Sunday, May 14, 2006
Villainous Company On The Imperial Court
To me, the most important element in the Royal Fisk is this reminder:
American Bar Association President Michael Greco asked Ginsburg what lawyers could do. She said attorneys can speak up and "say these efforts are wrong." Judges, she said, cannot lobby on their own behalf.Let us not forget that Justices of the Supreme Court are human beings, and lawyers who must argue cases before them are as well. Isn't this just a wee bit coercive?
One of the issues drawing the unseemly fire of the Supreme Wenches was the issue of citing foreign law as precedent or a guideline. It ought to be obvious that such a deed is profoundly undemocratic, surely? Since Americans do not have any influence on foreign law, use of foreign law completely violates the spirit and intent of the Constitution, correct?
Let's not forget that the Constitution of the United States was revolutionary in the extreme when ratified. We are not merely a state in a broader western nation. We are unique and will sometimes require unique laws.
But maybe you're a Luddite?
But look at the difference in our laws. US-style freedom of religion and even of speech isn't the law of the land in most EU nations. I don't expect them to change their laws to fit ours, and I don't think we should change ours to fit theirs.
The Netherlands, for example, funds religious schools. Germany and the UK have religious classes in their schools. France, I believe, outlaws Scientology. I doubt Swedish-style socialism would work for the US, because of the much greater number of immigrants to the US. It doesn't mean that the Swedes can't make their system work given their unique society (although socialism does seem to be causing some trouble with assimilating immigrants in some European countries).
The best laws evolve to fit the needs of the particular society. Certainly laws reach for ideals, but they must be pragmatically functional as well.
Making rulings on US constitutional issues based on the laws of other countries is a very dangerous practice which subverts the basic concept of constitutional law entirely.
It's not as if we all started at the same place and then diverged. We started from different places, and in some ways we have converged - in others we have continued to diverge. I have no problem with the Supreme Court looking at the change in laws in various US states to see what the sense of "cruel and unusual" might be today.
But the Swedish concept of "cruel and unusual" is not relevant. Using the same logic would throw out many of our criminal penalties, which tend to be far more harsh than most European penalties. Perhaps you feel that would be appropriate, but the point is not what I feel is appropriate, or what you feel is appropriate, but what the majority of the US population deems appropriate. If that changes, then the basis of our democratic republic has changed in a very material and basic way.
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