Avoid the dreaded siren song of foreign law
March 22, 2005
SCOTTSDALE, Ariz. (BP) – “The Sirens, they say, had maidens’ features…. They played the flute, lyre and sang. The isle where they lived was full of the mariners’ bones they had led to destruction. It was foretold the Sirens would die when a ship passed them unharmed. Only Odysseus, bound to the mast, heard their lovely song and lived, while his shipmates whose ears were filled with wax sailed on.” (Greek mythology)
The sirens are singing a seductive song about international law. It appears several of the justices on the United States Supreme Court hear the song of the sirens. Do you hear it, too?
The ACLU does and has been pushing for more foreign invasion of American jurisprudence through national conferences and litigation advocacy. After the Supreme Court’s decision March 1 in Roper v. Simmons, which invoked foreign law in interpreting the Eighth Amendment, the ACLU praised the move, saying in a statement, “It is worth noting that six members of the Supreme Court … expressly upheld the relevance of international law and practice in determining [how to interpret] our own Constitution.”
What is the point of interpreting the U.S. Constitution and law with legal precedents from other countries, many less prosperous and less free than our own?
America’s freedom and prosperity surpass most of the world’s in great part because of our legal framework. Our institutions are built on the English common law tradition and its protections for life and property, while many of the other countries generally follow the Roman law tradition, with its accompanying belief in powerful government.
Yet the ACLU trumpets support for international law, which is often at war with, or conflicts with, our Constitution. The ACLU and its allies want America’s judges to hear even more from the sirens and foreign legal traditions and to become enamored with “evolving standards.”
If you believe the written Constitution — with a fixed and definite meaning — is the supreme governing legal document in our land and that the opinions of foreign courts and governments and decrees from the United Nations should seldom hold sway to interpret what our federal Constitution means, or ought to mean, then beware the siren song and the approaching dangers ahead for marriage, the family and many other legal issues.
A growing number of judges at all levels have seemed enchanted by the power of an untouchable appointment for life and have lingered near the alluring song of the sirens, apparently believing great good will come from even more activist agendas. The Supreme Court Roper decision, another blatant affirmation of the insertion of foreign and international law into American jurisprudence, confirms that the song has begun to intoxicate even the highest court in our land. Without firmly grounded worldviews, beliefs in higher law, or a fixed view of truth, some of these jurists seem to have no crew on their ships to restrain them from their destructive course.
And what is going on abroad that’s so attractive? Even if we ignore the purely totalitarian states, it isn’t so pretty.
A brief look north reveals Canada’s C-250 legislation, which criminalizes as “hate speech” nearly any speech that is critical of homosexual behavior. The measure has a feeble religious exemption, but it places the burden on individuals to prove they are exempt from prosecution.
In Sweden, a pastor received a one month jail sentence last year under a Swedish “hate crimes” law that also forbids criticism of those who participate in homosexual behavior. The pastor’s crime? He preached against homosexual behavior from his pulpit in accordance with his religious beliefs. He eventually was acquitted, but the arrest and ensuing ordeal he went through cannot be erased from history.
Not surprisingly, Supreme Court Justice Ruth Bader Ginsburg, the ACLU’s former general counsel, ruled with the majority in the Roper decision. She forecasted her leanings back in September 2003 when she told a group of university students in Moscow, Idaho, that our nation’s “island … Lone Ranger” mentality is “beginning to change” and that Supreme Court justices should seek extra-national opinions to help form theirs. She said, “We are the losers if we do not … learn from others.”
Our nation’s strong history of “Lone Ranger” legal independence — which is what helped make our nation great — is not the problem, though some other justices may also seem to think so. Justices Anthony Kennedy and Stephen Breyer have made equally provocative statements about the importance of U.S. courts learning from foreign ones. Even Justice Sandra Day O’Connor, though siding with the minority in Roper, wrote, “I disagree with Justice [Antonin] Scalia’s contention … that foreign and international law have no place in our … jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency.”
It’s especially scary to read Justice O’Connor’s words knowing that a “friend of the court” brief filed in the case by a group of Nobel Prize recipients, including former communist and Soviet Premier Mikhail Gorbachev, asserted, “This Court should consider the opinion of the international community…. That opinion is exceptionally relevant when determining whether such a practice contradicts ‘evolving standards of decency that mark the progress of a maturing society.’ This Court historically has considered internationally accepted standards of human rights and decency, and especially should consider international standards in this case.”
So much for the text of the Constitution.
And so the siren song continues. No matter how lovely the song seems, no matter how sweet the tune, following that song will mean crashing upon the jagged rocks of international law, and we, along with the Constitution and our nation’s legal heritage, may well be shipwrecked. (Alan E. Sears is the president and CEO of the Alliance Defense Fund, a legal alliance defending religious liberty through strategy, training, funding and litigation, on-line at www.alliancedefensefund.org.)