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Our Declaration of Independence from Foreign Law

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This Sunday, in the print edition of the New York Times Magazine, Garry Wills joined Justice Ruth Bader Ginsburg in contending that the Declaration of Independence favors interpreting our Constitution in light of foreign law. They note that the Declaration is prompted by a “decent respect for the opinions of mankind.” The colonists are moved by that respect to recount publicly the causes of their need for separation from Britain. Wills and Ginsburg appear to believe the same decent respect should encourage Americans, including our justices, to resort to foreign law to help construe our Constitution.

But using this sonorous phrase of  the Declaration as a support for resorting to foreign or international law has defects that are obvious from the text and context of the great document itself. First, the Declaration makes clear that this “decent respect” requires us to explain our own views to the world, not accept the views of others.

Second, the Signers appealed to a combination of natural law and their own historic rights as justification for their break with the mother country. They did not refer to foreign and international law as support for their position. For good reason. The Enlightenment age in which Declaration was written may have been cosmopolitan, as Wills argues. But the sovereign law in the monarchies of Europe and in despotisms elsewhere were not noticeably solicitous of the rights, like representation and freedom from unreasonable searches, that the Framers thought their birthright. Nor were such governmental infringements of such rights proscribed at international law. If the Signers had given more weight to the predominant norms in foreign jurisdictions, we might well still be part of the United Kingdom today.

Third, in the text of the Declaration the Framers specifically objected to being subject to foreign jurisdictions, complaining of George III: “he has combined with others to subject us to a jurisdiction foreign to our Constitution.” How much more foreign are many of the nations today than the jurisdictions to which George III subjected the colonists!

To be sure, Wills and Ginsburg presumably are not arguing for giving foreign nations absolute authority over Americans. But insofar as the Supreme Court relies on foreign law as authority that may tip the scales of their decisions, they are also submitting Americans to foreign jurisdictions, if only to a lesser degree. It is a perversion of history to use the Declaration of Independence as support for this method of constitutional interpretation.

Reader Discussion

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on July 03, 2017 at 11:09:38 am

Given the "dwarf's" rather unique understanding of American Law's antecedents and her willingness to accept sophomoric inanities, such as infusing that *sonorous* (luvv'd it, John) phrase with both legal interpretive and methodological power, one must ask: "Why is this (tiny) Black Robe NOT impeached? "

My God, THIS is what our Supreme court has been reduced to?????????

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gabe
on July 03, 2017 at 15:33:03 pm

Happy 4th, Gabe (and John, et al.) . I've been putting together a short casebook on church/state, and I can tell you it has been an horrific experience!

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Ken Masugi
on July 03, 2017 at 15:34:09 pm

BTW, I can't find a copy of the NYT Magazine article online. Do you have a URL?

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Ken Masugi
on July 03, 2017 at 19:35:25 pm

Would this include Sharia Law Madame Justice?

I see your pet-name for her is "dwarf". I like to affectionately refer to her as "Bad Gin", as in my view, when her tenure on the court finally comes to an end, her legacy and effects on American Jurisprudence will be much like that following an over-indulgence of bad gin - nothing but an awful hangover.

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Paul Binotto
on July 04, 2017 at 08:51:32 am

Ken:

Happy 4th to you as well.

Cannot find url but here is something of interest on the topic:

https://eppc.org/publications/alien-justice/

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gabe
on July 04, 2017 at 09:55:28 am

It was in a print supplement to Sunday's paper. I cannot find it online either.

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John O. McGinnis
on July 05, 2017 at 15:14:05 pm

"Third, in the text of the Declaration the Framers specifically objected to being subject to foreign jurisdictions, complaining of George III: “he has combined with others to subject us to a jurisdiction foreign to our Constitution.” How much more foreign are many of the nations today than the jurisdictions to which George III subjected the colonists!"

Was this really about foreign governments, or was it about British (as opposed to English) rule? My understanding of the revolt was that the Americans considered themselves subjects of the king under English rule. After the British government took over and started laying down the law as they understood it, the differences between the realities of British law and the colonists' expectations of a continuation of the English rule of law were at the heart of the conflict between the American colonists and the Brits. It was an issue of jurisdiction: Who ruled colonies, Parliament or the King? If Parliament then representation was required if there were to be taxation. There was no representation, therefore the colonists were subjects of the King. The King wasn't really doing his kingly duties because they had been turned over to Parliament, so there was a big governmental fail.

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Scott Amorian
on July 05, 2017 at 17:34:06 pm

Perhaps its as you say; still, there is nothing in your assertion or anything else in the Constitution as I understand it that would lead these two supposed legal scholars to conclude the founders would anticipate our U.S. courts, the Supreme Court, no less, would rely on precedent of courts derived from foreign courts, or in English Common Law, as the incontrovertible basis for our own.

There is no logical reason a seated U.S. Supreme Court Justice would seek to draw on precedent from a foreign court but for the desire to interject into U.S jurisprudence a legal theory or decision that has no other existing, rational, or justifiable basis or precedent in U.S. jurisprudence; and/or is in all likelihood positively contrary to the U.S. Constitution, Common Law, and 200+ years of precedent.

The only justifiable reliance on precedent outside, "beyond(,) the Constitution", Common Law, and U.S. legal precedent thereof derived, is found in Natural Law; but of course, while Natural Law, to contemporary legal minds, may be considered a thing quite foreign, still very strong and persuasive argument has been made, that not only was Natural Law not foreign to the framers of the U.S. Constitution, it served as a fundamental basis for it, and as the anticipated lens through which to view it.

And so, even reliance on Natural Law cannot be said to be reliance on "foreign law", and as such, the only foreign law precedent that can justifiably be argued as having any derivative application in U.S. jurisprudence, is that portion of foreign law that has for its own basis Natural Law, thus creating the necessary nexus.

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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.