- The Washington Times - Wednesday, July 1, 2009


Sen. Jeff Sessions, Alabama Republican, explained well why judges must not use foreign laws to interpret the U.S. Constitution (“Our laws, not foreign laws,” Opinion, Tuesday).

When Supreme Court justices take office, they take an oath that includes these words: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States.” This Constitution, which the justices have bound themselves to defend, is not anything a justice says it is - any more than an ordinary criminal might claim that, by his own interpretation, he didn’t violate the law.

The Constitution is a document with specific and binding words, and the words are relatively clear, even common sense. A specific word may become obsolete over time, but its meaning is never obsolete.

The same Article VI that requires the justices to “support this Constitution” also declares that “This Constitution” - plus U.S. laws and treaties - are “the supreme Law of the Land.” This article forbids justices from following any foreign law instead of the Constitution and U.S. law exclusively. For a justice to follow the law of any foreign country is to violate the oath by which the justice is bound. The majority opinion in the case of Roper v. Simmons, mentioned by Mr. Sessions, is a good example of such a violation.

It is no answer to claim that there are different “theories” of constitutional interpretation. Of course there are. It is even less of an answer that the Constitution must apply to “the times.” Of course it must. The question is whether adhering to foreign law instead of to the Constitution’s own provisions is an impeachable offense.

Senators and congressmen also bind themselves by a similar oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Senators therefore have a duty to ensure that nominees whom they vote to confirm take their own oaths seriously.

It would be worthwhile for Mr. Sessions and others to walk Judge Sonia Sotomayor and every judicial nominee through a series of questions to test how well they understand that their official oath prohibits them from following foreign laws when deciding cases.

It would be worth learning whether Judge Sotomayor believes that adhering to other countries’ laws is an offense for which a justice can be impeached. It also would be invaluable to remind all citizens and officeholders that we owe a moral debt to the Constitution that has made us, in Mr. Sessions’ fine words, “the freest nation on Earth.”



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