Relying on International Law Instead of the Constitution

The U.S. Constitution, developed by some of the brightest and most able statesmen in the history of this world, is the supreme secular law of the land. Its carefully drafted text-with its careful concept of checks and balances and a division of powers-resulted from the efforts of brave men to limit the reach and power of government and to protect liberty. A cursory glance at the tremendous freedom and economic prosperity of America as compared to other nations-even many developed nations-should tell us that what the U.S. Constitution and its foundational principles have allowed are the envy of the world.

Even the Wall Street Journal took notice of this three years ago, reporting that in part due to their legal tradition the "U.S. and Britain have bigger stock markets and more shareholding citizens than Germany and France."

Foreign legal ideas from different legal traditions may be worth studying. But even if desirable they should only be adopted through proper channels of legislative deliberation and enactment. More and more often our judicial elite seem to believe the Constitution's foundational principles can be bent to an agenda to make our law look more like that of other nations. How being like other nations improves life in the U.S. is hard for many of us to see, but Supreme Court Justice Ruth Bader Ginsburg has openly advocated this position in her remarks to the American Constitution Society, when she derided our country's "Lone Ranger mentality." Other justices say we can't ignore the rest of the world and they are correct. However, diplomacy is the job of the State Department, not the judiciary.

If other nations want to adopt the legal infrastructure that makes America the economic destination of choice, great! But is it sensible to risk our progress for a gamble on judicial globalization? Judicial "transjudicialism" could very well make us like other nations in ways we won't like.

Foreign courts often cite U.S. courts when "life and liberty are at stake," which is the way it should be. Why should we, as the world's only superpower and as the leader of the free world, bow to adopting foreign legal precedents to interpret-or reinterpret-our law? Legal precedents have enough unforeseen results, and we have enough trouble with our courts interpreting our Constitution. Why go seeking fresh legal problems abroad?

If courts can amend the Constitution with the wave of a magic wand by selectively incorporating foreign law to reach their desired results, then they have too much power. God bless the memory of America's Founders who rejected other traditions of law of their day to create this, the best, most free and prosperous nation on this earth.

Alan Sears is President and General Counsel of the Alliance Defense Fund.

Copyright Human Events Publishing, Inc. 2004
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