Juridics: Constitution: US Supremes want 'foreign sources of law' to alter American law heritage
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An important study is available online in an abstract from the Social Science Research Network [SSRN], "The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision," by Steven G. Calabresi. To give readers of refWrite a taste of the meatiness (or: if you're vegetarian, the brocolliness) of the question of 'foreign sources of law' for interpreting the US Constitution (without looking into the example of the decision on the juvenile death penalty other than as an example), I offer a samplar from Calabresi's abstract:
The legitimacy of citation to foreign sources of law generated comment in all three of the Supreme Court opinions written in Simmons v. Roper, the landmark case that recently struck down the juvenile death penalty. Justice Kennedy's majority opinion and Justice O'Connor's dissent in Simmons, both argued that foreign sources of law can in fact be relevant to issues before the Court, even though they ultimately reached different conclusions as to the constitutionality of the juvenile death penalty. In addition, Justice Scalia's dissent, joined by Chief Justice Rehnquist and Justice Thomas, forcefully declared, as Justice Scalia has repeatedly done in previous Eighth Amendment cases, that international law and opinion is not relevant to the Court's constitutional adjudications, even when it is used simply to provide evidence of the validity of the Court's opinion.I haven't myself absorbed all the implications of the issues involved on the central question; I'm more or less prejudiced to think a juvenile death penalty should be used only rarely, and I certainly tend to look favourably on the school of strict construction and what is called 'originalism' in Constitution interpretation.
Justice Kennedy's majority opinion in Lawrence v. Texas, which declared unconstitutional state laws prohibiting homosexual sodomy, in part, by considering decisions of the European Court of Human Rights, brought the issue of the Supreme Court's consideration to center stage. But, Justice Kennedy's opinion in Simmons stands to move the debate to an even higher level of attention and importance. By citing foreign sources of law as further support for the Court's own views of what punishments violate the Eighth Amendment, the Simmons Court showed what may be at stake in the outcome of this debate between the six liberal justices and the three conservatives led by Justice Scalia. The depth of the support for citing foreign sources of law suggests that the movement to do this is just beginning and will only gather force over time. In the wake of Simmons, the debate on the Court is no longer over whether to cite foreign sources of law but over when and how to cite them. This portends a sea change in the Court's doctrine.
Having said all that, while being dubious of the 'penumbra' and 'aura" argument used by the Supreme Court majority to launch 'the right to privacy' which simply isn't in the text of the Constitution, thus becoming foundational law for the USA to solve many issues extra-Constitutionally. That is, settling issues by law-making on the part of the judiciary, because the Constitution only insufficiently provides any basis, if at all, for many sweeping claims to rights that really turn on an extra-Constitutional ideology of the individual. Now, I think there's much good, as well as much bad, in this whole trend; but I don't like to go into denial to pretend with the main mindset in American jurisprudence that certain kinds of laws cannot be made by various state or federal juridistictions.
To my mind the whole appartus of esoteric interpretation required to strike down the Texas sodomy law, for instance, was fictional, not based on Constitutional provisions, but essentially more just than allowing Texas to continue with its absurd and unequal criminalization of adult consensual non-adulterous sex-acts within a private domicile. I agree with Canada's former Prime Minister, "The state has no business in the bedrooms of that nation" - except if one of the two parties is absued, injured, or murdered in the context of this adult conssensual sex (whether anal or non-anal, whether strait or homo).
But to hold both attitudes at once puts a conscientious American in the position where the Constitutional value stands in opposition to the reasonable privacy principle I feel strongly is part of natural justice. But a judge is not free to make up his/her own Constitution, not free to establish preedents arguing from 'penumbras' or 'auras,' to my mind. I don't see a way out of this dilemma of juridics without a constitutional amendment with a text so-well crafter that privacy emerges as real but not absolute.
Of course, becoming aware of flaw in American jurisprudence where it cannot square with a normative juridic philosophy based on the USA Constitution, gives impetus to the current argument among the Supremes whereby on one side would conveniently forget the American Constitution and its demanding amendment process–and turn instead to rely on whatever can be whacked out of the pinata and adjudged suitable.
Well, the preceding metaphor is somewhat heavy-handed, I do realize, especially when I consider the Canadian situation–where it's not the juvenile death penalty that interests, but where the study by Laurent Moss which refWrite posted yesterday from Monsieur Moss' Le blog de poloscopique in which 'foreign law sources,' particularly from recent developments determining the rules for the upcoming referendum regarding the possible independence of Montenegrao in withdrawing from its present Federation with Serbia.
On the question for Canada of how much of a majority should be required should Quebec again hold a referendum on separation to establish its independence as a state distinct from Canada, the foreign sources of law are very tempting because the previously canonical idea (customary and not constiutional) was that Quebec would leave the Canadian confederation should the Yes vote for independence reach 50% + 1. The most glaring feature of this folkloric norm is that it would leave Quebec society so divided, with so small a margin carrying such a large consequence for the entire Quebec general community, that such a win could prove to be a disastrous loss on wich to launch a newly independent state.
The question of the use of foreign sources to settle huge issues of the foundationa of the entire legal system needs really careful future thawt, case by case, as different casess may require quite dissimilar decisions about the value of specific 'foreign soursces." - Owlb
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