Tuesday, August 3, 2010

He ought not to be altogether ignorant of the law of nations

The title quote from James Madison pretty much sums up my thoughts on the importance of looking abroad for good ideas, even in law. It's not like our Constitution was created in a vacuum nor should it be interpreted as if it were. The NY Times has a good editorial today on the influence of nativism on attitudes towards the court and those trying to stand against this backward step. This quote from Senator Kyl is particularly revealing:

I’m troubled by it,” not because foreign law would create a United States precedent, but “because it suggests that you could turn to foreign law to get good ideas.

Not quite sure how this is meant to be interpreted, and there's the caveat I have no context for it but it certainly sounds like he is troubled by the notion that good ideas could come from beyond our shores. I find the idea that anyone would find that notion troubling, troubling.

Update: Since I don't really like the use of quotes out of context I went and looked at the original video. The following is from the captions, it doesn't match up exactly with what was said in the video but it's close enough to assuage my conscience. Check out the video yourself if you'd like.

LET ME ASK YOU ONE MORE TIME ABOUT FOREIGN LAW, BECAUSE THERE HAVE BEEN SEVERAL DIFFERENT ITERATIONS OF THIS.
00:17:29 SENATOR GRASSLEY ASKED YOU AND I HAVE AN EXACT QUOTATION OF WHAT YOU SAID IN RESPONSE TO THAT YOU SAID, "WHILE YOU WERE IN FAVOR OF GOOD IDEAS COMING FROM WHEREVER YOU CAN GET THEM, THAT JUDGES SHOULDN'T BE BOUND BY FOREIGN LEGAL PRECEDENTS." AND THEN YOU CLOSE BY SAYING FUNDAMENTALLY -- OUR CONSTITUTION IS OUR OWN.
00:17:56 I HAVE SEEN THAT FORMULATION BEFORE AND I'M TROUBLED BY IT.
00:18:00 IT SUGGESTS YOU CAN TURN TO FOREIGN LAW TO GET GOOD IDEAS.
00:18:06 OF COURSE, YOU WOULDN'T BE BOUND BY FOREIGN LEGAL PRECEDENT.
00:18:09 I DOUBT THAT ANYBODY WHO USES FOREIGN LAW WOULD SUGGEST THAT THEY ARE BOUND BY FOREIGN LEGAL PRECEDENT BUT IT HASN'T STOPPED THEM FROM USING FOREIGN PRECEDENTS, LEGAL AND OTHERWISE.
00:18:23 AND SO I'M BACK TO THE QUESTION OF WHETHER YOU BELIEVE THAT DECISIONS OF FOREIGN COURTS OR LAWS ENACED BY FOREIGN LEGISLATURES SHOULD HAVE ANY BEARING ON U.S. COURT INTERPRETATION OF U.S.
00:18:39 CONSTITUTION.
00:18:41 SENATOR KYL, I DO BELIEVE THIS IS AN AMERICAN CONSTITUTION, ONE INTERPRET IT IS BY LOOKING AT THE TEXT, THE STRUCTURE OUR OWN HISTORY AND OUR OWN PRECEDENTS AND THAT FOR LYNN LAW DOES NOT HAVE PRECEDENTIAL WEIGHT.
00:18:55 THE SAME WAY A JUDGE CAN LEAD READ A LAW REVIEW ARTICLE AND SAY THAT IS AN INTERESTING PERSPECTIVE OR I LEARNED SOMETHING FROM IT I THINK THAT SO, TOO, A JUDGE MAY READ A FOREIGN JUDICIAL DECISION AND SAY, WELL, THAT'S AN INTERESTING PERSPECTIVE, I LEARNED SOMETHING FROM T SUPPOSE, YOU KNOW, WE HAVE A FOURTH AMENDMENT EX-KLUGENARY RULE, MANY COUNTRIES DON'T.
00:19:14 SUPPOSE THAT -- EXCUSE ME, BUT OF WHAT RELEVANCE IS THAT TO THE U.S.
00:19:18 CONSTITUTION?
00:19:19 WE HAVE MANY THINGS OTHER COUNTRIES DON'T BECAUSE WE HAVE A UNIQUE CONSTITUTION.
00:19:23 I'M JUST TRYING TO SUBJECT THAT IT'S OF THE SAME KIND OF RELEVANCE THAT IT WOULD BE IF YOU READ A LAW REVIEW ARTICLE ABOUT A SIMILAR SUBJECT.
00:19:30 OKAY.

It goes on for quite some time from this but this seems more than sufficient. I don't think the context changes a lot in this case, it still seems a strange thing to say.

2 comments:

  1. It's a very weird quote. Generally, lawmakers seem to resent the judiciary while looking to judges to save their sorry butts.

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  2. For press conferences you separate questions that are asked into different categories. This one is known as a question asked to make the questioner look smart. (Or feel smart-hahahaha!)

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