The title of Justice Ginsberg’s speech which I mentioned in my previous post is "’A  decent Respect to the Opinions of [Human]kind’: The Value of a Comparative perspective in Constitutional Adjudication.”  This title is an allusion to the very first sentence of our Declaration of Independence: “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation (italics added).”

Justice Ginsberg finds some precedent for her “comparative perspective” in the fact that the Declaration expresses a concern for attention to the good opinion of foreign nations.  She would have us to believe that in paying attention to foreign law, and using such to interpret and apply our own, judges do no more than what the Declaration does.  It occurs to me that she overlooks certain distinctions, distinctions which are important and are  made by our very Constitution—the one she has sworn an oath to protect and defend.  I am referring to the distinction between the legistlature and the judiciary, specifically what sort of acts they each may perform, and not perform.

First, she overlooks the fact that the Declaration which evinces this concern for the opinions of other nations, was a legislative act, not a judicial one.  The people, through their representatives in the Continental Congress, expressed this concern and acted upon it by the act of the national Congress.  At the very top of the document one reads: “In Congress, July 4, 1776.”

Second, she seems not to take due note of the fact that the very Declaration which expresses this concern for the opinions of foreign nations, in cataloging the grievances against the King of England, includes among those grievances that, “He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation…. (italics added).”  It is interesting (is it not?) that Justice Ginsberg takes a theme from our Declaration of Independence to justify her (and her fellow travelers’) desire to “subject us to…jurisdiction[s] foreign to our Constitution and unacknowledged by our laws.”  (It is just this sort of selectivity that Justice Scalia criticizes: judges who apply foreign law apply only that body of foreign law which agrees with the position they have already taken!  Here, Justice Ginsberg does it with one of our founding documents!)

Third, she seems unaware of the fact that there is a difference between concern for the opinions of others, and applying the laws of others.  In expressing a concern for “the opinions of mankind” the Declaration does not adjudicate any matter before any court.  It does no more than to express the desire that anyone in the world who may care to know, should know that the reasons behind the revolution were given by the unlawful acts of the King of England.  It is not as if any contrary opinion held by “mankind” would have constituted a veto.  “Mankind” had no vote in the Second Continental Congess.  And I see no reason to give “mankind” a virtual seat on any of our courts.

Fourth, she overlooks the distinction between giving instruction and receiving instruction.  Justices Ginsberg, Breyer, Kennedy and o’Connor, speak of foreign law as instructive though not binding.  But in publishing the facts of the case “to a candid world” the colonists in revolt against the Crown were not seeking instruction; if anything they were giving it.  “These are the reasons,” they inform the world.  They do not—notice!—turn round and ask the candid world, “What do you think?”  Had that candid world stood up in mass and said in unison, “You really should not revolt!” does anyone suppose that any of the colonists would have said, “Wait fellas.  The world has an opinion on this issue we’re struggling with and though it isn’t binding, we really need to pause and consider it”?

Patrick Henry, I’m certain, would have said, “Screw the world.  I still say, ‘Give me liberty or give me death’!”  (Or words to that effect, I’m sure.)

The same Declaration which Justice Ginsberg applies in error, also claims that governments derive "their just powers from the consent of the governed."  We may, from time to time, want to look around the world to see how they address certain issues.  But it isn’t for judges to decide that we, the people, want or need this instruction.  For them to make that decision is to (let me see now, how would Jefferson put it?) “subject us to…jurisdiction[s] foreign to our Constitution” without our consent, as expressed through our representatives in Congress.  Thus another distinction that Justice Ginsberg overlooks: that between representatives and judges, a distinction made very clear in that document which she is supposed (a) to be a master of and (b) to protect and defend; I mean the Constitution, of course.

Tags for this post:  Justice Antonin Scalia, Justice Scalia, Justice Ruth Bader Ginsberg,  Ruth Bader Ginsberg,  judges, judicial tyranny, tyrants, constitutional interpretation, originalism, living document, frozen-in-time interpretation, Declaration of Independence, Thomas Jefferson, Patrick Henry.