In a recent lecture at Ohio State University, Justice Ruth Bader Ginsburg offered a theory as to why nations created judicial systems post World War II with the power to revoke legislation found to be contrary to their own constitutions. “What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.”
And judges can?
Her remark demonstrates frightening incognizance of history, specifically the Nuremberg trials, the third of which was against sixteen German jurists and lawyers. In that case the defendants were accused and most were ultimately convicted of, amongst other things, “War crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, plunder or private property.” It was through them that Hitler was able to effect his “racial purity” program. They provided the illusion and stamp of legitimacy.
The point is that judges are just human beings, political appointees no more removed from passion or prejudice, no more moral or immoral, no less subject than anyone else to the abuses that power — and indeed, near absolute power — necessarily brings. Yes, judicial review is a mechanism by which the courts can protect whatever “rights” it finds to be fashionable at a given moment in history. But it also empowers a court to remove those rights.
In the same talk, Justice Ginsburg remarked that she doesn’t “understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law” in the Supreme Court’s interpretation of American law. She went on to ask rhetorically “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?”
Why? Because the issue is not simply a matter of wisdom, but also of values, that’s why. Our laws, after all, are really nothing more than our values codified. To look to other nations in the interpretation of our law is to graft their value systems onto our own. The potential consequences are alarming. Imagine looking to Afghanistan, which recently legalized rape, to interpret anything to do with women’s rights. Imagine looking to China to interpret our First Amendment rights to free speech, free press, and freedom of religion. Imagine looking to Iran to interpret our Eight Amendment right against cruel and unusual punishment. And while it is true that our Supreme Court has not (yet) gone to that extreme, they have only avoided it by creating a value judgment of their own, and a questionable one at that: effectively that when they look to foreign jurisdictions for guidance, they consider only white, European countries.
At least by limiting our courts to interpreting our laws by our own history as opposed to those of foreign jurisdictions, we can control those interpretations. But by ignoring history and pretending that judges are somehow above the possibility — indeed, likelihood — that they will abuse their power, and by allowing them to transpose foreign values onto our own, we invite the very erosion of rights that our democratic system is designed to provide, and that ultimately, only God can secure.