A couple of items come together here regarding Constitutional interpretation in the United States (several more await attention).
This post examines the wisdom of looking to other countries for jurisprudence (or maybe jurisimprudence). I.e., the idea that foreign legal practice supplies appropriate counsel for the Supreme Court of the United States.
In the case of the “juvenile” death penalty decision Justices Kennedy and Breyer looked to alien law. So far as we know, that was Europe. They certainly paid homage to foreign countries’ “respected and significant confirmation” of the Court’s judgments.
Looking to foreign jurisdictions is a slippery slope that allows justification for almost any “legal” interpretation. That this is not obvious to 5 members of SCOTUS is worrying at the very least.
SCOTUS could just as easily defer American constitutional principle to sharia (the Islam-derived legal code whose meaning and interpretation vary according to different theological schools).
Certain interpretations of sharia demand that homosexuals be put to death; the question of their age being entirely subsidiary to the method of execution: either being thrown off a tall building or having a wall collapsed on them.
Kennedy and Breyer avoid citing this theory of punishment in their majority opinion on the “juvenile” death penalty. Instead they found foreign legal practice that reinforced their preexisting policy preferences. In principle, such as they possess, nothing would prevent them from looking to sharia for guidance in the next case.
That case could be a further ruling on first amendment free speech provisions, depending on what the Federal Election Commission perpetrates regarding Internet speech.
Our Supreme Court has already mangled free speech in upholding the McCain-Feingold campaign finance reform act, and our District Courts have demanded regulation of such speech on the Internet.
These threads come together, strangely enough, in Canada.
Ontario is now considering changes to its family law act that would place domestic (family) legal disputes under sharia.
This seems very strange. Isn’t it in domestic situations that women need the most protection? Off the top of your head, what code of laws offers them the least protection?
Given sharia as family law in Ontario, Justices Breyer and Kennedy are hoist by their own petard. Canada is about to give us an example wherein women’s status is variable based on theological sectarianism. Under some of those sectarian interpretations, women are property, as evidenced by their treatment in Saudi Arabia (where the Quran is considered the constitution), Iran, formerly in Afghanistan, and, indeed, most of the Muslim world.
Female attire is dictated by the state, unwed mothers are flogged, adulterous women are stoned to death, and “honor killing” of females is perfectly reasonable. Under sharia, the husband has the unilateral right to divorce his wife without cause. He can accomplish this by uttering the phrase “I divorce you” three times over the course of three months.
What will SCOTUS do when CAIR brings a religious discrimination suit regarding polygamy?
At one time, Breyer and Kennedy may have been able to argue that none of this is in the “western tradition”. They’ve abandoned that, however. If international law is a principle of guidance as they’ve claimed, they would have to accept that Canada’s Constitution and the laws it underpins are perfectly reasonable sources upon which to draw for American Constitutional interpretation.
This brings us, yet again, to a question of construct vs. application.
For example, the Canadian Charter of Rights and Freedoms (somewhat analogous to our Bill of Rights) says this about freedom of speech and religion in Section 2(b):
Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.
This would qualify as the construct. Let us see what that means in terms of application.
Here’s what passes for free speech in our socialist neighbor to the north:
In 1995 the Mayor of Hamilton, Ontario, was fined $5,000 by an Ontario Human Rights Commission tribunal for refusing to proclaim Gay Pride Day. In the same year the Mayor of London, Ontario, was fined $10,000 for the same offense.
Is this more case law upon which to justify de-facto (de-jure having become meaningless) constitutional modification from the SCOTUS bench?
We can hope not, because the ideas expressed in Ontario regarding family law are not American values, and the Canadian interpretation of the right to free speech is, well, that of a different country.