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Justice Ginsburg on use of foreign law
Here's a speech she gave in South Africa. Beginning is ... a bunch of framing era references to the fact that when construing international law, courts make reference to ... international law. Followed by a note that on an internet chat room somewhere, someone said that she ought to be offed for having used foreign decisions (heck, I've had the same said about me, for having attacked Mike Moore). And a reference to Dred Scott, which declined to consider foreign law (interesting, but the point being ...? That if you don't refer to foreign law, you're liable to issue racist rulings?)
Personally ... if a Justice wants to stake out a broad understanding of rights and liberties, they shouldn't be reading foreign caselaw. They ought to read the legislative history of our own 14th Amendment.
UPDATE: On the 14th Amendment, I agree that the leg. history shows VERY clearly that the purpose was to incorporate the bill of rights against the states, via the privileges and immunities clause (as opposed to the due process clause, the basis of modern "selective incorporation"). Prof. Michael Kent Curtis' book on the amendment (title slips my memory just now) is a solid demonstration of that. Prof. Amar makes a case for something less than 100% incorporation under this theory--a few bill of rights liberties may have been meant not so much as proclamations of liberty as of restrictions unique to the new government (i.e., civil jury trial for cases over $20 -- hard to see why a right would only begin at $20). The Supreme Court's rejection of P&I incorporation, beginning in the Slaughterhouse Cases, was intellectually dishonest, a word game played without any reference to the leg. history.
What particularly frosts me about that is that the 14th Amendment was meant to annihilate Dred Scott. The first section says that all persons born or naturalized in the US are citizens thereof and of their State. That wipes out Dred Scott's holding that free blacks could never be citizens of a State, and thereby of the U.S. So where did the framers of the 14th get the idea of "privileges and immunities" of a citizen of the US? That exact phrase is used in Dred Scott to describe bill of rights liberties -- to meet on political topics, and to keep and carry arms wherever they went. For the Supreme Court to play a word game and claim that privileges and immunities of US citizens meant something very narrow, and excluding the bill of rights, was the height of judicial dishonesty.
Comments
Dave - I know you spend a lot more time than I do on these issues than I do so I have a question for you. I have read the Senate debates on the 14th Amendment and I conclude from the language that the intent was to incorporate the Bill of Rights - i.e. make states subject to the US Constitution with respect to the rights there guaranteed. How do you come down on this subject - i.e. incorporation. It is pretty clear to me that prior to the 14th states didn't have to incorporate (at least in the case law, though I believe there is an excellent case to be made for that theory based on the text of the Constitution itself).
Posted by: RKV at March 16, 2006 10:18 AM