Justice Ruth Bader Ginsburg recently gave a speech defending the Supreme Court's increasing use of foreign law in support of its rulings on the meaning of the Constitution. Many liberals side with Ginsburg in stating, " we can honor the Framers' intent 'to create a more perfect Union when we rewrite the Constitution to comport with our own understandings of the needs of the day."
But what Ginsburg and her liberal cohorts forget…It is "We the People of the United States," not judges, to whom the Constitution looks to "form a more perfect Union." In attacking originalism (adhereing to the original understanding of the Framers' Constitution and of the various amendments to it.) as "frozen in time," Ginsburg slights the genius of the Framers in setting up a system in which the people, through their elected representatives and within the broad bounds established by the Constitution, adapt the laws to changing times.
What exactly does a "comparative perspective" in constitutional adjudication mean, and what is its value? Addressing a group of international lawyers, Ginsburg resorts to kindergarten talk — "we can learn from others," "we can join hands with others," we should "share our experience" — but never even attempts to explain how a foreign court's decision on how a foreign law measures up to a foreign charter can or should have analytical value in construing our Constitution. In short, she has no response to Justice Scalia's criticism: "To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."
Ginsburg points out that the Framers understood that the United States "would be bound by 'the Law of Nations,' today called international law." But the Constitution's conferral of power on Congress "to define and punish . . . Offenses against the Law of Nations" makes clear that it is up to Congress, not judges, to determine which obligations under international law should apply domestically.
— Edward Whelan is president of the Ethics and Public Policy Center and directs EPPC's program on the Constitution, the Courts, and the Culture.