12 November 2005


Today's WaPo includes an interesting editorial/article on use of non-US authority in US courts. What this article really does, more than anything else, is point out the human dimension of judging.

Judicial decisionmaking—whether one characterizes it as "activist," "mere interpretation," or any other overly broad conception that contemplates no exceptions—depends upon having the best information available.1 American judges are pretty smart; they know the differences between a partial warrant and a compelling one. Persuasion is one thing; binding precedent (and, for that matter, unrefuted evidence) is another; and, considering that any judge has three years of law school and many years in practice to see the difference in action, it seems at best disingenuous to claim that the Supreme Court will routinely confuse them. This is especially true given all the "help" the Court gets from "friends" whenever a particularly difficult matter that potentially involves learning something from "foreign" law arises.

I find it ironic that many of the same people who attack the Court for its occasional reference to foreign judicial decisions and legislation—frankly, its insufficient reference to foreign judicial decisions and legislation, particularly in areas implicating international commercial relations—are the same ones who constantly exhort all branches of government to act in accordance with Judeo-Christian principles. <SARCASM> The last time I checked, Jerusalem was not in the United States. Perhaps the US should annex it, as it seems so much more important to the current ruling class's ideology and iconography than it is to either Judaism or Islam; at least then every Biblical quotation cited in support of US legal and political behavior would be domestic authority. </SARCASM>

I also find it ironic that many policymakers are unwilling to allow the Court every opportunity to persuade those involved in live disputes to resolve those disputes short of violence. For that is what the judicial system has become, as the baronial privilege of private war has eroded until it is meaningless:2 A substitute for offensive use of mercenaries in the streets to enforce private debts and obligations, among other kinds of disputes that are now settled at the point of a pen instead of the point of a knife. That so many modern disputes arise from the point of the pen in the first place—whether contractual obligations or intellectual property disputes—just strengthens this admittedly out-of-left-field analogy.

The whole point of a system of checks and balances is that not just no one, but that no two branches of our government can go too far without at least the silent acquiesence of the other. You chickenhawks may certainly criticize the actual views of the Supreme Court; that's your right, and indeed your obligation, under the Constitution.3 What you may not do—or, at least, if you believe in a Constitutional form of government you should not do—is criticize a branch other than your own for the way it struggles to do its own job, except when the Constitution explicitly gives you authority to do so (such as the power to declare war).

I may not always agree with the Supreme Court. In fact, I disagree with particular results rather frequently. However, absent specific evidence of ill intent, I am not willing to stand in the way of the Court (or lower courts) using whatever informational doors they can go through to find their way to the result that most convinces them. That's the point of a rule of law: It is not based upon immediate policy preferences, but upon systems of reasoning (whether by common-law precedent or otherwise). If an alternate system of reasoning sheds light on the dispute before one, ignoring that alternate system merely because it was "not invented here" is an inexcusable abrogation of authority.

  1. By "information," I mean both factual record and doctrinal framework. The problem of admitting evidence obtained in foreign countries that is consistent with the rules of evidence over there, but violates the rules of evidence here, is much too difficult to struggle with this early on a Saturday.
  2. Ironically, the baronial privilege of private war, and for that matter a certain level of preindustrial Balkanization, historically is far less prevalent in common-law nations than in civil-law nations. Then, too, there was civil-law-jurisdiction nonsense like the sixteenth- and seventeenth-century practices of mandating an official religion in each German principality based upon the personal religion of the reigning monarch, which frequently resulted in multiple changes in sanctioned religion during even the shortened lifespans of the First Thirty Years' War. On the other hand, it never stopped the bloodshed, either.
  3. It is also the point of the First Amendment in light of the Religious Test Clause, Art. VI cl. 3, for some values of "religion." After all, in the eyes of some any secular government that is not explicitly founded on the Ten Commandments is illegitimate… at least for some values of "neighbor" under the Tenth Commandment.