Tuesday, July 14, 2009

No Resort to Foreign Law to Interpret the Constitution — 'That's a given' . . . Except When It's Not   [Andy McCarthy]

It's not the easiest thing for a simple white guy — at least this one — to keep up with a wise Latina, I'll grant you that.

Have a look at this passage from Collin Levy's excellent WSJ op-ed today on "Sotomayor and International Law." He [ACM - my apologies to Ms. Levy] She is quoting from a speech Judge Sotomayor gave to the ACLU of Puerto Rico a few months back, in which she applauded resort to foreign law in U.S. constitutional cases:

In Roper [v. Simmons], the Court drew on international criticism of the death penalty to buttress the argument that it should be prohibited for juveniles under the Eighth Amendment prohibition of cruel and unusual punishment. In Lawrence v. Texas, the court overturned a Texas statute against sodomy on the grounds that it violated due process. In his opinion for the majority, Justice Anthony Kennedy cited the European Court of Human Rights to show that the court's earlier decision in Bowers v. Hardwick was incorrect. In both those cases, Judge Sotomayor said, the court was using the foreign or international law to "help us understand what the concepts meant to other countries and . . . whether our understanding of our own constitutional rights fell into the mainstream of human thinking." [Emphasis added.]

Now, consider this assertion by the judge today in answering questions from Senator Schumer (just posted by Ed over at Bench Memos):

American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there's no issue about that question.

I think whether you're operating under the law of the United States or the law of Cameroon, that's called a contradiction.

07/14 06:09 PMShare