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.
Last week, I introduced Senate Resolution 92, similar to a resolution introduced by Rep. Tom Feeney (R., Fla.) last month. It expresses the sense of the Senate that judicial determinations regarding the meaning of our Constitution should not be based on the judgments, laws, or pronouncements of foreign institutions, except where such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of our Constitution.
28 March 2005
Foreign Influences (Update)
Texas Senator John Cornyn weighs in today in the National Review concerning the growing influence of foreign laws upon American judges, a topic on which I previously wrote. Cornyn is a former state attorney general and state supreme court justice, and has filed an amicus brief in the Medellin case argued before the Supreme Court today. Noteworthy paragraphs from his essay: