- The Washington Times - Wednesday, March 24, 2004

Supreme Court Justice Sandra Day O’Connor drew national attention to a developing judicial trend in October when she addressed the Southern Center for International Studies in Atlanta: “I suspect that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues.”

Legislators are rightly concerned over this disturbing phenomenon of considering foreign opinion and law as precedent for U.S. case law. To this end, the House Constitution Subcommittee of Judiciary will hear testimony on the “Reaffirmation of American Independence Resolution” today. The resolution states that the American laws should not be interpreted, in whole or part, by foreign judgments or laws, unless those laws have been incorporated into U.S. law by our own legislative bodies.

The high court has used international opinion in formulating its own rulings in a few much talked about cases: Lawrence vs. Texas, Atkins vs. Virginia and Grutter vs. Bollinger. In Lawrence, which struck down anti-sodomy laws, Justice Anthony M. Kennedy’s majority opinion cited a 1967 British Parliament vote repealing laws against homosexual acts and a 1981 European Court of Human Rights decision that those laws were in violation of the European Convention on Human Rights. In her concurrence in Grutter, Justice Ruth Bader Ginsburg affirmed the use of racial preferences in university admissions, noting that the International Convention on the Elimination of All Forms of Racial Discrimination temporarily allows for the “maintenance of unequal or separate rights for different racial groups.”

There are many reasons why we condemn the use of external law in interpreting the Constitution. John Yoo, law professorattheUniversityof California-Berkeley, and visiting scholar at the American Enterprise Institute, writes in a forthcoming law review article: “If foreign decisions were to become, in close cases, outcome determinative, or even were to trigger some type of deference, then they would effectively transfer federal authority outside the control of national government.” The Supreme Court is in danger of setting its own social and moral agenda, ignoring the will of the American people as reflected by the laws of our democracy.

As Justice Antonin Scalia noted in his dissent in Lawrence vs. Texas: “This Court … should not impose foreign moods, fads, or fashions on Americans.” For this reason, we recommend that the Reaffirmation of American Independence Resolution be considered by the Judiciary Committee without delay.

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