Activist Supreme Court justices increasingly are looking past our borders to England, France, Canada, and the permissive laws of other states to determine how they interpret our Constitution. Their policy aim is to remodel America in Western Europe’s image—a secularized society that devalues civic virtue. To accomplish this, they overstep their constitutional bounds and, instead of judging, engage in judicial imperialism of the worst kind.
Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and John Paul Stevens all have cited international “norms” in recent politically charged rulings—decisions that should be left to the legislative branch. And emboldened by their successes, these justices are beginning to talk openly about their internationalist approach. For example, Justice Ginsburg recently told the American Constitution Society, “Our island or lone-ranger mentality is beginning to change” as justices “are becoming more open to comparative and international law perspectives.”
Three recent landmark rulings highlight the threat to American sovereignty. Justice Kennedy in the majority opinion in Lawrence v. Texas legalizing sodomy cited a 1957 report to the British Parliament and a 1981 ruling of the European Court of Human Rights. Justice Ginsburg in a concurring opinion in the Grutter v. Bollinger affirmative action decision referred to an international pact on combating discrimination. And Justice Stevens in the Atkins v. Virginia ruling regarding application of the death penalty for mentally retarded offenders noted the world community’s disapproval of the practice.
The problem is, Europe’s or any other foreign legal precedent has no place in the High Court’s decisions, as Justices Antonin Scalia and Clarence Thomas have explained in their opinions. Writing the dissent in Lawrence, Justice Scalia called the majority’s discussion of foreign views “dangerous dicta” and quoted Justice Thomas’s statement in a 2002 decision that the Court “should not impose foreign moods, fads, or fashions on Americans.”
In his new book, Coercing Virtue: The Worldwide Rule of Judges, Judge Robert Bork examines this trend as a worldwide phenomenon—an international power grab by internationalist justices—and calls for a return to American constitutional principles.
Judge Bork makes four important points: First, international judicial imperialism is perhaps the most important battleground in a transnational culture war. Second, it is an obvious usurpation of powers belonging to political branches. Third, judges are forcing their nations’ cultures to the left, breaking down traditional moral codes and the efforts of electorates to preserve those codes. And fourth, the internationalization of law may be a major force in the movement toward international government, which as we are beginning to see in the European Union, is likely to be authoritarian, if not ultimately tyrannical.
Is the direction the European Union has taken where the United States wants to go? “Those who think of Europe as being the vanguard of new ideas need to at least consider the possibility that history may yet record that Europe was where the degeneration of Western civilization began,” Thomas Sowell, senior fellow at the Hoover Institution, warned in the Wall Street Journal.
Today’s Europe is a secular, postmodern experiment, while America is a religious polity that upholds moral standards. The European Union rejects any reference to God in its Constitution, much less any acknowledgment of its Christian roots. And how easily we forget other less-fashionable European trademarks, including two world wars, Nazism, Fascism, and Communism. Would we have turned to Europe for legal guidance in the 1930s?
In our system of checks and balances, the Supreme Court has a narrow function to apply the Constitution as written and can have no legitimate interest in international or domestic policymaking. So it is significant that in their quest to impose “progressive” social policy on traditional America— an eroding of moral values that democratically elected representatives would soundly reject—liberal justices are willing to make a power play and depart from their proper constitutional role in order to legislate from the bench.
“It is a symptom of how little regard some jurists have for the fundamental right of the American people to govern themselves that what foreigners have chosen to do should be taken into account in American law,” Sowell said.
Avery Cardinal Dulles, S.J., noted in his homily at this year’s Red Mass for the Supreme Court: “We justly pride ourselves in having a government of laws that prevents tyranny and capriciousness. But it is possible, in the absence of virtue, to put too much stock on law. Alexis de Tocqueville, a keen observer of the American scene, said that the Europeans of his day gave too much emphasis to laws and too little to mores. In the United States, he contended, customs and religious beliefs pervaded social life so thoroughly that the laws could be less onerous [Democracy in America, Vol. 1].”
Indeed, America boasts a unique system of checks and balances that ensures a strong democracy underpinned by a culture that promotes civic virtue. To protect our society, Supreme Court justices must uphold one Constitution only—that of the United States.