Wednesday, August 4, 2010

Dumb is the New Stupid.

I'm staggered by the monumental, breathtaking stupidity of this:
Nativism in American politics has become so rampant that it is considered scandalous in Republican circles for a judge to acknowledge paying any attention to foreign courts and their legal rulings. Justice Ruth Bader Ginsburg, one of the few prominent jurists to speak out against this trend in recent years, gave an on-the-money speech last week pointing out the xenophobia on recent display in the confirmation hearings of Elena Kagan.

At one point, Senator Charles Grassley, a Republican of Iowa, noted with scorn that Harvard Law School, where Ms. Kagan had been dean, required first-year students to study international law. Senator Tom Coburn, a Republican of Oklahoma, asked why Ms. Kagan thought it was acceptable to use foreign law to interpret the Constitution, which she retorted was almost never the case. Senator Jon Kyl, a Republican of Arizona, summed it up: “I’m troubled by it,” not because foreign law would create a United States precedent, but “because it suggests that you could turn to foreign law to get good ideas.”
Yes Senator, you could turn to foreign law to get good ideas.

Let's see, just off the top of my head -- the Magna Carta, habeas corpus, the French Enlightenment, Monica Bellucci -- these things all came from foreign places.

But it's the aggressively dishonest and asinine nature of these comments, delivered from people who presumably have a brain and know better, that really gets to me.

Since anyone with even a passing knowledge of our Constitution knows the nefarious "foreign" sources influencing its principles, you have to conclude that these comments reflect pure pandering to blind ignorance and xenophobia, a calculated "race to the bottom" that comes right out of Idiocracy.

You can read Justice Ginsburg's entire enlightened speech here.


Anonymous said...

I can't wait for Palin to get interviewed again

Shoot The Lawyers said...

The concept is being maligned on both sides of the ideological spectrum because it allows each side to interpret the other side's position in a self serving way. There is nothing wrong with reading foreign law for intellectual curiosity and to help understand the historic development of American law. The recent gun cases are a good example. On the other hand, when the court considered the validity of juvenile death penalty laws, it looked to foreign law. But be careful. Note they never considered Chinese law. And consider this. Suppose a state passed a law mandating the death penalty for adultery. The court might very well consider foreign law in determining the acceptability of such a draconian piece of legislation and conclude that the fastest growing religion in the world, radical Islam, allows such a punishment as well as Iran, Saudi Arabia, and many other countries of the world. So the rule cuts both ways. As Justice Scalia said, using foreign law to guide American jurisprudence is like looking over a crowd and choosing your friends. It is not fair to portray the opponents of this idea as a bunch of rural yahoos a la William Jennings Bryan in the Scopes trial.

South Florida Lawyers said...

STL, thanks for this.

I agree that cherrypicking foreign law sources to support a particular outcome is a valid criticism, and was planning on including that in the post, but thought it didn't quite fit.

But that criticism is about survey methods in reviewing foreign law, and not about whether one should ever engage in the enterprise in the first place.

Anonymous said...

STL is a republican asshole in 156 of 180 countries around the world, including this one. Pick and choose all you want and he is still a republican asshole.

Anonymous said...

Forget this. I'd like to race to Monica's bottom.

Anonymous said...

why are you surprised? republicans have now turned into xenophobic morons who aspire to the lowest common denominator. Lincoln and Eisenhower must be turning over in their graves.

swlip said...

STL said pretty much what I was going to say. I would emphasize that the issue often comes down to the degree to which we allow foreign law to affect fundamental, constitutional principles, such as interpretation of the First and Second Amendment, neither of which has a precise corollary in foreign law. And should we look to foreign law to determine what constitutes "cruel and unusual" punishment? And how do you prevent foreign legal principles from having a de facto veto power over the will of our own Legislature?

As STL says, be careful what you wish for.

Anonymous said...

"And should we look to foreign law to determine what constitutes "cruel and unusual" punishment?"

Cruel and unusual punishment is precisely the sort of thing on which foreign law is helpful.

Is it cruel and unusual among countries that we believe to be at the height of civilization (what we should be aiming for) to sentence someone to X punishment for Y crime?

Similarly, is it cruel and unusual in countries that we believe are hideous examples of intolerance and despotism to sentence someone to X punishment for Y crime?

If the answer to the first question is yes, and the answer to the second question is no, you have your domestic cruel and unusual analysis pretty much set.

Anonymous said...

"nefarious is the new evil."

swlip said...

Anon at 12:36 - All you do is underscore STL's Scalia reference; i.e., looking to foreign law necessarily involves picking and choosing which foreign law a judge should regard as informative or persuasive. One can note that a heinous murder gets you a max of 20-25 in many European countries, but that adultery gets you the gallows in a country like Iran (even if you're a mentally disabled, teenaged girl who was raped).

What's the criteria for choosing which one carries more weight, if any? Why are our own traditions somehow less informative than what happens in a court in Europe, or in Evin Prison in Tehran?

What conservatives suspect is really going on is that judges of the Ginsburg stripe are playing a game of picking and choosing among those foreign legal doctrines that lend credence to a desired result. Again, be careful what you wish for.

swlip said...

But that criticism is about survey methods in reviewing foreign law, and not about whether one should ever engage in the enterprise in the first place.

What's the distinction? If you don't have a defensible philosophy for how to choose and weigh sources of foreign law, how can you justify engaging in the enterprise in the first place?

Anonymous said...

swlip thinks our legal traditions stem as equally from Western sources as from Iran and we can't sensibly discriminate between the two. Good grasp of history.

Anonymous said...

Monica Bellucci = perfect.

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