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.
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Agreed. You might want to check out Vote for Judges. The lead post right now is a judicial impeachment roundup; use the search-this-blog utility for comments on Kennedy.
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