It's the narrowest nationalism possible to think that another country might have to wrestle with the same issue and that such prior legal thinking might be useful to look at.
Nathan
----- Original Message ----- From: "Eubulides" <paraconsistent at comcast.net> To: <lbo-talk at lbo-talk.org> Sent: Saturday, April 03, 2004 6:00 PM Subject: [lbo-talk] Judicial nationalism
[sick.......]
Foreign Rulings Not Relevant to High Court, Scalia Says By Anne Gearan Associated Press Saturday, April 3, 2004; Page A07
Justice Antonin Scalia said yesterday his colleagues on the Supreme Court will probably go on referring to foreign court decisions in their rulings on U.S. law but that does not make it right.
Scalia generally opposes a greater role and influence for international law in U.S. courts.
Although that view made him an unusual choice to speak to the American Society of International Law, Scalia said he welcomes the opportunity to engage his critics.
"It is my view that modern foreign legal material can never be relevant to any interpretation of, that is to say, to the meaning of the U.S. Constitution," Scalia told the group.
Scalia said the modern court's reliance on legal rulings overseas traces at least as far back as 1958 and has been applied inconsistently.
The only consistent way to interpret U.S. law is to stick to the original meaning of the Constitution, Scalia said. "We have no authority to look around and say, 'Wow, things have changed,' " he said.
Scalia is the most vocal critic of a trend among his colleagues on the high court to note international views in the court's rulings. Scalia told the law group much the same thing he has said in recent opinions.
For example, Scalia complained when a majority of the court found a "national consensus" against executing the mentally retarded and banned the practice. The majority had noted strong international opposition to the executions.
"The Prize for the Court's Most Feeble Effort to fabricate national consensus must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called world community, and respondents to opinion polls," Scalia wrote in a dissent in that 2002 case.
He said the practices of other countries are irrelevant because their constitutions are not at issue. International "notions of justice are (thankfully) not always those of our people," Scalia wrote then.
The Supreme Court should not "impose foreign moods, fads or fashions on Americans," Scalia wrote last year.
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