Using Foreign Laws for American Precedents

One thing that has been bugging me lately is the recent practice of American judges to cite foreign laws to support decisions in American court cases. The most recent example of this is in the recent Supreme Court decision banning the use of the death penalty against anyone who commits a capital crime while under the age of 18. The Supreme Court cited references from court cases in Jamaica and Zaire in their reasoning. (I missed the memo when those two countries became bastions of human rights.)

Listen, there's nothing magic about the age 18. I'm only marginally less stupid now than I was then.

Now, today through Senator Corwyn's piece in National Review, I learn the Supreme Court is going to do it again:

"Today the Court considers whether to take yet another step down this path. The case involves the state of Texas, and I have filed an amicus brief asking the Court to respect its own precedents and to defer to the people of Texas in their administration of criminal justice consistent with the Constitution. The other side in the case argues in effect, however, that the International Court of Justice can effectively overrule a decision of the U.S. Supreme Court and of the Texas government. In Breard v. Greene (1998), the Court made clear that criminal defendants, like all parties in litigation, may not sit on their rights and then bring up those rights later as a stalling tactic. That basic principle of our legal system, the Court explained, is not undermined just because the accused happens to be a foreign national covered by the Vienna Convention on Consular Relations. Yet even this basic principle of American law may be reversed, after today's oral argument in Medellin v. Dretke.

"This is — to put it lightly — not how our legal system is supposed to work. To the contrary, our Founding Fathers fought the Revolutionary War precisely in order to stop foreign governments from telling us what our laws say. The Declaration of Independence specifically complains that the American Revolution was justified because King George "has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws." It was "We the People of the United States" who ordained and established a Constitution of the United States, one that includes a mechanism by which only "We the People of the United States" can change it if necessary. And of course, every federal judge and justice swears an oath to "faithfully and impartially discharge and perform all the duties incumbent upon me...under the Constitution and laws of the United States."

"I fear, however, that today some judges may be departing so far from American law, American principles, and American traditions, that the only way they can justify their rulings from the bench is to cite the law of foreign countries, foreign governments, and foreign cultures — because there is nothing in this country left for them to cite for support. What's more, citing foreign law in order to overrule U.S. policy is especially offensive to our constitutional democracy, because foreign lawmaking is in no way accountable to the American people."


What is it about the phrase "representative government" that the justices don't understand? Listen, if another country has a good approach to a legal issue and we want to copy it, fine. Introduce and pass legislation to that effect. It'll make Congress do something useful instead of designating a day for "National Bowling Ball Day" or some similar twaddle.

But short-circuiting Congress means short-circuiting us. And I have a problem with that.