America and Europe are not as similar as one might imagine. And
the differences go far beyond the obvious ones of the metric
system, an affinity for placing adjectives after nouns, and a
greater acceptance of female body hair.
Though America is a spin-off, so to speak, of Europe, the
American experience since the 17th century has been one steeped in
“rugged individualism,” and personal liberty and responsibility —
values enshrined in our founding political document, the
Constitution. Most of Europe, on the other hand, has developed a
different value system, grown out of a political culture which,
until very recent times, was dominated by kings, queens, Kaisers,
emperors, military dictators, and totalitarians. The result is that
European politics do not accrue such importance to the idea of
personal liberty as do American politics.
This relative undervaluation of personal liberty in Europe is
certainly evidenced in its rush towards collectivism since the end
of World War II. But it is also evidenced in other ways. I recently
read, for instance, in the Spectator, of a man in England
who was arrested, put in jail, and had his car seized for illegally
placing a “For Sale” sign in the window of his car that was sitting
on a public street. The offender, a recent immigrant from Poland,
was probably shocked to discover that in a “free” Western European
country such as Great Britain, making such use of public streets
was a punishable offense.
Great Britain has also been in the news recently for the
decision of one town council to ban Piglet (Winnie the Pooh’s
side-kick) from government offices. After receiving a complaint
from a Muslim employee, the Dudley Metropolitan Borough Council has
forbidden from the work place all depictions of pigs and any
“pig-related items” and in particular one employee’s tissue box
decorated with characters from Winnie the Pooh, including Piglet.
Though there is no such injunction in the Koran, the Dudley
bureaucrats decided to do sharia one better, in the name tolerance,
of course. While America has its own problems with political
correctness, it is still hard to imagine an action like this being
foisted upon Americans.
In Italy, the author and journalist Oriana Fallaci is under
indictment for the “crime” of writing a book critical of the
growing Islamification of Europe. And even our cousins in Canada
are far more casual about basic free speech rights than are we.
Back in 2000, the Canadian Broadcast Standards Council decided to
censor taped episodes of the “Dr. Laura” radio show to excise any
incidents of “hate speech” which they defined as including
disapproving language regarding homosexuality or arguments against
the gay agenda — such as gay marriage or gay adoption. In an
apparent attempt to ridicule us simple Americans, an executive of
the Canadian Broadcast Standards Council commented, “In Canada we
respect free speech, but we do not worship it.” One might wonder
how the CBSC’s actions showed “respect” for free speech, but it is
a certainty that such “respect” is not the prevailing American
attitude.
And so, of course, I come to Ruth Bader Ginsburg. Ruth Bader
Ginsburg is the Clinton appointed Supreme Court Justice who
recently said, in defending the use of foreign laws and views in
deciding cases before the Supreme Court, “I will take enlightenment
wherever I can get it.”
As we have seen from the above examples, one man’s
“enlightenment” is another’s straightjacket. And what is seen as
“enlightenment” in what we might describe as kindred nations varies
greatly. So for a U.S. Supreme Court Justice to seek
“enlightenment” from foreign sources is to denigrate not just
American values, but American sovereignty. Americans are supposed
to be governed by Americans, through laws instituted by our elected
representatives under authority granted — and restricted by — the
Constitution — the document Justice Ginsburg swore to uphold. But
under the Ginsburg formula, she, or any other Supreme Court
Justice, should be free to take instruction from Canada’s treatment
of Dr. Laura, or Italy’s treatment of Oriana Fallaci and, if
supported by four other Justices, use it as justification to
reshape the law of the land regardless of American opinion or the
Constitution.
It is our Constitution which protects us from the arbitrary
power of petty magistrates and national legislatures alike. It is
what protects the freedoms that we hold dear — whether or not
those freedoms are held dear in foreign lands — including the
rights of free speech, rights against unreasonable searches and
seizures, and, until recently, the right not to have our property
seized by the government to be handed over to other private
citizens.
Unfortunately, the Ginsburg view of looking for foreign
“enlightenment” to justify trashing the U.S. Constitution is, to
varying degrees, held by a majority of the current Supreme Court.
Of course, Justice Ginsburg’s “enlightenment” argument really is
the old “living document” argument — that the Constitution is
subject to ratification not just by the strict procedures provided
for in Article V, but also by Supreme Court Justices who can
consider “contemporary thought” (i.e., their own) in deciding
Constitutional cases, and using whatever extra-constitutional
justification may be at hand to provide a legal veneer.
American liberals have long thought that the U.S. should be more
like a European welfare state and that parochial America needs to
follow the example of more “progressive” nations. That’s why
American liberals claim Justice Ginsburg to be of the judicial
“mainstream.” To many liberals, the Constitution is a key
impediment to making America the collectivist, nanny-state of their
dreams, so they, like Justice Ginsburg, are keen to find any source
of “enlightenment” aimed at dismantling its inconvenient
strictures.
So the nomination of judicial conservatives to serve on the
Supreme Court is pretty important to the preservation of American
freedom. And President Bush has made nominating to the federal
judiciary “originalists” — those who follow the Constitution
rather than “legislate from the bench” — a cornerstone of his
presidency. Knowing that, I am rather puzzled by the extraordinary
calls from some segments of the American right who think that
because Harriet Miers was not on any of their shortlists and (like
many other previous nominees, including the late William Renquist)
does not have a judicial record as long as her arm to waive about
as evidence of her bona fides as an “originalist,” that her
nomination is somehow a “betrayal.” Her nomination took me off
guard, too, but given that President Bush has known her for more
than a decade and that she has played a key role in Bush’s solid
nominations to the federal bench — including the likes of Janice
Rogers Brown, Priscilla Owen, and John Roberts — I don’t have any
worries at all about her suitability at this point, and she should
be given the chance to demonstrate what we are told is her sharp
legal mind in hearings before prominent conservatives throw her
under the bus.
And the argument that by not nominating a high-profile
conservative judge that the President has missed an opportunity to
forward the debate on judicial activism, strikes me as off the
mark. If anything, the nomination of Harriet Miers makes that
debate easier, as she does not have a judicial record that
Democrats like Ted Kennedy, Pat Leahy, and Chuck Schumer can use to
muddy the waters by distorting attempts to thwart constitutionally
unauthorized government power-grabs as evidence of “hostility to
the advancement of women and minorities” or other such hogwash.
Instead, the debate can now be centered squarely on judicial
philosophy.
In this regard, Justice Ginsburg has provided us a great service
by putting the issue so succinctly. The first question senators
should ask of Harriet Miers, and every future nominee, is to what
extent should the laws and attitudes of foreign nations influence
Supreme Court decisions? Any nominee who suggests that the answer
is any at all, should be identified as “out of the mainstream” and
rejected. That is an argument that certainly will be understood and
supported by the majority of the American people.
