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Justice Ginsburg on Foreign Law and the U.S. Constitution:

I haven't followed the debate over the use of foreign precedents, international treaties, etc., to interpret U.S. law as closely as I should. Thus, I was, but perhaps shouldn't have been, surprised and rather horrified to read this speech by Justice Ruth Bader Ginsburg. For example, she writes:

Interpreting U.S. Supreme Court precedent, a divided U.S. Court of Appeals for the District of Columbia Circuit held in 1989, during my tenure on that court, that foreign plaintiffs acting abroad - plaintiffs were Indian family planning organizations - had no First Amendment rights, and therefore no standing to assert a violation of such rights by U.S. officials. In particular, the Indian organizations complained of a condition on U.S. grant money: the recipients could not engage in any abortion counseling, even in a separate entity funded by non-U.S. sources. In dissent, I resisted the notion that in an encounter between the United States and the people of another land, "the amendment we prize as 'first' has no force in court." I expressed the expectation that the position taken in the Restatement (Third) of Foreign Relations would one day accurately describe our law. "[W]herever the United States acts," the Restatement projects, "'it can only act in accordance with the limitations imposed by the Constitution.'".... Among examples from that [October 2002] Term, I would include the Michigan University affirmative action cases decided June 23, 2003. Although the Court splintered, it upheld the Michigan Law School program. In separate opinions, I looked to two United Nations Conventions: the 1965 Convention on the Elimination of all Forms of Racial Discrimination, which the United States has ratified; and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified. Both Conventions distinguish between impermissible policies of oppression or exclusion, and permissible policies of inclusion, "temporary special measures aimed at accelerating de facto equality." The U.S. Supreme Court's decision in the Michigan Law School case, I observed, "accords with the international understanding of the [purpose and propriety] of affirmative action."

Indian plaintiffs (that is, residents and citizens of India) should have the right to go to U.S. courts and have them tell Congress how to spend U.S. taxpayers' money? The Supreme Court should rely on a "Convention" that the U.S. hasn't ratified? The meaning of the Fourteenth Amendment should be determined, in part, by "Conventions" ratified by such paragons of equality as Cuba, Libya, Syria, Saudi Arabia, Burundi, Burkina Faso, Chad, China, Kazakhstan, Vietnam, and so on, which therefore represent "international understanding"? I don't know whether to laugh or to cry.

Thanks to reader John J. Vecchione for the tip; his thoughts on the speech can be viewed here (3/16, no permalink available).

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