.
"I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law [when handing down court rulings] . . . ."
Well, you know what? I believe her. She and her fellow travelers really don't understand. That is, they don't grasp the correct legal philosophy well enough to understand what they're rejecting.
Note that I called the legal philosophy "correct" and not "strict constructionism," and for good reason. When you call it correct, it follows that other positions are incorrect. But what is the other side of the coin of constructionism? It would be living-document legal philosophies. To accept these categorizations implies that we just have a bunch of different credible perspectives on constitutional law, and who is to say what is correct? Call it legal relativism... [snip]
She added that the failure to engage foreign decisions had resulted in diminished influence for the Supreme Court.
The Canadian Supreme Court, she said, is ‘probably cited more widely abroad than the U.S. Supreme Court.' There is one reason for that, she said: ‘You will not be listened to if you don't listen to others.'"
This is a striking statement, and it vindicates something I've long believed. I once wrote that part of the problem with our judges is that they're not content to just be judges. A judge is much like a referee at a baseball game. It's not his place to make or alter the rulebook (Constitution); his is simply to determine whether or not it has been violated. His like or dislike of a rule shouldn't come into play.
Yet today we have judges who would be kings. They're not satisfied to just referee; that's too small a role for them. They want to be agents of activism, molders of men, shapers of society -- and they want the ego satisfaction attending such status... [snip]
The point is that activist judges undermine the rule of law by setting an example of contempt for it.
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