The Constitution?
Don't pay too much attention to that dusty old thing, a majority on the Supreme Court as much as said in a number of recent decisions. But it's not as if they showed no deference to any other institution as they further arrogated to themselves powers properly belonging to the legislative branch of government.
Why, wrote Justice Anthony Kennedy in the 6-3 opinion knocking down a Texas anti-sodomy law, the European Court of Human Rights and other foreign courts say adults have the right to homosexual intimacy.
Thus, according to a New York Times assessment, the court "displayed a new attentiveness to legal developments in the rest of the world and to the court's role in keeping the United States in step with them."
Maybe you think the Texas law was awful. I do. Turning to foreign courts as a justification for its demise is nevertheless a means of vitiating self-governance and even the rule of law. Yet, says one court observer, this and a couple of less significant court references to foreign law could be just the beginning.
Tony Mauro, Supreme Court correspondent for American Lawyer Media and Legal Times, writes about the justices frequently traveling abroad to serve on panels and otherwise interact with foreign judges, and cites legal experts who say such encounters have helped breed "their new internationalism."
In one article, Mauro quotes Justice Sandra Day O'Connor as having said, "Because of the scope of the problems that we face, understanding international law is no longer a legal specialty. It is becoming a duty."
I have nothing against these trips, per se. I certainly have nothing against scholars of law, history and politics studying foreign law; some surely should. And I have nothing against legislators seeing what they can learn about what has and has not worked in other lands. I am not playing chauvinist here.
But anyone who thinks another land's laws should affect American court decisions should pause to reflect that 227 years ago we declared our independence from a foreign country in which we had no representation.
That declaration was followed by a war in which we won that independence. That war was followed by the adoption of a constitution, which among other things established three branches of government, limiting the authority of each in order to establish liberty in the context of a well-ordered society. That document and early precedent made clear that the Supreme Court's role was not to legislate — that would disenfranchise the people — but to interpret law and to judge law in accordance with the Constitution.
I concur with those who say the only way the court can fulfill its legitimate role is through trying to ascertain the original understanding people would have had of constitutional language when the document and its amendments were adopted.
Some argue that circumstances have greatly changed since the framers and amenders did their work, and of course they have. It does not follow that principles have changed, although if some think reconsidered principles are called for, there is an amendment process.
Others argue that interpreting these principles is no easy task, and sometimes it isn't. So what? The point is for justices to do their best to stay as faithful as they can to those principles. If they don't, what else holds them in tow?
The answer is that nothing does, as this just-completed term demonstrated. In its affirmative action ruling, the court simply ignored a 1964 law forbidding racial discrimination, and in ruling on the Texas law, it said the Constitution's guarantee of due process means something it clearly does not mean. In majority opinions, the justices told us what best serves society. They told us of trends we should heed. They passed moral judgments that they are entitled to hold — but not to mandate.
And they looked to European courts for guidance, to courts unanswerable in any way to the American people and sometimes at odds with our own most cherished beliefs. What they showed us in the end is that the sooner some justices retire, the better, and that it is crucial that their replacements be constitutionalists.
Jay Ambrose is director of editorial policy for Scripps Howard Newspapers.