Selwyn Duke
Why the law is foreign to Ginsberg
By Selwyn Duke
April 27, 2009

There is an old saying, "A man who is capable of deceiving only others is not nearly as dangerous as a man who is capable of deceiving himself." Truer words were never spoken. When a person lies, he is deceiving others about reality, but at least knows he is engaging in deception. But when someone rationalizes — which is when you lie to yourself — he is truly lost. He then not only bends reality for others as a by-product of bending it for himself, but he can render untruths without having to lie. This is because a lie is when you tell an untruth knowing it's untrue. It's much like when the ever-prevaricating George Costanza character on Seinfeld gave his advice for beating a polygraph machine, "just remember . . . it's not a lie if you believe it."

I think of this when I hear Supreme Court Justice Ruth Bader-Ginsberg tout the use of foreign law by American judges sworn to uphold the Constitution — that would be our constitution. Speaking about this recently at Ohio State University's Moritz College of Law, she said,

"I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law [when handing down court rulings] . . . ."

Well, you know what? I believe her. She and her fellow travelers really don't understand. That is, they don't grasp the correct legal philosophy well enough to understand what they're rejecting.

Note that I called the legal philosophy "correct" and not "strict constructionism," and for good reason. When you call it correct, it follows that other positions are incorrect. But what is the other side of the coin of constructionism? It would be living-document legal philosophies. To accept these categorizations implies that we just have a bunch of different credible perspectives on constitutional law, and who is to say what is correct? Call it, legal relativism. But more on this in a moment.

At her speech at Moritz College, Ginsberg served notice that — like so many in legal circles today — she is in fact very confused about her role on the bench. As an example of this, Adam Liptak at The New York Times tells us,

"She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is 'probably cited more widely abroad than the U.S. Supreme Court.' There is one reason for that, she said: 'You will not be listened to if you don't listen to others.'"

This is a striking statement, and it vindicates something I've long believed. I once wrote that part of the problem with our judges is that they're not content to just be judges. A judge is much like an umpire at a baseball game. It's not his place to make or alter the rulebook (Constitution); his is simply to determine whether or not it has been violated. And whether he likes or dislikes a given rule should be of no consequence.

Yet today we have judges who would be kings. They're not satisfied to just umpire; that's too small a role for them. They want to be agents of activism, molders of men, shapers of society — and they want the ego satisfaction attending such status. They want to be respected by their peers around the world, fellow members of the global judicial class. This is evidenced in Ginsberg's statements. Why should she care if the Canadian Supreme Court is cited more than ours? Popularity doesn't equate to perspicacity. After all, rap stars are far more popular than the most sublime moral philosophers. And, as for the matter of whether foreigners listen to her court, here's a newsflash: It matters not to normal Americans whether they do or not. Foreigners are not governed by American law; thus, our judges' rulings may be irrelevant to them. And foreign rulings should certainly be irrelevant to our judges.

Thus, it seems these things matter to Ginsberg because she isn't satisfied with her role (a common failing of man). She wants prestige and respect; she wants to set trends. Perhaps she should have started a cult. I hear there's some land available in northwestern Guyana.

Yet, living-document justices are comforted in their misfeasance by rationalizations they conjure up to justify it. One that Ginsberg has used is to criticize the view that the Constitution is "stuck in time." But she has it wrong. It is not stuck in time but stuck in law. Law can be changed through legal measures — in the case of the Constitution, the amendment process — but until then it's supposed to be "stuck." The alternative to being stuck in law is being subject to the caprice of those with greater power. This would mean that you could appear before a judge and he could rule based on whim or that a policeman could arrest you because he believed he had just experienced an epiphany about what the law should be. In other words, this thinking is no different from the rule of kings, where a Herod could deliver John the Baptist's head on a plate to please his wife. It is why G.K. Chesterton said, "There are only two ways of governing: by a rule and by a ruler." It is why we should have "the rule of law" and not the rule of lawyers.

And this is why some of us have likened our Supreme Court to a de facto oligarchy. After all, on what basis does an oligarchy rule? Its members make decisions guided by nothing more than the dictates of their own consciences. Thus, people can put as much lipstick on this pig as they want. They can wrap their living-document legal philosophy in a million pseudo-intellectual arguments. But, at the end of the day, it boils down to might makes right. When justices depart from constitutional constraints, they cannot be voted out of office or fired. The only thing constraining them then is their own consciences — just as with an oligarchy

This is why I would have far more respect for someone who overtly defies the law (think Martin Luther King and civil disobedience) and simply refuses to comply. For he is deceiving neither himself nor others. He is simply saying that the law is wrong, that it violates a higher law and that it's the duty of all good people to defy it. It is the difference between an open declaration of war and the use of subterfuge and subversion.

This brings us to a question. If Supreme Court Justices can rule contrary to the letter and spirit of the supreme law of the land on the basis that the Constitution is not "stuck in time," why can lower courts not apply the same reasoning to what is called "settled law" (areas where the Supreme Court has interpreted the Constitution "definitively")? After all, how can law ever be "settled" if it can never be viewed as "stuck"? Why can a lower court not say, "Well, sure, the Supreme Court ruled that way five years ago, but times are a-changin' fast. The law has a different meaning today"? If the Black Robes won't be constrained by the Constitution, why should others be constrained by their unconstitutional precedents?

We now come to the supreme arrogance of our oligarchs-cum-jurists. For their living-law philosophy isn't for all, is it? It's not for the citizen; for him law is stuck in time. It's not for the cop on the beat; interpretation isn't his luxury. It's not for the lower-court judge; for him precedent is to be pre-eminent. It's not even for the president, for the laws he signs are subject to Supreme Court judgments. And judgments based on what? Not the Constitution, obviously. It is again merely their own judgment.

This raises the question of why we should respect the rulings of usurpers. If they will not view the Constitution as being stuck in law, why should we view the law as being stuck in courts? Are the dictates of black-robed oligarchs to be viewed as the only immutable elements in an ever-changing universe of laws? Oh, ignoring court rulings would lead to a breakdown in the rule of law and this isn't a good thing?


The point is that activist judges undermine the rule of law by setting an example of contempt for it. Others are then placed in the position of asking what adherence to the rule of law really means. Should they defer to court judgments made by those who don't view themselves as constrained by law? Or, should they rather use their own judgment — as the justices are doing — as to the real meaning of the supreme law of the land, the Constitution?

This is what living-document legal rationalizations breed. And it is why I've often said that all our designations for jurists, such as "constructionist" and "pragmatist," are nonsense. Because, really, there are only two kinds of justices: Good justices and bad justices. Good ones do their job and abide by the Constitution. Bad ones lawyer the law.

Hey, maybe Ginsberg and her fellow travelers should just be honest and boil this down to its bare essence. They could simply quote infamous occultist Aleister Crowley and say, "Do what thou wilt shall be the whole of the law."

© Selwyn Duke


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