Well I know I am about to set off a bomb on the boards, but with the recent comment threads on this issue, I believe it is important for us to understand the difference between cultural conservatism and political conservatism. As a devotee of Edmund Burke I am first and foremost a cultural conservative believing that political conservatism is simply the natural outcropping of culturally conservative values.

I believe what sums this up best is a phrase Edmund Burke wrote about the French Revolution:

I thought ten thousand swords must have leaped from their scabbards to avenge even a look that threatened her with insult. But the age of chivalry is gone. That of sophists, economists and calculators has succeeded; and the glory of Europe is gone forever.

This is what lies at the heart of the cultural conservative values, a deep respect and admiration for the unique blend of values and institutions that were produced by the convergence of the Roman Republic and Christianity. This Greco-Roman-Judeo-Christian mix produced a society that has led to a blossoming of freedom and prosperity throughout the eartth. As a cultural conservative, my primary goal is maintaing the deposit that our ancestors have left us so that our children inhereit the precious mix. As such my foray into politics as a political conservative is not an end in and of itself but simply a means used to protect the “good life” for the general population.

When cultural conservatives talk about the need to protect that deposit through increased education in Wester civilization, increased birth rates, or other issues to protect the deposit of civilization we do not neccesarily want the government to make policies to mandate these goals. No one is talking about forcing people to have more kids or stop using birth control or anything like that at all. The point is that political conservatism is not an end in and of itself.

The goal is always to protect and advance the cultural deposit of Western civilization and the freedom and prosperity we were gifted by our ancestors.

Thus, disputes about birth control, birth rates, and other cultural issues are not government solutions, that is not the point being made, but that doesn’t mean that they don’t have a tremendous impact on the way we live. In fact, there are many who believe that cultural reform outside the government is immensely more important than political reforms. I think the case is compelling.

I love CSI very much, but watching an episode now where they do a total hit job on pro-lifers. Ick.

This article in MotherJones outlines how the DSCC, Chuck Schumer, and Harry Reid systematically worked to push Daily Kos hero Paul Hackett out of the Ohio Senate race. Apparently they accused Hackett of war crimes. All I have to say is I thought the NRSC was sneaky and underhanded, well this, my friends, takes the cake.

An interesting thing to note is that Daily Kos’s founder Markos has been a big defender of the DSCC in this, anyone smell a bit of a sell out. Now that Markos is in the “in” he seems a lot less concerned about fighting the good fight.

The Hill reports that Rep. Bob Ney (R-Ohio) will face a primary challenge from financial analyst James Brodbelt Harris. Ney represents a very conservative district, but has already been targeted by four Democrats who are vying for the nomination to challenge him in the general. Some of the party establishment has scolded Harris for challenging Ney and have encouraged him to stand behind Ney for the good of the party. What I would like to ask is, why does Ney not step aside for the good of the party

This is why John Bolton was a great choice for UN Abassador.

File this under “no surprise”…

“ST. LOUIS - Women who use the Ortho Evra birth-control patch face twice the risk of developing blood clots than those who take the pill, the patch’s manufacturer said late Thursday, citing recent company-funded research.

The finding comes from one of two studies comparing the patch and pill, said Ortho Women’s Health & Urology, maker of the once-a-week patch. The Raritan, N.J.-based company is owned by Johnson & Johnson.”
…
Additions to the patch label made in November warned women that they would be exposed to about 60 percent more estrogen than those who use birth-control pills.
…
An investigation by The Associated Press found last year that patch users die and suffer blood clots at a rate three times higher than women taking the pill. “

But there are safe alternatives out there.

Edith Jones, Chief Judge of the U.S. Court of Appeals for the Fifth Circuit, spoke at the Texas Tech School of Law today about “The Propriety of Using International Law in Constitutional Interpretation.” Her conclusion about the propriety was that there isn’t any. Below I’ve reprinted about 80% of her remarks (as much as I could type).

Sonya Jones, president of the Tech chapter of the Federalist Society maintains an excellent blog where you can catch the excitement that started when the president of the Tech Law Democrats e-mailed a smear on Judge Jones to the entire law school a few days before the judge spoke. (For her sake I hope she never has to argue before the Fifth Circuit.) That thread is here.

One thing that I find interesting is how little liberals value the law when it runs contrary to their bleeding hearts. The woman in question (Hilary Smith) doesn’t seem to know that trial courts rule on the facts and appellate courts rule on the law, or that if you don’t make objections in a timely manner you can’t complain about lousy rulings later, which I find troubling coming from someone that has to be at least a 2L. I’m not a law student and I know that.

Once again, Sonya’s blog is overall excellent and I encourage everyone to check it out (it’s on our blogroll). The fact that John Lott, author of The Bias Against Guns, is a frequent commenter should tell you something.

Without further ado, my notes of Judge Jones’ remarks:

Discussion of the Roper case (Death penalty for minors… Anthony Kennedy cites foreign law)

It means a lot because there are five members of the Supreme Court who are sincerely committed to using international law sources to assist in their obstruction of the U.S. Constitution.

First I will give you the history of how this germ of an idea turned into the full citing of European sources.

Justice Robert Jackson wrote in dissent in the Japanese internment case, “A Constitutional principal once enshrined is like a loaded weapon.” He was dissenting in the case in which the Supreme Court approved the internment of the Japanese in World War II.

This idea started out in a four member plurality opinion. The year was 1957 or 1958. The case was Trop v. Dulles and had to do with whether Congress could penalize people by removing citizenship as a punishment for crime.

[Source of the idea that the 8th Amendment must draw its meaning from “evolving standards.”]

That was sort of a shocking notion at the time. The phrase “cruel and unusual punishment” was taken directly from the English Declaration of Rights, so the Trop plurality clearly referred to the Anglo-American tradition before it decided it must refer to evolving standards of decency. The court added a few pages later that civilized nations of the world are in virtual unanimity that statelessness is not to be imposed. That paragraph took on a life of its own and that dicta was subsequently cited by the Supreme Court for purely decorative purposes in other cases.

Basically the idea of referring to international sources has evolved since 1987 in the Death Penalty area. The use of the Trop reference about other nation’s laws became a battle of the footnotes in the 1988 case Thompson v. Oklahoma where the Court decided 5-4 that it was unconstitutional to execute offenders who had committed their crimes while they were under the age of 16. Only in the footnotes did the majority cite Trop and its use of foreign sources. Scalia dissented saying “We must not forget it is a Constitution of the United States of America we are expounding.”

Two years later it looked as if Justice Scalia’s view had prevailed in the death penalty case Stanford v. Kentucky (1989). He wrote for a 5 member majority and made it clear in response to Justice Brennan’s dissent that “It is the American conceptions of decency that dispositive.” He rejected the notion that sentencing practices of other countries were relevant.

Justice Brennan dissented and reiterated that “the choices of governments elsewhere around the world also merit our attention.”

That majority decision was severely undercut by the Atkins case (2003) and then for all practical purposes overruled by Roper (2005).

It’s moving up from the footnotes to the main body of decision making in Atkins. Justice Kennedy refers to decisions in Europe and decisions in other nations as part of his reasoning as to why it was no longer permissible to execute people who committed capital crimes notwithstanding being retarded.

Then there’s Lawrence (2003), because in Lawrence Justice Kennedy goes out of his way to cite the European Court and Ireland and the UK and of course Lawrence had to do with homosexual sodomy. It’s just part of the rationale for the decision even though it’s dressed up as something extra.

Roper is a difficult case for constitutional scholars because it had to show why the 15 years since Stanford had made it unconstitutional to execute those who committed their crimes under 18. He cites the UN Treaty on the Rights of the Child — which is interesting because the Senate only ratified that treaty with a specific exception for penal punishments.

A 5 member majority essentially overruled the ratification exception Congress had made. Justice Thomas in his dissent talked about the growing trend toward citing foreign sources. “The basic premise… should be rejected out of hand.”

Printz v. United States (1997) – Breyer cites European law on an issue relating to Congress forcing municipalities and states to enforce provisions of the federal Brady Bill. Scalia writes the dissent.

Washington v. Glucksberg (1997) – Scalia refers to traditions in other countries (assisted suicide case). “Based on our traditions there is no such fundamental right [to die].”

Moving the debate into another area of constitutional law, we can look at Grutter v. Bollinger (2003), and it is very provocative that in that case Justice O’Connor concluded her decision by saying that we can pretty well be sure that in 25 years the need for Affirmative Action in this country is going to go away. Perhaps she got this figure from Justice Ginsburg who opened her concurrence with the International Convention on the Elimination of All Forms of Racial Discrimination that suggests Affirmative Action needs around the world would “be discontinued when the objectives of equality of opportunity and treatment have been achieved.”

Many justices have written about their jurisprudence outside the Supreme Court. Justice O’Connor was one of the most forthright and concluded a speech saying, “Referring to foreign sources may not only enrich our country’s decisions, it may create that all-important good impression.” Justice Ginsburg has also given speeches on this subject. Justice Breyer has written numerous times.

Justice Souter, Justice Stevens are all wedded to this notion. So it’s got to be seriously considered and when justices start to be wedded to this notion lo and behold the commentators spring forward and try to push the bar higher for using these kinds of sources.

There is debate in the academic community and even some well-known liberal scholars have indicated some doubt about the extent to which our Supreme Court ought to be looking outside the United States to find sources for constitutional interpretation.

There’s a big move among other scholars to provide support for this.
When you are using these foreign sources you are not interpreting the Constitution in my view.

Originalism and precedent

From the standpoint of originalism, Justice Breyer once cited the Declaration of Independence where Thomas Jefferson talks about “a decent respect for the opinions of mankind,” which was hardly a judicial reference or a reference to international law. It says that while the Declaration was certainly a legal document it was not a legal opinion. Indeed the Declaration declared that one of the offenses King George III had committed was holding citizens to foreign jurisdiction.

Look at the Federalist Papers. Justice Breyer claimed that the Federalist Papers showed the founders were so well versed in the constitutions of other states. They had studied history, law, etc. As Justice Scalia responded, those sources are relevant to writing a constitution; they’re not relevant to interpreting it.

The Constitution and Its Structure

No references to international law as such except for the treaty power, war power, etc. Consider the Supremacy Clause. It’s the keystone to federalism. It says that the Constitution and laws and constitutionally ratified treaties shall be supreme over all state laws. There is no reference to international human rights and conventions.

What about constitutional authorities? Until the last 15 years I’ve not seen any citations to Bill of Rights adjudications that refer to foreign sources of law. Even under Justice Frankfurter who coined the due process standard that harkens back to the Anglo-Saxon tradition. It just didn’t exist in constitutional adjudication until the decorative paragraph in Trop v. Dulles.

What about the Law of Nations? Some fairly sophisticated commentators say “You can find statements in early Supreme Court adjudication saying of course the Law of Nations is integrated into our understanding of Common Law and the application of law.” The Law of Nations was then understood to be the law of nature or natural law, which of course has been totally repudiated by the Supreme Court. The Law of Nations was either ambiguous or it had very narrow meanings that certainly had nothing to do with the 20th century’s unique developments concerning the globalization of international human rights.

In my view there is no support within the Constitution and our legal tradition for going outside of the United States for sources.

When judges use foreign sources of law they are marching right into an exercise of power that seems quite illegitimate within our framework. Part of this can be explained in the discussion of “Is our Constitution fixed or is it evolving?” Some say it’s evolving in the direction of globalization. I’d say they’re speaking about a government that has refused to sign on to a significant number of globalization efforts in our time because they’re concerned about our sovereignty being undercut by international bodies.

There is no way you can bring in international law in a way that is consistent with the Article III role of a judge.

There’s no authority for the judges to use some kind of external standard.

What this boils down to is a hijacking of self-government because if you allow these sources to become dispositive, you’re turning over decision making to unelected, non-democratically responsible lifetime appointed judges. Even worse than that, a lot of the so-called international human rights laws are totally undemocratic because they are generated by nongovernmental organizations that have no democratic legitimacy, no political accountability, and no base of popular support outside of the salons of Paris and London. It is a fundamental hijacking of the structure of our government by the judiciary.

If you’re going to use international sources, on what basis are you going to do it? Can we borrow the best of other systems to improve the function of our government?

We have the exclusionary rule. Most foreign countries do not. We have the world’s most open-ended First Amendment law. Most countries — even Canada, even Britain — have restrictions on hate speech that most Americans would find troubling and unconstitutional.

If we’re going to go with the majority of countries, abortion law would be much narrower than it is now.

What sources are dispositive? Can you pick out any Appeals Court in England? Or must you go the Law Lords? Why not go with Islamic Law or Chinese Law or the evolving standards of decency in Venezuela?

Two other objections:

How do you maintain predictability in a system where judges can randomly pick sources from foreign law? How do you know how to influence those decisions? The point of Common Law jurisprudence is that there is a common frame of reference. There is no predictability left if you randomly choose from foreign sources.

A final objection: If you allow judges even with the best of intentions to go beyond the traditional confines of our craft, you’re basically asking us to make it up as we go along.

“We are sailing uncharted waters without rudder, without anchor, and with a querulous crew. Bon voyage.” – Michael Greve, American Enterprise Institute