My more liberal friends often talk to me about the “living Constitution”, one that changes with the shifting moods of the electorate. They do so as if this was a good thing, something that should be lauded and encouraged. They also agree with the leftist elements of the judiciary who think we should show more deference to foreign law, and incorporate that into our own deliberations and rulings, in the process making us a more inclusive part of the global community. On the contrary, the strength of our nation lies in the fact that we are a nation of the rule of law, not the rule of man. It is the very foundation of our national structure. The concept of the highest law in our land being fluid depending on the temporary mood of the people is the equivalent of building a house on a shifting foundation. Inevitably that house will come crashing down.
Last year, Supreme Court Justice Ruth Bader Ginsberg said in a speech that “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?”
Indeed, the court has referenced external law in numerous cases over the last few years, including Lawrence v. Texas (ruling all anti-sodomy laws unconstitutional), Roper v. Simmons (ruling unconstitutional capital punishment for minors under age 18), Boumediene v. Bush and Hamdan v. Rumsfeld (both dealing with the question of granting terrorist detainees the constitutional rights traditionally afforded to only U.S. citizens).