Neumayr, George, The American Spectator
BEFORE HIS POLITICAL ANTENNAE WENT UP, John F. Kerry would brag that foreign leaders were celebrating his candidacy. Unnamed foreign politicians told him privately, "You've got to win this. You've got to beat this guy. We need a new policy," Kerry said.
Perhaps Kerry could add to his list of foreign admirers another constituency abroad: foreign judges. They too would benefit from an internationalist Kerry administration.
Judges from Denmark to India already enjoy an alarming influence over American jurisprudence. American judges fawningly cite their liberal opinions as justification for their own liberal rulings. If Kerry, a supporter of such judicial freewheeling, wins, the use of foreign jurisprudence and foreign opinions in American courts will likely increase.
Reliance on foreign jurisprudence is the latest evolution of America's culture of judicial activism in which judges frantically search for rationales to legislate from the bench. What was an unthinkable affront to American sovereignty is now almost routine. The same Supreme Court judicial activists who won't turn for guidance in interpreting the U.S. Constitution to the Americans who wrote it will turn to foreign judges for inspiration. Far from concealing this practice alien to American history and custom, Supreme Court justices openly acknowledge it, to a degree the American founders would find shocking.
Without irony, Ruth Bader Ginsburg used a speech last August before the American Constitution Society to promote the reading of the American Constitution in the light of non-American opinions, judicial and otherwise. "Our 'island' or 'lone ranger' mentality is beginning to change," she said. She noted with disappointment the infrequent citation of the United Nations declaration of human of rights in Supreme Court decisions. But the justices and the American legal culture in general, she said, "are becoming more open to comparative and international law perspectives."
"Today, tools are readily at hand to pursue international and comparative law inquiries," she said. "The Internet affords access to foreign judicial decisions, law journals contain all manner of commentary, course materials are well packaged."
She predicted that the justices who resist this internationalist analysis will become anachronisms. "Justices identified as today's originalists adhere to the view that comparative perspective, though useful in the framing of our Constitution, is inappropriate to its interpretation," she said. "Partisans of that view sometimes carry the day in our courts. I anticipate, however, that they will speak increasingly in dissent."
Sandra Day O'Connor has said that she and her colleagues "will find ourselves looking more frequently to the decisions of other constitutional courts." Stephen Breyer agrees, and has even gone as far as to imply that the future role of the Supreme Court will be to make the U.S. Constitution compatible with foreign constitutions.
"We see all the time, Justice O'Connor and I, and the others, how the world really-it's trite but it's true-is growing together," he said. "Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people....And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations."
Anthony Kennedy's majority opinion in Lawrence v. Texas last june, which carved out a constitutional opening for same-sex marriage, rested in part on a 1967 vote in the British Parliament in favor of legalizing homosexual acts and a 1981 European Court of Human Rights ruling that those acts are enshrined as rights under the European Convention on Human Rights. In explaining his ruling, Kennedy said that "the right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. …