I am troubled by a growing tendency to rely on the laws and judicial decisions of foreign nations in interpreting the United States Constitution. This is problematic for at least two reasons.
First, it is anti-democratic. Foreign judges and legislators are not accountable to the American people. If our courts rely on a foreign judge's opinion or a foreign legislature's enactment, then that foreign judge or legislature binds us on key constitutional issues.
Second, reliance on foreign law in constitutional interpretation is unworkable. There are 191 members of the United Nations and even more judicial systems, all operating with different substantive laws. If an American judge wants to find a law consistent with his or her personal opinion, it can be found. Chief Justice Roberts in his confirmation hearing compared this to looking over the crowd and picking out one's friends. As a practical matter, it may be impossible for even the most conscientious judge to avoid being arbitrarily selective in the use of foreign law.
The same analogy Chief Justice Roberts used to question reliance on foreign law has been used by certain Justices and others to caution judges against ignoring a statute's plain meaning based on a claim that the text does not reflect the legislative intent. Congress, a democratically accountable branch, expresses its will through the words that Members of Congress ultimately agree upon after negotiation and then present to the President for his signature. That is the process set forth in the Constitution, and Congress should be held strictly accountable for the words they use in a statute. After all, the words of statutes are all that ordinary Americans have to measure their conduct against.
If the statute's text turns out to be inconsistent with the legislative will, Congress can amend the statute. But for judges to ignore the statute's plain meaning and look instead to legislative history invites the same type of picking and choosing of supportive statements that makes reliance on foreign law so fundamentally anti-democratic. The temptation is to seize on a bit of legislative history consistent with one's personal policy preference. When a judge gives in to that temptation, he or she undermines the legitimacy of the judiciary and moves us further from a government of, by, and for the people.
I can understand looking at foreign jurisdictions in interpreting statutes that implement international obligations. After all, the US and the foreign statutes are derived from the same source. But it strikes me that the Constitution is different.
LGF points to a transcript of an interview with Ahmad Rami, head of Radio Islam in Sweden:
Europe in general [has "great respect" for Jihad]. Sweden's greatest author, Jan Myrdal, said to me: "You Muslims may need our support, but we need your Jihad. Otherwise, whom will we support?' If there is no Jihad and resistance, who will the free people in the West support? There are free people in the West."
Who are the criminals in Iraq? The occupiers murdering and robbing the Iraqi people or the resistance fighting pro aris et foci and killing the occupiers? It is not for us in Sweden to decide what forms are correct. But in principle I want to say that the only good member of the US Marine Corps in Iraq today is a dead one in a plastic bag being shipped back home. Of course if he deserted and asked for asylum in Sweden or any other country outside the coalition of the willing he would prove that he was honorable and not a criminal and we all would do our best for him.
I'll say this for him - at least he's clear as to which side he's on. But my preference is for more Marines, fewer terrorism cheerleaders.
I'll tell you what I find interesting about the whole thing. In my experience, people in Korea look down on marriages with non-Koreans (as defined by ethnicity, not citizenship). However, this tendency is outweighed, at least here, with the desire to be recognized on the world stage. See, for instance, this post by Jeff. Pretty interesting.