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Kevin James puts his foot in his mouth by insisting that only American law ever be referenced when making decisions in American courts. David Limbaugh agrees in his comments about the appointment of Harold Koh as State's legal advisor. Comedian Limbaugh thinks it stems from a position that liberals have that always paints America as wrong and the international community as better and wiser.
On the matter of arresting people, charging them, and putting them on trial, one cannot cite the laws of other countries (one can cite international treaties, I suspect, but only because their ratification means they become part of Americal law. At least, I think that's how it works). What is illegal in France is not necessarily illegal in America, and vice versa.
On the broader point that foreign laws or court decisions should never be thought of, referenced to, or cited in an explanation of how a judge is thinking, or what is influencing their decisions, that's just stupid. Considering that law is a question of interpretation, especially when before the magistrate, it may be highly useful to cite the differences between various laws as a way of explaining what the judge is endorsing, and what he is not. Furthermore, American law has not always been a bastion of progressivism, and so it may be useful to draw in other countries as examples of what works better (or worse) for those that will be reading the learned opinions of the court.
Comedian Limbaugh does have a point that the liberal wing of politics here looks to the international community for ways of fixing our faults. This presupposes the point that they are, indeed, faults, which I think the comedian, Mr. James, and Justice Scalia as cited by Mr. James would take issue with for a lot of things.
Mr. James uses as an example a citation by Justice Kennedy, making reference to the Human Rights of the Child declaration (which the U.S. did not ratify) as part of his reasoning why he holds that capital punishment for the under-18 is cruel and unusual, as well as statutes from the British Parliament passed in the 1930s and 1940s and Justice Breyer's references to other countries' laws and interpretations as to why we should follow their lead. This could be used as a point saying that we're sixty years behind the rest of the world, but I think that's what Mr. James is so passionately against in his "Americans-only" defense.
For some reason, both the comedian and Mr. James believe that somehow other countries could change their laws hoping that they can then influence United States Constitutional matters and decisions, which would be quite the feat. I'd like to see the Parliamentarians approve law changes with the intended purpose of hoping they will someday be cited in a United States court decision. Lot of effort when getting a treaty ratified would be easier. The argument that making reference to these laws or acknowledging their existence at all is giving them primacy over American law is nonsense as well. If the opinion of the Justices is that capital punishment is cruel and unusual, they will cite the Eighth Amendment as the reason for their decision. American law for an American case. That they prefer the interpretation produced by a foreign law and court case means nothing unless they can make it work with the American law being challenged or used.
Finally, Mr. James believes that a constitutional amendment reading "This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations." will save us all from this growing problem. Again, a lot of effort for something that already is happening now. The judges and the lawyers both still have to find and interpret American law in the end, whether they do it by finding the wiggle spot that lets them get their preferred interpretation or by re-interpreting against court precedent in a new and totally legal direction.
This is xenophobia, Mr. James. I think he would be worried about the legislators, except he's confident they would never pass the kind of legislation that would turn us into a more internationally-influenced country. I think his fellow conservatives don't see it that way.* Mr. Koh deserves better than a xenophobic campaign against him. He deserves to be evaluated on the basis of his judicial merits.
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*Really, his timing's off. This is an "activist judges" critique when most of the focus is on activist legislators and executives. So it will be interesting to see whose critique lives longer - the "He's a socialist/European President with a sympathetic legislature!" or "The judges are turning us into socialist/Europeans by interpreting American law in European ways!"
On the matter of arresting people, charging them, and putting them on trial, one cannot cite the laws of other countries (one can cite international treaties, I suspect, but only because their ratification means they become part of Americal law. At least, I think that's how it works). What is illegal in France is not necessarily illegal in America, and vice versa.
On the broader point that foreign laws or court decisions should never be thought of, referenced to, or cited in an explanation of how a judge is thinking, or what is influencing their decisions, that's just stupid. Considering that law is a question of interpretation, especially when before the magistrate, it may be highly useful to cite the differences between various laws as a way of explaining what the judge is endorsing, and what he is not. Furthermore, American law has not always been a bastion of progressivism, and so it may be useful to draw in other countries as examples of what works better (or worse) for those that will be reading the learned opinions of the court.
Comedian Limbaugh does have a point that the liberal wing of politics here looks to the international community for ways of fixing our faults. This presupposes the point that they are, indeed, faults, which I think the comedian, Mr. James, and Justice Scalia as cited by Mr. James would take issue with for a lot of things.
Mr. James uses as an example a citation by Justice Kennedy, making reference to the Human Rights of the Child declaration (which the U.S. did not ratify) as part of his reasoning why he holds that capital punishment for the under-18 is cruel and unusual, as well as statutes from the British Parliament passed in the 1930s and 1940s and Justice Breyer's references to other countries' laws and interpretations as to why we should follow their lead. This could be used as a point saying that we're sixty years behind the rest of the world, but I think that's what Mr. James is so passionately against in his "Americans-only" defense.
For some reason, both the comedian and Mr. James believe that somehow other countries could change their laws hoping that they can then influence United States Constitutional matters and decisions, which would be quite the feat. I'd like to see the Parliamentarians approve law changes with the intended purpose of hoping they will someday be cited in a United States court decision. Lot of effort when getting a treaty ratified would be easier. The argument that making reference to these laws or acknowledging their existence at all is giving them primacy over American law is nonsense as well. If the opinion of the Justices is that capital punishment is cruel and unusual, they will cite the Eighth Amendment as the reason for their decision. American law for an American case. That they prefer the interpretation produced by a foreign law and court case means nothing unless they can make it work with the American law being challenged or used.
Finally, Mr. James believes that a constitutional amendment reading "This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations." will save us all from this growing problem. Again, a lot of effort for something that already is happening now. The judges and the lawyers both still have to find and interpret American law in the end, whether they do it by finding the wiggle spot that lets them get their preferred interpretation or by re-interpreting against court precedent in a new and totally legal direction.
This is xenophobia, Mr. James. I think he would be worried about the legislators, except he's confident they would never pass the kind of legislation that would turn us into a more internationally-influenced country. I think his fellow conservatives don't see it that way.* Mr. Koh deserves better than a xenophobic campaign against him. He deserves to be evaluated on the basis of his judicial merits.
----
*Really, his timing's off. This is an "activist judges" critique when most of the focus is on activist legislators and executives. So it will be interesting to see whose critique lives longer - the "He's a socialist/European President with a sympathetic legislature!" or "The judges are turning us into socialist/Europeans by interpreting American law in European ways!"
