Justice O’Conner, Ignoring American Law?

[JBA]

http://www.americandaily.com/item/3352

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Justice O’Conner, Ignoring American Law?

By Warner Todd Huston on 11/06/03
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Justice Sandra Day O’Conner seems to have let her vaunted status as the Court’s “Moderate” go to her head recently. She has been heard at several functions and in several interviews expounding on how the U.S. Supreme Court should be considering foreign precedent more often in it’s decisions. There is nothing sudden or new in this, however, as she has also written such things in some of her decisions on the court as far back as 1988.

In an interview with David Rudenstine posted on the Benjamin Cardozo school of law/Yeshiva University Website, O’Conner said, “ … most countries, at least in the western world, face similar issues from time to time…They have faced many of the same issues we have and at roughly the same time. It is my sense that we have not paid close attention institutionally to the jurisprudence of Canada or other nations. I think that's changing.”

And then, when asked directly if Justice O’Conner felt that the Court should consider decisions by foreign courts to gain “additional insight on our own traditions or interpretations”, the Justice replied, “I would, if it were an issue that had a close parallel in decisions of that other country. I would be interested to know how they handled it, yes.”



This is dangerous.

[Frogm4n]

explain to me how this is dangerous? and how she is ignoring our constitution?

[Tarmac]

Ooohh ooohh, we should throw out the Bill of Rights too, since it drew directly from the 1688 English Bill of Rights.  We wouldn't want to learn anything from a bunch of foreigners.  

Heaven forbid we don't put our heads in the sand and instead actually pay attention to the world around us.

[Gunslinger]

wow, i can honestly say i dont know how i feel about this...thats puzzleing.

[wklink]

The problem is:

The Supreme Court rules on laws created as they relate to the US Constitution.  By ruling based upon what foreign courts decide the Supreme Court steps beyond their bounds as set by the constitution.

The Supreme Court was created with the purpose of protecting the Constitution, not ignoring it.  The only way you are supposed to change the Constitution is by Constitutional ammendment.  Literally, the Supreme Court has no grounds to rule based upon what foreign courts say.  It's a pretty slippery slope if you ask me.  

I have no problem with 'doing things better' and if there is a better way found in a European system, or Asian system, or whatever then that is fine.  But the US Constitution should be changed by Ammendment, not by fiat and that is what Sandra Day O'Connor is suggesting.

Yes, I know that it is has been debatable as to whether the US Supreme Court has overstepped it's bounds in the past.  I believe they have but at least they have always payed lip service to the idea that they are following Constitutional Law.

[Tarmac]

I see what you're getting at, wklink.  I don't see any reference in the article to actually using any foreign court to set a legal precedent.  No American lawyer or judge will ever cite "The People's Republic of China v. Shaing Woo" as an argument and expect it to stand up in an American court as a precedent.

I also see no reference to changing the Constitution in that article, only references to interpreting it.  The courts have interpreted the Constitution and the laws of our legislatures since day one; it's what they're set up to do.

[Gunslinger]

Justice Sandra Day O’Conner seems to have let her vaunted status as the Court’s “Moderate” go to her head recently. She has been heard at several functions and in several interviews expounding on how the U.S. Supreme Court should be considering foreign precedent  more often in it’s decisions.

tarmac it does say this in the first couple of sentences.  Is there another "interpretation" of this statement that i'm missing...this does kinda scare me.

[Frogm4n]

Only the ignorant would be scared. There is a difference in looking at other systems, and actually applying them to ours(which is legally impossible). Dont be scared sweet sweet ignorant tards.

[rpm]

Considering the source of this article "American Daily" is a right wing extreemist website, I'm sure that the article didn't take ANYTHING out of context and put an ugly spin on it. Didn't Reagan appoint her? Does this mean he didn't know what he was doing? I have no fear of the Supreme Court throwing out the US Code or the Constitution anytime in my lifetime.

[Thrawn]

Where the heck does it say that she will ignore US law?

If she uses international views to aid her intrepeting your consitution better, I don't see how that equates her with ignoring it.

She would have to be concentrating on it in order to intrepet it.  And what US precidents is she supposed to use in cases were your Supreme Court is setting precident, for the US?

Might as well look at what other countries with the same human rights have done, so she can render a decision with better context than none.

Cripes...double Cripes.

[Mighty1]

Why look at other countries if you are not going to use them as a guide?

I see it like a PC programmer looking at a Mac programmer’s code to decide how to write a game

[DmdNexus]

Originally posted by JBA
http://www.americandaily.com/item/3352

This is dangerous.

You're twisted JBA! Typical neo-nazi conservative.

Recognizing court decisions and laws of other countries is quite common.... the civilized world would be chaos with out it.

For example... recognizing the marriage of foreign nationals... this comes in they visit the US and one individual is hospitalized and unable to make medical decisons... who can legally do so? The spouse.... even if that legal authority was given by a foreign nation.

Of course O'Conner was talking about more complex issues... but I thought that simplified example would surfice so you could understand JBA... simple minds like yours needs the pablum of simple examples.

[Dune]

Originally posted by DmdNexus
You're twisted JBA! Typical neo-nazi conservative.

Recognizing court decisions and laws of other countries is quite common.... the civilized world would be chaos with out it.

For example... recognizing the marriage of foreign nationals... this comes in they visit the US and one individual is hospitalized and unable to make medical decisons... who can legally do so? The spouse.... even if that legal authority was given by a foreign nation.

Of course O'Conner was talking about more complex issues... but I thought that simplified example would surfice so you could understand JBA... simple minds like yours needs the pablum of simple examples.

And you're an idiot.

Considering the legal decisions of foriegn courts to help decide what the rulings should be here has absolutely nothing to do with recognizing the marriage of a foriegn national.  

All of this depends on what O'Conner meant.  By saying "understanding foriegn law" did she mean that attorneys and judges need to better realize what foriegn laws are when dealing in the global economy becuase it will help us compete better?  Ie., if we realize what another country's laws are it will help us understand how to deal with that company which operates under those laws.

Or did she mean that we need to start using international laws to help define our own?  

If she meant the former, then I agree.  By understanding foreign laws when you are dealing with companies from another country, you can have a better understanding of how that company does business.  And how to do business in that country yourself.

However, the if she meant the second, this could mean trouble.  The US Constitution was based on English laws and French ideas (an interesting mix).  But, it is my belief that the only piece of paper that should define the legality of our laws it the Consitution as it is presently written.  I don't care how a certain country has decided to interpret a question of law in their country.  Their law isn't bound by our Constitution.  If the Supremes, or any other court, has to make a decision, let them base it on our laws and our preceeding cases.  Not what goes on in other countries.

[wklink]

Originally posted by DmdNexus
You're twisted JBA! Typical neo-nazi conservative.

Recognizing court decisions and laws of other countries is quite common.... the civilized world would be chaos with out it.

For example... recognizing the marriage of foreign nationals... this comes in they visit the US and one individual is hospitalized and unable to make medical decisons... who can legally do so? The spouse.... even if that legal authority was given by a foreign nation.

Of course O'Conner was talking about more complex issues... but I thought that simplified example would surfice so you could understand JBA... simple minds like yours needs the pablum of simple examples.

I find if funny that worrying about the potential subversion of the US Constitution somehow makes someone a neo-nazi conservative.  I suppose that you are someone that calles the Cosntitution a 'living document' that can be reinterpreted as convenient for whomever is in power.

That is the danger in just assuming that a 'liberal' (and I'm not meaning liberal in a political direction) interpretation of the constitution is automatically benign.  There may come a day when someone will be in charge that you may not politically agree with and that 'liberal' precident may come back and bite you.

I believe the US Constitution is the law of the land in the United States.  It was, and is, the foundation that this country was and is based on.  The founders put forth ways to amend the document as necessary via the amendment process, a way that is bulky but IMHO necessary to keep people from making rash changes that can cause more trouble later on.  It still happened (anyone remember prohibition?) but this system put forward has kept the government stable and relatively honest over the last 200 years.

Maybe Dune is right, maybe she meant it as a way to understand foreign law.  However, her job isn't to understand foreign law, her job is to interpret the Constitution of the United States.  It's like having a 3rd base umpire look at football games and then make calls on the field because he thinks a football ref may have a better penalty system.  

Don't ever assume that things will always be OK.

[Rude]

Originally posted by Frogm4n
Only the ignorant would be scared. There is a difference in looking at other systems, and actually applying them to ours(which is legally impossible). Dont be scared sweet sweet ignorant tards.

You mean like being scared of the Patriot Act....I get your point.