Post by sclcookie on May 31, 2006 2:09:24 GMT -5
Should the U.S. Supreme Court refer to and cite foreign and international law in its decisions?----Yes: Foreign precedents often have guided high court in its rulings
Supreme Court Justice Ruth Bader Ginsburg reports that she and retired Justice Sandra Day O'Connor received death threats because they have referred to foreign law in Supreme Court decisions.
As Ginsburg relates, a posting on an Internet chat-room urged readers to kill the 2 judges, saying that they use foreign laws and rulings to decide American cases. The posting proclaimed: "This is a huge threat to our republic and constitutional freedom."
The person who posted the threat was apparently angry over two recent capital punishment cases, where the court has had to figure out what the Bill of Rights means when it prohibits "cruel and unusual punishment." The cases were about capital punishment inflicted against juveniles and against the mentally retarded.
In both, the court found capital punishment "cruel and unusual," based on its reading of our Bill of Rights. In support of that conclusion, the judges -- and not just Ginsburg and O'Connor -- said that international opinion is also negative on the death penalty for juveniles or the mentally retarded.
Ginsburg has made clear that consulting foreign law does not mean the judges have to follow it. Yet the specter of rampant use of foreign law has been raised -- and not just by this one chat-room contributor -- as if our judges no longer care about our own constitution.
What our judges do in referring to foreign court cases is nothing out of the ordinary. The highest courts of many countries refer to foreign courts in construing their constitutions. The foreign court most often quoted by supreme courts around the world is our own Supreme Court.
On some issues, our country explicitly accepts international standards of conduct. By treaty, for example, we have agreed not to torture, or to jail people without just cause. Torture and the grounds for jailing people are specified in the treaties. When it comes to applying those international standards, we cannot help but look at how they are read by courts in other countries.
In some situations, the rulings of the International Court of Justice must be considered by our Supreme Court. That is because the U.N. Charter, a treaty to which we adhere, says that if we are involved in a case in the International Court of Justice, we must comply with the decision.
That obligation to follow the international court's decision rests on our courts, because our constitution says that treaties, like the U.N. Charter, are "the supreme law of the land" and must be applied by the courts.
Several years ago, Mexico sued us in the International Court of Justice over what happens when we arrest foreigners but fail to explain to them that they have a right to contact a consul of their home country. The International Court of Justice ruled that if we convict a foreigner without having explained the right of contact, the conviction must be reviewed.
This exact issue is before the Supreme Court in Washington this month. On March 29 the court heard two cases involving Mexican nationals who were convicted of crime, one in Virginia, one in Oregon, without being told they could contact a consul of Mexico. The courts of Virginia and Oregon said it doesn't matter that the right to contact a consul was violated.
The 2 cases are now on appeal to the Supreme Court. Since the U.N. Charter is "the supreme law of the land," our Supreme Court must consider what the International Court of Justice said. Anyone who is unhappy about that has a beef not with Ruth Bader Ginsburg or Sandra Day O'Connor, but with James Madison and Thomas Jefferson.
(source: Duluth News Tribune - John B. Quigley is a professor of law at Ohio State University)
Supreme Court Justice Ruth Bader Ginsburg reports that she and retired Justice Sandra Day O'Connor received death threats because they have referred to foreign law in Supreme Court decisions.
As Ginsburg relates, a posting on an Internet chat-room urged readers to kill the 2 judges, saying that they use foreign laws and rulings to decide American cases. The posting proclaimed: "This is a huge threat to our republic and constitutional freedom."
The person who posted the threat was apparently angry over two recent capital punishment cases, where the court has had to figure out what the Bill of Rights means when it prohibits "cruel and unusual punishment." The cases were about capital punishment inflicted against juveniles and against the mentally retarded.
In both, the court found capital punishment "cruel and unusual," based on its reading of our Bill of Rights. In support of that conclusion, the judges -- and not just Ginsburg and O'Connor -- said that international opinion is also negative on the death penalty for juveniles or the mentally retarded.
Ginsburg has made clear that consulting foreign law does not mean the judges have to follow it. Yet the specter of rampant use of foreign law has been raised -- and not just by this one chat-room contributor -- as if our judges no longer care about our own constitution.
What our judges do in referring to foreign court cases is nothing out of the ordinary. The highest courts of many countries refer to foreign courts in construing their constitutions. The foreign court most often quoted by supreme courts around the world is our own Supreme Court.
On some issues, our country explicitly accepts international standards of conduct. By treaty, for example, we have agreed not to torture, or to jail people without just cause. Torture and the grounds for jailing people are specified in the treaties. When it comes to applying those international standards, we cannot help but look at how they are read by courts in other countries.
In some situations, the rulings of the International Court of Justice must be considered by our Supreme Court. That is because the U.N. Charter, a treaty to which we adhere, says that if we are involved in a case in the International Court of Justice, we must comply with the decision.
That obligation to follow the international court's decision rests on our courts, because our constitution says that treaties, like the U.N. Charter, are "the supreme law of the land" and must be applied by the courts.
Several years ago, Mexico sued us in the International Court of Justice over what happens when we arrest foreigners but fail to explain to them that they have a right to contact a consul of their home country. The International Court of Justice ruled that if we convict a foreigner without having explained the right of contact, the conviction must be reviewed.
This exact issue is before the Supreme Court in Washington this month. On March 29 the court heard two cases involving Mexican nationals who were convicted of crime, one in Virginia, one in Oregon, without being told they could contact a consul of Mexico. The courts of Virginia and Oregon said it doesn't matter that the right to contact a consul was violated.
The 2 cases are now on appeal to the Supreme Court. Since the U.N. Charter is "the supreme law of the land," our Supreme Court must consider what the International Court of Justice said. Anyone who is unhappy about that has a beef not with Ruth Bader Ginsburg or Sandra Day O'Connor, but with James Madison and Thomas Jefferson.
(source: Duluth News Tribune - John B. Quigley is a professor of law at Ohio State University)