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March 03, 2005
A few foreign thoughts
I've been rather enjoying the debate over whether or not "foreign" law should be considered as a source of American law, or constitutional law. At the outset, let me state that I don't think any foreign law should supersede or in any way be controlling over the Constitution. But what is foreign law? Much of what Americans call "our" law is actually British common law, as it had existed for centuries, and as eventually collected by Blackstone. I don't think too many people will dispute that Great Britain is a foreign country. While I am as tired as anyone of liberal jurists seeking extraconstitutional sources of law to support unconstitutional bootstrapping, are they the only ones who've done it? Consider the following opinion by Chief Justice Burger in Bowers v. Hardwick: Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality [p197] and the Western Christian Tradition 70-81 (1975). During the English Reformation, when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." 4 W. Blackstone, Commentaries *215.Are these not references to foreign law? If only liberals resort to foreign law, doesn't that make Warren Burger a liberal? And what about the issue of the Decalogue, best known as the Ten Commandments? Accepting for the sake of argument that God handed the original tablets to Moses, they were intended as law for the ancient Hebrews. How do they become a part of constitutional law in the United States of America without resort to what is clearly extraconstitutional (and definitely foreign) law? Am I a religious heretic for believing the Constitution trumps foreign law? Obviously, I'm missing something, as usual. . . By the way, I'm not advocating anarchy here. There's nothing wrong with the ideas expressed in, or the philosophical basis of, most of the Ten Commandments -- most of which have been codified into law in every state. But a line is crossed when a certain deity (and a particular interpretation of that deity) is elevated above all others. It is one thing to proscribe murder, but quite another to require keeping the Sabbath. The founders knew that. Which is why they kept such foreign stuff out of the Constitution. posted by Eric on 03.03.05 at 11:32 AM
Comments
Excellent analysis, Eric. I've thought the same thing ever since the moral collectivists began attacking Lawrence and Garner vs. Texas (June 26, 2003). By the way, it was the Burger Court that legalized abortion on demand. How can you have a right to kill your own child but not the right to make love in your own home? Ridiculous! Bowers vs. Hardwick ranks with Dred Scott vs. Sanford as one of the lowest points in our Supreme Court's otherwise illustrious history. I must say, though, that I rather like this Rehnquist Court. It has made a number of excellent decisions upholding our rights. Steven Malcolm Anderson (Cato theElder) the Lesbian-worshipping man's-man-admiring myth-based egoist · March 3, 2005 07:14 PM That trunk-and-branch argument is interesting, I must admit. Well put. but the Ten Commandments as a whole cannot be enforced as law in the United States. The First Commandment, which forbids worship of any Deity other than the God of the Hebrews, is inconsistent with the First Amendment, which protects the free exercise of religion for all, whether Hebrew, Hindu, or Asatru. Sabbath, etc., also. And if the commandment in Leviticus 20:13, demanding death for male-on-male "buggery", is to be enforced, then all the dietary laws of the Old Testament must be enforced also. That would put the pig farmers out of business. Steven Malcolm Anderson (Cato theElder) the Lesbian-worshipping man's-man-admiring myth-based egoist · March 3, 2005 07:24 PM "Moral collectivists!" So simple. So deadly accurate. Steven, you are indeed a gift from the gods. Eric Scheie · March 4, 2005 09:08 AM Dear Eric: Thank you! Steven Malcolm Anderson (Cato theElder) the Lesbian-worshipping man's-man-admiring myth-based egoist · March 4, 2005 03:32 PM |
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It's a trunk and branch thing. Burger cites precedents from which current law is based (moving from the trunk to the US branch of the law), while others try to graft twigs from other nations onto the US branch.