Question, With Raised Hand, For the Professor

Glenn Reynolds says the notion of impeaching Associate Justice Anthony Kennedy is "just silly." I disagree; my substantive arguments are set forth here in the context of the Roper decision. And I'm not sure I fully understand the Professor's reasoning. Were the claim solely that Kennedy "upholds Marxist, Leninist" principles (as quoted in the Washington Post article Glenn cites), I would agree. Absent illegal conduct, being a Commie isn't unconstitutional. And while I deplore the Court's snowballing tendency to ignore the 10th Amendment and substitute a five-Justice séance calling forth new and mysterious Constitutional text, Realpolitik suggests impeachment founded on such a claim would fall well short.

But extremists (either side) aren't the core of the argument. The narrow point is that America was created as a break from foreign, especially English, law, which therefore cannot be the basis for Constitutional interpretation. Instapundit's only reaction to the slimmed-down claim (I think, having scanned his archives) appeared in a January 13th post where, conceding the issue was "troubling," he argued:

The "internationalization" of constitutional law is often seen as a liberal project, but it shouldn't be. Even if "international" is a synonym for "European," the consequences of importing, say, European law on abortion wouldn't be so liberal as the rules there are much stricter. I think that it's a bad idea in general, but I don't think we'll see much more than rhetoric in this area.

The Professor may be right, of course, but he addressees solely the consequences of use of foreign law, not its lawfulness. Nor does he refute the related problem, discussed by Judge Posner and others, that (apart from admiralty and treaty interpretation) reliance on foreign law is "fig-leafing" a judge's personal preferences, further imperiling Judicial objectivity and neutrality.

I wonder, Professor, whether you're equally dismissive of the more narrow, and more jurisprudentially based, argument: that reliance on foreign law in Constitutional interpretation is, as a minimum, unwise and, at worst, unconstitutional.