Inside Poltics

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Law of the jungle

"What is going on here?" Robert H. Bork asks in National Review magazine.

"Justice Sandra Day O'Connor in a recent speech said that decisions of other countries' courts could be persuasive authority in American courts. At a time when 30 percent of the U.S. gross national product is internationally derived, she said, 'no institution of government can afford to ignore the rest of the world.'

"She is by no means alone on the Supreme Court. Six of that court's nine members have either written or joined in opinions citing foreign authorities. The most astonishing, or risible, so far was Justice Stephen Breyer's opinion arguing that he found 'useful' in interpreting our Constitution decisions by the Privy Council of Jamaica, and the supreme courts of India and Zimbabwe. Jamaica and India are far-fetched enough. But Zimbabwe -- the country devastated by the blood-stained dictator Robert Mugabe! We might as well learn our constitutional law from Saddam Hussein's Iraq or Fidel Castro's Cuba," said Mr. Bork, a former federal judge and nominee to the U.S. Supreme Court.

"Since the 1950s we have been in a third great period of constitution-making. Unlike the first two (1787 to 1791 and 1865 to 1870), this one is the work of judges, which achieves efficiency by cutting out the middlemen, the American people acting through their state conventions and legislatures. The efficiency gain is clear, but those hung up on technicalities complain of a lack of legitimacy. Justice Scalia commented on one of the Supreme Court's more imaginative improvements on the Founders' work: 'Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize.'

"Yet even Scalia at his gloomiest probably did not foresee that the new country might be designed bit by bit from European, Asian, and African models."

Targeting faith

The American Civil Liberties Union, in a new fund-raising letter, focuses its wrath on the left wing's all-purpose boogeyman, Attorney General John Ashcroft. But the letter also lashes out at President Bush's faith-based initiative.