Ginsberg Defends Use of Foreign Law by U.S. Judges

[Rastus]

http://www.nytimes.com/2009/04/12/us/12ginsburg.html?_r=1&em


Ruth "Buzzie" at it again.  Foreign law trumping our own....how can a nation of laws be held accountable for, let along held together, by such nonsense?

Read it for yourself on the link......

[tombogan03884]

http://www.nytimes.com/2009/04/12/us/12ginsburg.html?_r=1&em


Ruth "Buzzie" at it again.  Foreign law trumping our own....how can a nation of laws be held accountable for, let along held together, by such nonsense?

Read it for yourself on the link......

Thanks but I already had my fiber for the morning 

[tt11758]

Who gives a rat's ass if the Canadian Supreme Court is quoted abroad more often than the SCOTUS?  Your job, Buzzy, is to interpret the COTUS as it to cases that come before the SCOTUS.  Nothing more, nothing less.  If you're so damned impressed with the Canadian Supreme Court, go sit on that judicial body.  That would be one Ginsberg decision that would be BENEFICIAL to the citizens of this country, and to our Constitution!!

[fightingquaker13]

Actually guys, hold your fire, there is nothing political here. Useing foreign law in interpreting cases is a principle called "commity" it is based on the idea that the law of civilized nations is and should be similar. This a very old tradition. If you go back and look at cases dealing with things like indian law and disputes between states, you'll see this. The early litgation over slavery held this as well. In fact the dissent in Dred Scot v Sanford used th Grace case (an English ruling about whether a Jamaican slave brought to Britian was now free) as holding law. The sky is not falling, or if it is, its been falling for about 150 years .
FQ13

[JC5123]

Actually guys, hold your fire, there is nothing political here. Useing foreign law in interpreting cases is a principle called "commity" it is based on the idea that the law of civilized nations is and should be similar. This a very old tradition. If you go back and look at cases dealing with things like indian law and disputes between states, you'll see this. The early litgation over slavery held this as well. In fact the dissent in Dred Scot v Sanford used th Grace case (an English ruling about whether a Jamaican slave brought to Britian was now free) as holding law. The sky is not falling, or if it is, its been falling for about 150 years .
FQ13

Now I will admit that it has been a few years since I sat in a civics class, so correct me if I am wrong, but I thought that the whole point of the SCOTUS was to either confirm or reject the constitutionality of laws passed by congress?  You know, checks and balances and all of that. If this is the case, then there is no reason for the SCOTUS to be referring to other nations laws for any reason. That being said that would mean that the last legitimate case to be heard before the high court was D.C. vs. Hellar.

[Sponsor]

[fightingquaker13]

Now I will admit that it has been a few years since I sat in a civics class, so correct me if I am wrong, but I thought that the whole point of the SCOTUS was to either confirm or reject the constitutionality of laws passed by congress?  You know, checks and balances and all of that. If this is the case, then there is no reason for the SCOTUS to be referring to other nations laws for any reason. That being said that would mean that the last legitimate case to be heard before the high court was D.C. vs. Hellar.

Look, let me say up front that I'm not making an argument about should or shouldn't I'm just reporting facts, so don't shoot the messenger. The thing about SCOTUS is that it is in the business of both making law and rewriting the constitution. This what happens every time it rules. The Court effectively says "The constitution means This" and so mote it by. As Holmes ( I belive) said "The court isn't final because it is infallible, its infallible because its final". If you want to be a cynic (and give Al Gore some comfort) you can say that the greatest constituional principle we have is that 5 is a bigger number than 4. The fact is though, that its worked pretty well so far, with a few exceptions.
The thing people need to understand is that the Court makes law and rewrites the constituion because it has to. To give the Con Law 101 answer, in an ideal world the court takes cases for 3 reasons (none of them having to do with seeing justice done). These are
1 Dealing with an issue where the circuit courts are in conflict
2 dealing with a new issue like abortion or the internet or what NAFTA obligations mean for state law
3 A clear constitutional question like whether the right to habeas corpus applies only in the  US or to anyone held in US custody 

In settling these issues the justices look for guidance from statute law, the constitution and from precedent. If those don't provide clear answers they go looking further afield, the Federalist Papers, state law, political consensus and yes international law. The thing is, the Courts job is to come up with a rule that lower courts can use to deal with similar cicumstances.  If they'res nothing here they'll outsource over seas and they've been doing it since John Marshall and the first SCOTUS. Hope this was helpful.
FQ13

[Hazcat]

Once again FQ you are mixing apples and oranges.  Quoting English law (upon which much of our law is based (see Black)) as a defense or support is one thing.  Using foreign law to interpret the meaning of the US Constitution is another thing all together.

[JC5123]

Look, let say up front that I'm not making an argument about should or shouldn't I'm just reporting facts, so don't shoot the messenger. The thing about SCOTUS is that it is in business of both making law and rewritig the constitution. This what happens every time it rules. The Court effectively says "The constitution means This" and so mote it by. As Holmes ( I belive) said "The court isn't final because it is infallible, its infallible because its final". If you want to be cynic (and give Al Gore some comfort) you can say that the greatest constituional principle we have is that 5 is a bigger number than 4. The fact is though, that its worked pretty well so far, with a few exce;tions.
The thing people ned to undersand is that the Court makes law and rewrites the constituion because it has to. To give the Con Law 101 answer, in an ideal world the court takes cases for 3 reasons (none of them having to do with seeing justice done). These are
1 Dealing with an issue where the cicuit courts re in conflict
2 dealing with a new issue like abortion or the internet or what NAFTA obligations mean for state law
3 A clear constitutional question like whether the right to habeas corpus applies only in US or to anyone held in US custody 

In settling these issues the justices lok for guidance from statute law, the constitution and from precedent. If those don't provide clear answers they go looking further afield, the Federalist Papers, state law, political consensus and yes international law. The thing is, the Courts job is to come up with a rule that lower courts can use to deal with similar cicumstances.  If they'res nothing here they'll outsource over seas and they've been doing it sinc John Marshall and the first SCOTUS. Hope this was helpful.
FQ13

Absolutely! I am not arguing facts, I am just making sure that what I understand is correct. Turns out I was partially correct, but not quite a V ring. Thank you for the clarification. I guess I can't jump on them too hard, I mean when I have to make big decision I find out everything I can before pulling the trigger. I guess it just kinda frustrates me that they don't have enough information based in our own court system, and they have to resort to looking at international law. Mostly I fear that international law will start to take pecitence over our constitution.

[Rastus]

Well, actually where not specified by U.S. law or precedent, we can go back (except where there is a civil code) as far as the Magna Carta to solve law; but only through English court decisions.  This, however, is not what Ruth Buzzie is speaking of.  She wants to mix and match and pull from whatever the heck she wants to make law.   

[Hazcat]

Well, actually where not specified by U.S. law or precedent, we can go back (except where there is a civil code) as far as the Magna Carta to solve law; but only through English court decisions.  This, however, is not what Ruth Buzzie is speaking of.  She wants to mix and match and pull from whatever the heck she wants to make law.  

Thank you, Ras.  That is exactly what I was trying to say.