[lbo-talk] Judicial nationalism/provincialism

[andie nachgeborenen]

It's idiotic in lots of ways. We know for a fact that
the framers looked at the law of other countries in
interpreting the C (and framing it) -- the C itself
refers to the law of other countries, notably England.
That's what the "common law" referred to variously
therein means. We know that the framers studied
Blackstone's Commentraties on the Laws of England,
Littleton on Tentures and Coke on Littleton, and the
like.  The Federalist Papers are loaded with
references to the law of all sorts of countries from
various times.  So it is ignorant event on originalist
terms to blow off the law of other countries. S is of
course right that foreign law isn't use law except by
treaty. But that's not the point. 

jks

--- Nathan Newman <nathanne at nathannewman.org> wrote:
> This is just idiotic by Scalia.  It's quite
> reasonable to say that foreign
> rulings are not BINDING on the US, but every state
> court in the US looks to
> what other states do for examples of legal
> reasoning, when the issue is
> similar to their own.  They may agree and they may
> disagree, but they are
> always "relevant" to legal thinking.
> 
> 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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