she too can take up the mantle and solicit that change through constitutional means. By allowing herself to render a ruling based on or influenced by other than American law or the Constitution, she imposes law by judicial fiat. The founders did not want that. The founders were in fact afraid of judicial hegemony & I believe they said so in documents like the "Federalist Papers."
Jefferson may have even expanded on those words. One of the founders used the phrase, "judicial tyranny."

Once we accept that the constitution is a living-breathing document, we tell all our law can now be ascertained at/by the whim of whomever has a degree of power in the legal system, at any moment in time.

I really hate to mention abortion because its such a divisive issue, but Roe was judicial fiat. Whether you agree with or oppose Roe, it is a decision that was not based on any Constitutional provision. The privacy issue many refer to in the Roe decision, is difficult or impossible to extract upon a reading of the Constitution, unless you decided to use a current cultural or societal needs argument to justify judicial fiat.

Proponents of abortion would be better served and have a greater footing in the law if they sought individual state laws that the Supreme Court would be obligated to uphold if they were Constitutionally sound. Precedent is always up for overturning. State legislated laws based on a sound constitutional basis, become much more difficult for a judge to overturn on whim or use of international laws. Individual state laws would mean a hodge-podge of laws from almost every state, but they will be laws the voters agreed to through their elected officials. The founders intended that voters, through elected representatives, would enact laws peculiar to their individual communities, states & federal government. Constitutional amendments were another method the voters could employ to change laws. Judicial fiat was never a method the founders intended to create laws.

The constitution will protect those state legislated laws. It cannot protect a precedent. A precedent is an opinion, not a law.

Create it
"The point is when they make ruling that there is little or no law currently on the books."

Then the judges create a law or right that did not exist.
It started with a birth control law in the 60s granting a right to privacy that does not exist in the Constitution.

genius vs. authority
Kierkegaard wanted genius to be in submission to authority, as Bishop Mynster exemplified (see Book on Adler). It parallels the way faith transcends reason; he was a Lutheran, you know, and Luther described reason as having a ministerial role in relation to faith. I recommend C. Stephen Evans' book Faith Beyond Reason: A Kierkegaardian account.

Anyway, Ginsburg may be a genius. But the point is that authority is indiffirent to genius. The activist judges try to set up their own genius against the authority of the Constitution, or to improve on its authority--they try to CORRECT it. But there is something deeply confused about trying to correct a document you think has authority over you. The only role for creative genius is in those who continually create the Constitution, not those who interpret it; that sort of genius belongs in Congress, and state government.

Give me any day a teenager with a high school diploma who knows just enough to understand the Constitution and is in the ethical posture of submitting to it. It is she who belongs on the Supreme Court. An ivy league law degree who is in rebellion against the Constitution does not belong on the Supreme Court. Of course, the ideal is an ivy leauge law degree who is not in rebellion--Rhenquist.

Tend to disagree somewhat
A law degree is a qualification for nothing.

Millard Fillmore was 15 years old when he argued his first case before the court. They had to provide a box for him to stand on because he hadn't had his "growth spurt" and couldn't be seen from the bench. He worked as a clerk in a store and stayed up nights reading the law.

Harry Truman never went to college --- had just a high school diploma. (The only modern president not to go to college.) The first office he ran for in Missouri --- JUDGE.

If it is true that there are more law students in law schools today than there are practicing lawyers, what does that tell you? That you don't have to be of superior IQ to get into law school --- or graduate therefrom.

Lawyers, in general, have taken the law away from its owners --- the people.

James Madison once wrote that no law should be so long or so complicated that the common man could not read and understand it. Congress is overpopulated with lawyers. Have you ever read any of the bills they write? Or how about the 50,000 page federal tax code? How long do you think it would take to read, let alone understand in its entirety?

Judges and courts have created so many rules that they provide nothing but job security for attorneys. As a result, any relationship between justice and our court system is purely coincidental. Lawyers and courtzs are no longer interested in results, in justice, just the process and appearance of justice.

What we need at the bench, at all levels, are people with common sense and a decent education other than in law. Let them know the laws and apply them rationally, not modify them by silly rules and by the creation of law.

And for God's sake (and ours) don't elect lawyers to Congress and legislatures. Davy Crockett may not have been the greatest congressman Tennessee has ever seen, but at least he was plain-spoken and you could understand him.

Blame Ginsburg? The court is the bystander, blame congress and the president.
Face it, the court can rule on any topic it wants. There are not many restrictions in the Constitution on the court. The real limits to the court are that it can not enforce laws, spend money or levy taxes. The other branches do this.

The federal government consumes 25% of GDP (and receives 20% interestingly enough) and has gotten itself into every facet of American life. So the court has willingly accompanied the other branches of government and increased it dominion over the citizens as well.

If you cut back government you cut back the court.


RE: Nothing about this is unconstitutional. - THE BIG LIE!
"From what I have read, a Judge can make a ruling (after the law) for what ever resone he wants."

Judges can do whatever they want only if the judge ignores Article II of the Constitition that says the Legislature passes laws to be signed by the President and Article V that specifies the process of changing the Constitution, which makes no mention of the judicial branch of government.

We have tolerated judges overstepping their authority that we think it is the the way things are supposed to be.

I have resolved to no longer vote for any legislator who will not commit to vote for impeachment for any judge that thinks they can make laws.

No objections, kgkphd
--Mark

TheBigR - Do you read what you write?
"Do we realy have any business saying how a Judge can make a desision?

Should this be a free expresion of thought? If it shouldn't then what should bind a Judge?"

If noone has any business telling judges how to make decisions, then why not just change their titles to "dictators"?

How about the novel idea of judges following the Constitution?

So many people like to say "the President is not above the law!" Well, neither are judges, congressman, and senators!

If a law doesn't exist...
If a law doesn't exist, then it is the legislature's responsibility not the judiciary's responsibility to pass new laws.

The Constitution
Actually, the Constitution DOES NOT give judges the power that you state. The power to rule on the Constitutionality of laws was created BY THE JUDGES THEMSELVES, and is NOT granted by the Constitution to them.

-Bob

Case in question
The case in question was a TX law that was accepted by the court. The court had the option not to accept the case.
But I agree the feds have taken more control since FDR stacked the court.
Maybe the court will now start to dismantle the welfare nanny state? I can dream.

Well said
"I can only thing of two likely reasons reasons any American would dream of transgressing the text of our authoritative document. One is stupidity, and the other is rebellion. I assume that most of our activist judges are not stupid; if they have a problem submitting to the authority of the Constitution, they should be honest about it."

When judges exceed their authority, they are in rebellion against the Constitution.

There is no substantive difference between a judge changing the law by judicial fiat and a general staging a military coup. Both should get a firing squad!

REALITY
Judges should bind themselves to reality and reason and put the individual first -- RIGHTS first! That's what!

Actually ---
Actually, FDR only TRIED to stack the Supreme Court. He failed.

The day after his re-election in 1936 --- coming in with a landslide victory --- the SOB thought he could get away with anything. Actually, he expected the landslide win and had been planning the Supreme Court stack for months before --- but not telling anybody about it.

On the day after Election Day, he presented his plan to the Senate, expecting it to be a fait accompli. WRONG!! The role of the Senate with regard to the Executive Branch is to ADVISE and consent. FDR pissed off the Senate enormously. Not obly would they not give him his Supreme Court stack, for the remaining years of his presidentcy, he could not get a single domestic bill passed through Congress. The Senate always log-jammed it.

The real power of the Supreme Court came under the Johnson administration, with the appointment of activist judges. (I can't remember at the moment if Truman had any opportunity to nominate any judges.)

Forget ANYBODY doing anything about the welfare state (another screwed up Johnson legacy). GAO study after GAO study has demonstreated the ineffectiveness of these programs --- like HeadStart --- but nobody has the balls to go after them because the Kennedys and Kerrys and Pelosis of the world will be calling the *****.

Send a Message
I think somebody at TCS should send this string of comments to the Supreme Court --- especially Ginsburg --- and maybe they will get an inkling. Maybe.

Lets review
We are talking about cases where some legal action is requested. If there is no real law to refere to, is a Judge simply to give up, rather then make a ruling?

Good Grief!
We are talking about cases where there is law --- not some legal vacuum. The Supreme Court is called upon to interpret existing laws within specifically appealed cases. They do not hear evidence. They hear argument based on the application of existing law. Foreign opinions have no place here.

Then you impeach them
Of course Judges are not above the law. This is part of the discussion. What is being discussed is the philosophy of how Judges make a ruling. Whether they think forieng law is valid or not doesn't have anything to do with it.

THey are allowed by the common law and the Constitution to make a ruling anyway they want. If there is a problem with that rulling then appeal or Impeach them.

I don't see a problem....

Simple minded
TheBigR talks about impeaching a Supreme Court Justice as if it's as easy as buying a Big Mac. Try looking into what it involves and then make that suggestion.

Oh ok. I am bad. Wasn;t even thinking supream
But it is still LEGAL to make reference to foreign law is it not?

I mean I find it distasfull and even though I am liberal don't like RoevWade (Although perhaps the 9th amendment might be invoced)

TCS Daily Archives