Foreign Influence on U.S. law.

[mostpost]

There have been a number of postings here lately expressing outrage at Ruth Bader Ginsburg for suggesting that foreign law or foreign court decisions should be taken into account in deciding cases before U.S. Courts. This outrage ignores the fact that much of our Constitution is based on English common law and other foreign sources. The purpose of this thread will be to discuss these origins.

We begin with the first amendment.
Congress shall make to law...abridging the freedom of speech or of the press.
In 1758, thirty years before out Constitution was ratified, Blackstone said, "in laying NO previous restraints upon publications, and not in freedom from censure for criminal matter when published. EVERY FREEMAN has an undoubted right to lay what sentiments he pleases before the public; . . . but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.
That is, he will be held accountable, by criminal proceeding or in civil action for damages, should he slander or libel another. And his oral and written speech is subject to restriction by the police power for the protection of the moral health of the community. Nor is he free to advocate the overthrow of civil order." . .

In 1771, following the publication of imperfect reports of the debates in Parliament, the sessions of which were then in secret, the House of Commons issued a proclamation forbidding the publication of debates. A printer who disobeyed and who ignored a summons to appear at the bar of the House was arrested by its messenger. The magistrate of London released him on the ground that the proclamation was without legal force. Then the House sent the lord mayor of the city to the Tower, but the crowds that followed him showed the Parliament that public opinion was against it. Further attempt to prevent reports was not made. "The first English Journals," says Green ("The English People", Vol. 5, sec. 1504), "date from this time."

The first amendment also states:
Congress shall make no law abridging....the right of the people to assemble and to petition the government for the redress of grievances.

This right already existed in customary law. In the colonial Declaration of Rights of October 19, 1765, it was said "that it is the right of British subjects in these Colonies to petition the King or either House of Parliament";
It also existed in English law and tradition.

n the Declaration of Rights submitted by Parliament to William III and Mary (1689) and accepted by them, it was said that the right to petition the King existed and that the prosecution of petitioners which had taken place was illegal. It was considered so valuable by our forefathers that it was protected by this express provision. Assemblies for the discussion of their rights and petitions for the correction of their wrongs had been repeatedly employed by the colonists.

These are not rights that rose up unbidden after the Revolutionary War. They existed in other countries at the time-though not many. They existed as long ago as Greece in the 5th Century BC and during the Romn republic.

[tucker6]

well, all law started somewhere else Mostie. We didn't just invent it in the 1780's. The point is that we took ideas from others and made it our own. Once you do that, there is no need to go back 200 years later and see what the originator country has done with that particular law. We are different. They are different.

Send Ruth to a home for the aged.

[Tom]

All well and good, but we have the Constitution, which is singed, sealed, and delivered, and people fought and died for it.

The FF were quite specific what they want to include and exclude, and they provide us the protocol to amend the thing in future generations, as we saw the need. And that has been done many times.

I have said this many times, if you guys are not happy with it, ie, the 2nd amendment, then you have the means to change it. Get off your butts and do it. Should not be a big deal if you have half the popular support you claim you do.

I guess it is easier to sit and whine.

[Saratoga_Mike]

It isn't surprising to see MP take Breyer's (and RBG's) position on this matter. With the exception of international law cases, it is never appropriate for the SC to look to other country's laws/constitutions when determining a case. By following Breyer/RBG's approach, the justices can simply look to international law as an interpretive buffet, picking and choosing from various countries to justify literally any opinion. Horrible idea MP.

[Clocker]

Originally Posted by mostpost

[A bunch of cut and paste verbiage without attribution or citation of source.]

It is appropriate for Congress to consider the laws of other lands in writing legislation if it so wishes. It is not appropriate for SCOTUS to do so in ruling on cases before it.

The purpose of a court, especially an appeals court, is to decide whether or not the issue under consideration conforms with the law. To consider anything other than the law is to legislate from the bench. The ultimate law of this land is the Constitution.

A judge in Iowa cannot use California law to decide a case involving Iowa law. That judge can only look at Iowa law in deciding a case. How could it be any different at the federal level.

[Clocker]

Originally Posted by Saratoga_Mike

By following Breyer/RBG's approach, the justices can simply look to international law as an interpretive buffet, picking and choosing from various countries to justify literally any opinion. Horrible idea MP.

And what happens if English law says one thing and French law says the opposite? The laws of both countries influenced our Founders.

Oh, wait. Maybe the Founders wrote down the answer to that question somewhere. Where could it be?

[Saratoga_Mike]

By the way, Scalia and Breyer debated this very issue a few years ago. One of the debates was shown on C-SPAN.

[Parkview_Pirate]

Originally Posted by Clocker

And what happens if English law says one thing and French law says the opposite? The laws of both countries influenced our Founders.

Oh, wait. Maybe the Founders wrote down the answer to that question somewhere. Where could it be?

Err, I think the Founders wrote that down in a document which today is presenting many obstacles to the globalists, and is therefore ignored or consider "flawed".

Mostie once again shows his true colors - or rather color - RED

[boxcar]

Originally Posted by tucker6

well, all law started somewhere else Mostie. We didn't just invent it in the 1780's. The point is that we took ideas from others and made it our own. Once you do that, there is no need to go back 200 years later and see what the originator country has done with that particular law. We are different. They are different.

Send Ruth to a home for the aged.

Took the words right out of my mouth, Tucker. All law originates somewhere else. And then when this law or that law becomes the Law of OUR Land, we no longer have need for the intrusion of foreign law to govern our domestic affairs.

[mostpost]

Originally Posted by tucker6

well, all law started somewhere else Mostie. We didn't just invent it in the 1780's. The point is that we took ideas from others and made it our own. Once you do that, there is no need to go back 200 years later and see what the originator country has done with that particular law. We are different. They are different.

Send Ruth to a home for the aged.

Ruth at 83 is sharper than you are at whatever age you are.

[mostpost]

Originally Posted by Saratoga_Mike

It isn't surprising to see MP take Breyer's (and RBG's) position on this matter. With the exception of international law cases, it is never appropriate for the SC to look to other country's laws/constitutions when determining a case. By following Breyer/RBG's approach, the justices can simply look to international law as an interpretive buffet, picking and choosing from various countries to justify literally any opinion. Horrible idea MP.

You're misinterpreting what she said. Ginsburg advocates the use of foreign court decisions as tools in interpreting our laws just as we use other tools.
As she puts it;

Judges in the United States, after all, are free to consult all manner of commentary — Restatements, Treatises, what law professors or even law students write copiously in law reviews, and, in the internet age, any number of legal blogs. If we can consult those sources, why not the analysis of a question similar to the one we confront contained, for example, in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?

Why not use all the resources available? It isn't a matter of foreign law superseding U.S. law. It is just using every available tool to interpret that law in the best way possible.

[tucker6]

Originally Posted by mostpost

Ruth at 83 is sharper than you are at whatever age you are.

Your lack of substantive rebuttal while initiating an ad hominem attack is noted.

[rastajenk]

How frequently do other countries look to our Supreme Court for guidance?

Just asking.

[Tom]

Originally Posted by mostpost

Ruth at 83 is sharper than you are at whatever age you are.

Year, right.
That geezer is as sharp as Kent Desormeaux riding in a Belmont Stakes.

[dartman51]

Originally Posted by Saratoga_Mike

It isn't surprising to see MP take Breyer's (and RBG's) position on this matter. With the exception of international law cases, it is never appropriate for the SC to look to other country's laws/constitutions when determining a case. By following Breyer/RBG's approach, the justices can simply look to international law as an interpretive buffet, picking and choosing from various countries to justify literally any opinion. Horrible idea MP.

Like that's his first??