Creeping transnationalism
Here's a useful rule of thumb about international conventions, United Nations documents, and the findings of foreign courts: Anytime a judge cites one in an American court, something alarming is probably about to happen. The source of the alarm is usually that the judge has spotted some important "emerging world consensus" that requires him to defy the plain meaning of American law.
One example glares out from the Supreme Court's Grutter v. Bollinger decision prolonging racial preferences. In a concurring opinion, Justices Ruth Bader Ginsburg and Stephen Breyer cited the International Convention on the Elimination of All Forms of Racial Discrimination. Uh-oh. The convention endorses "special and concrete measures to ensure the adequate development and protection of certain racial groups."
Doesn't sound so bad. But when you translate from U.N.-speak to English, it turns out to mean that we need double standards: Nonwhites will be favored; whites will be disfavored. It won't last forever, though. Ginsburg and Breyer explain that this system, in the words of the convention, "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." So, whites will be unequal under the law only until exact group equality breaks out or until hell freezes over, whichever comes first. Two justices signed on to this?
Moods and fads. Justice Anthony Kennedy spotted another emerging world consensus in the Texas sodomy case. He argued that the court's 1986 decision upholding sodomy laws failed to take into account the views of a wider civilization. He also referred to a brief arguing that America must bring itself into line with modern western thought. I think sodomy laws are legally and morally unsupportable. But Kennedy's argument depends on selectively noticing nations that agree with him and ignoring the many countries and cultural traditions that don't. Justice Antonin Scalia's dissent made the obvious point: It isn't the Supreme Court's job to "impose foreign moods, fads, or fashions on Americans."
Justice Breyer is perhaps the court's most zealous advocate of finding legal answers abroad. In a case focusing on allowable delays of execution ( Knight v. Florida ), he said he found "useful" court decisions on the matter in India, Jamaica, and Zimbabwe. We're taking our legal cues from Zimbabwe? In a forthcoming book, Coercing Virtue, Judge Robert Bork writes that the Jamaica-India-Zimbabwe citation is "risible" and adds another sensible comment: If the views of foreign nations are relevant, they should be relevant to legislative debates, not in judicial interpretations of the Constitution.
On ABC's This Week, Justice Breyer said a challenge for the next generation will be "whether our Constitution [fits] and how it fits into the governing documents of other nations." There's a sense in which this is obvious. Globalization and mass immigration are highlighting clashes between judicial systems. But there's an alarming interpretation too: the suggestion that the U.S. Constitution may have to be adapted to foreign governing documents.
The background for this is that the legal elites of America and other western nations attend the same conferences and swim in the same intellectual waters. At the conferences, Americans are attacked as insular and parochial for not adopting new international or transnational standards. This pressure is not just to pull away from American law and the Constitution. Often it is also a push toward standards out of sync with American traditions of liberty. The European version of free speech is so frighteningly narrow that a major push is underway to criminalize criticism of homosexuality.
The courts of several western nations have interpreted their own constitutions in the light of international conventions and U.N. treaties. This is a dicey proposition because so many of these materials are produced by U.N. bureaucrats and powerful U.N. nongovernmental organizations with almost no democratic input. The NGOs--most, American--are predominantly far, far out on the cultural left. They specialize in producing nonbinding and apparently harmless documents, which they work to convert into explosive and legally binding texts that undermine national sovereignty and democratic procedures. This is not a system that deserves a nod of respect from Supreme Court justices.
This story appears in the July 21, 2003 print edition of U.S. News & World Report.
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