Justice Ruth Bader Ginsburg participated this past weekend in a symposium at Ohio State University celebrating her fifteen years on the United States Supreme Court. The premise here is that her work during this tenure is worthy of plaudits, and in deference to her illness we will waive our challenge.
She was her old vigorous self, reports the New York Times. In particular she was passionate, as her colleague Justice Breyer often is, in defense of the tendency by liberal jurists to cite foreign courts in their opinions. She explained that she does not feel bound by other decisions, but sees them as a source of wisdom that should be scanned for useful insight.
So far she has me on her side. I immediately thought of King Solomon’s words (Proverbs 24:6) that “victory comes from many counselors.” His father, King David, similarly said (Psalms 119:99): “I gained wisdom from all my teachers.” Clip those ideas from wherever they stem. Nothing wrong with reading books about law, ethics, public policy or morality by authors of any nationality; why should a judicial decision be less valid as a form of literature?
The problem is the good Justice is being disingenuous. She well knows that leftist jurists of her stripe are citing these findings from abroad as authoritative source materials. They are fashioning a global crypto-Constitution from a fluid consensus of “modern enlightened thought.” Justice Breyer, to his credit, has been more forthright about this campaign in his public utterances.
Ginsburg’s argument is patently fraudulent. To appreciate this fully, we need to examine the example she cites.
“THE POLICE THINK a suspect they apprehended knows where and when a bomb is going to go off. Can the police use torture to extract that information? In an eloquent decision by Aharon Barak, then Chief Justice of Israel, the court said, ‘Torture? Never!’ The message of the decision was that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity. Now why should I not read that opinion and be affected by its tremendous persuasive value?”
She is not sending us to read Barak’s opus with promises of voluminous argumentation, piling proof upon proof, logic upon logic. Instead she presents a précis of the rationale: don’t sink to your opponents’ level. And a précis of Barak’s irresistible magniloquence: “Torture? Never!”
This is the brilliance that is tremendously persuasive? The reasoning hardly requires a transoceanic visit to the chambers of the Israel Supreme Court. The first impulse of the civilized individual when considering torture is revulsion. It would be a sick culture indeed that could not educate its citizens to this degree of civility. This is the most obvious objection to torture: it is an atrocity and we are not atrocious people. Drop a quarter into any major urban saloon and it will hit a columnist who has at one point cycled the cliché about not sinking to the level of the terrorists. So, point one: nothing original or eye-opening here that was not available on our own shores.
Point two is that it’s baloney. No one can possibly defend this credo of never resorting to torture. The bomb she mentioned is going off. Say it will kill one person. Who are we to sacrifice that person to our genteel sensibilities? Okay, she is willing to sacrifice that person; how about two people? Ten people? A hundred people? A thousand people? Three thousand people, as in the Twin Towers? All those deaths can be shrugged away by the “tremendously persuasive” Aharon Barak: how very lovely!
So the value she cites is limited by definition. No reasonable person can put the value of not behaving like the bad guys higher than the lives of all the good guys. We can debate what the standard will be in how many lives must be on the line. We can debate how strong the evidence must be that this man knows the information we need. We can debate who should be given the authority to make those determinations. But to say we would rather our country be destroyed than ever torture a single human being is an obvious absurdity.
In fact, we could reverse the logic. If we do not want to “come to look like that enemy in our disregard for human dignity,” we have no right to let all these innocent victims die. By consciously passing up the opportunity to save people we are condemning them to horrible deaths. Moreover, a bomb going off might well produce pain in living victims equivalent to torture. Imagine ten people doomed to years of daily torture from lost limbs and shattered nerves because we refused to torture one man for one hour.
My brief today is not to advocate for torture per se. It is merely to expose the facile fallacies of another precious poseur who would like to see the United States returned to Europe.
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