Liberally Conservative

"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free....... ~Ronald Reagan~

Saturday, March 18, 2006

Ruth Bader Ginsburg...Judiciary with a Global Test

It's no story of fiction (or science fiction) when a Supreme Court justice is upset about conservatives who believe in the U.S. Constitution. Ms. Ginsburg, like John Kerry, believes in the "Global Test" theory, checking in with Europe and other foreign countries when making decisions for America.
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In this case we're discussing laws of the United States and our Constitution and Ms. Ginsburg want's to use foreign laws in constitutional rulings. She even complains in a foreign country, giving a speech in South Africa.
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Ginsburg, addressing an audience at the Constitutional Court of South Africa on Feb. 7, criticized various Republican-proposed House and Senate measures that either decry or would bar the citation of foreign law in the Supreme Court's constitutional rulings. "Conservatives often see the citing of foreign laws in court rulings as an affront to American sovereignty, adding to a list of grievances they have against judges that include rulings supporting abortion rights or gay rights," concludes the liberal Ginsburg.
Though the proposals do not seem headed for passage, Ginsburg said, "it is disquieting that they have attracted sizeable support. And one not-so-small concern -- they fuel the irrational fringe." So if we support non-activist judges, like Ms. Ginsburg, we are fringe dwellers.
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On the Supreme Court web site, Ms. Ginsburg cites South Africa's 1996 Constitution famously provides in Section 39: "When interpreting the Bill of Rights, a court . . . must consider international law; and may consider foreign law." Other modern Constitutions have similar provisions, India's and Spain's, for example.
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In the United States the question whether and when courts may seek enlightenment from the laws and decisions of other nations has provoked heated debate. I will speak of that controversy in these remarks. At the outset, I should disclose the view I have long held: If U.S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the U. K. - now engaged in measuring ordinary laws and executive actions against charters securing basic rights.
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Ginsburg fails to understand her constitutional (U.S. Constitution) obligation to interpret laws of the United States, not make her own law or provide opinions based on foreign law.
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Justice Ginsburg continues, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred-up majorities. National, multinational, and international human rights charters and courts today play a prominent part in our world. The U.S. judicial system will be the poorer, I have urged, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.
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What does the former ACLU attorney mean by, "stirred-up majority" and "oppressive government?" In her speech Ginsburg claims to have been threatened by a "fringe" group on the internet. Does this constitute a majority? Does she object to freedom of speech? She only objects to conservative and federalist views!
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Ginsburg singles out "conservatives" and finds fault with their freedoms when they don't agree with her leftist leanings. She feels "threatened" by disagreement with her views, becomes accusatory and calls the majority a "fringe" group. Therefore, we need to seek foreign law to uphold the U.S. Constitution and her opinions.
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Ginsburg, completely enamored by the South African constitution continues. While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution reversed the Dred Scott judgment, U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed spirited opposition.
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Ms. Ginsburg moves on to quote conservative Justice Scalia who counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decision making, but sophistry."
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We find it perplexing Justice Ginsburg would quote Scalia as a premise to disagree with his logic, which asks us to follow our laws. This is simply part of the misguided liberal thought process. They look at America as evil and other countries as "promising" bastions of democracy. She cites The Federalist Papers, John Jay and others, parsing their words when it follows her beliefs and determines any justice in disagreement with her views as "extreme."
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On the Supreme Court, Justices John Paul Stevens, Anthony M. Kennedy, Stephen G. Breyer and David H. Souter back Ginsburg’s view, to one degree or another. Ginsburg's views are strongly opposed by Justices Antonin Scalia and Clarence Thomas. The court's two newest members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet written opinions in cases involving foreign law, but both voiced objections to its use at their confirmation hearings.
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It's Justice Ginsburg who remaims misguided and "extreme." Anyone sitting on a court in the United States should interpret this country's laws and refrain from seeking guidance outside it's borders.
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Many current members of the U.S. Congress wish to terminate all debate over whether federal courts should refer to foreign or international legal materials. Ginsburg states for the most part, they should respond to the question with a resounding "No."
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Two identical Resolutions reintroduced last year, one in the House of Representatives and the other in the Senate, declare that "judicial interpretations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such [materials] inform an understanding of the original meaning of the Constitution." We agree with a resounding "YES!"

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