The following is an exerpt from:
disc.server.com...
The trend ignited in 2002 when the Supreme Court ruled that executing the mentally retarded violated the U.S. Constitution's prohibition against
cruel and unusual punishment found in the Eighth Amendment. In doing so, Justice John Paul Stevens wrote that "within the world community, the
imposition of the death penalty for crimes committed by mentally retarded defenders is overwhelmingly disapproved." Justice Stevens went on to point
out that even Communist China refuses to execute the mentally retarded.
The justices followed that up in 2003 when Justice Anthony Kennedy, in a decision that struck down Texas' sodomy law as being unconstitutional, cited
a 1981 ruling by the European Court of Human Rights that expanded gay rights.
Justice Ruth Bader Ginsberg, in her opinion last year that permitted affirmative action programs in U.S. law schools, cited the International
Convention on the Elimination of All Forms of Racial Discrimination.
In a speech last October, Justice Sandra Day O'Connor said that she believed the Supreme Court "will rely increasingly on international and foreign
courts in examining domestic issues."
"Several of the justices have clearly indicated that this is a trend that will continue," says Southern Methodist University law dean John
Attanasio, who points out that law schools across the country are starting to adjust their constitutional law curricula to address the swing.
"The U.S. Supreme Court has been a major force in promoting the rule of law throughout the world," he says. "But if other countries' courts are
citing the U.S. courts, but there's no reciprocity, then it is difficult for the U.S. to remain a leader in the development of international
law."
Dean Attanasio and other legal scholars say the trend can largely be attributed to the recent international travels by the U.S. justices to interact
with their foreign counterparts.
"The set of justices who strongly support the movement Justices O'Connor, Kennedy, Ginsberg and Stephen Breyer are the ones who regularly travel
abroad to meet with judges and legal authorities," says Mr. Baker. "The American justices have come to view the foreign judges as their peer
group.
"I guarantee you that judges abroad give the American justices a very hard time about the death penalty in America," he says. "That has an
impact."
Legal experts say the American justices are referring to the international court decisions the same way they do law reviews not as controlling
authority but as advice or guidance on how others think laws should be interpreted.
"The danger would be if the U.S. Supreme Court considered the decisions by international courts to be precedents binding on our courts," says Mr.
Attanasio. "Then that would threaten or compromise our sovereignty as a constitutional democracy. All we're saying is that these foreign court
decisions should be looked at, considered and viewed as possibly persuasive."
But even that is improper, according to one of the high court's own, Justice Antonin Scalia.
"The court's discussion of these foreign views ... is meaningless dicta, dangerous dicta, since this court should not impose foreign moods, fads or
fashions on Americans," Justice Scalia wrote in dissent in the Texas sodomy case.
U.S. Rep. Tom Feeney (R-Fla.) is so outraged by the trend that he introduced a resolution that advises the Supreme Court that it is "improper for
them to substitute foreign law for American law or the American Constitution."
Okay, maybe I pasted a bit more than was necessary, but surely I made my point! Do we need to start pulling out of a few treaties to get the message
across to the Supreme Court? Foreign Laws should NOT trump U.S. Law, and ESPECIALLY NOT the Constitution!
