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VOL. 8, NO. 4Mar. 21, 2006
"Who Ultimate Rules-the Courts or the Constitution?, III."
By Virginia Armstrong, Ph.D., National Chairman

We have been discussing the constitutional dangers created by an excessive court reliance on precedent — or court decisions — rather than on the Constitution as the basic law of the land. These dangers include threats to the "3 Cs" — critical characteristics which any legal system must embody if it is to survive and thrive. The first two C's are certainty and consistency. In this "Briefing," we examine the third of the 3 C's-continuity. Continuity requires that a legal system embody continuous judicial decisions. That is, current decisions must be consistent with past decisions unless there is authoritative, compelling reason for change in the decisions (the most compelling being that the U. S. Constitution demands the change).

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One of the most treacherously DISCONTINUOUS bodies of judicial decisions in current American law is the courts' invocation of foreign/international law. In a 2003 decision throwing out the Texas sodomy law, the Court engaged in inconsistent decision-making-breaking with existing and traditional law to a breath-taking degree (Lawrence v. Texas). The Court openly rejected its 1986 decision upholding a Georgia sodomy law (Bowers v. Hardwick).

This might seem like the Court is creating problems by evading precedent, rather than adhering excessively to precedent. But the Court in Lawrence relied greatly on a pre-Bowers decision — Griswold v. Connecticut (1965). In Griswold, the Court openly created a new right-the "right to privacy." While acknowledging that this "right" is not expressed in the Constitution's text, the Court found the "right to privacy' to be lurking in constitutional shadows — in the "penumbras formed by emanations from those guarantees [that are listed]-that help give them life and substance."

The Court listed as those guarantees whose "emanations" encompassed a "right to privacy" the Third, Fourth, Fifth, and Ninth Amendments — none of which even remotely protects any alleged "homosexual rights." The Court also mentioned the First Amendment's "right to association" — a "right" not expressed in the text but also lurking in the "penumbra" of the listed Bill of Rights. So the Court created one "right" — "freedom of association," and then create on the shoulders of that Court-ordained right another Court-created right — the "right to privacy." This invocation of precedent clearly reduces the Constitution to "a blank page" and opens the door for the Court to create a highly discontinuous patchwork of "precedents" based only on its own created "rights" and interpretations.

In its Lawrence decision the Supreme Court openly and enthusiastically ruled that Texas's sodomy law must be evaluated in the light of "the laws and traditions in the past half century." The Court thus openly threw out millennia of Judeo-Christian legal history, 600 years of English Common Law history, and 200 years of American legal history. The last 50 years were the Court's touchstone for its landmark pro-sodomy decision — DISCONTINUITY to the ultimate degree.

But that's not all. In place of our Constitutional bulwark of law and justice the Court substituted "contemporary non-American sources" including the recent English and European pro-sodomy law. These sources included Britain's Wolfenden Committee, the European Court of Human Rights, and the European Convention on Human Rights.

The Lawrence Court's invocation of foreign and international law constitutes a deadly danger to America's sovereignty and our liberties as a free people. But even more threatening is the Justices' propensity to reference non-American law to an increasing degree. In 1999, Justice Breyer, dissenting in Knight v. Florida (a 1999 death sentence case), focused much of his opinion on foreign/international law. His sources included Jamaica, India, Zimbabwe, Canada, the UN Committee on Human Rights, the European Convention on Human Rights, and the European Court of Human Rights. American constitutionalists should cringe at this infamous list. There is reason for further alarm in Breyer's assertion that his foray outside of American law is justified because "the foreign courts I have mentioned have considered roughly comparable questions under roughly comparable legal standards." Finding the majestic legal standards of our Constitution to be "roughly comparable" to the legal standards of ANY other nation — especially India, Jamaica, and Zimbabwe — is an incredibly ignorant, if not treasonous, offense.

Another member of the Globalism Gang, Justice Ginsburg, touted international sources in her concurring opinion in Grutter v. Bollinger (2003). Here the Court upheld a University of Michigan Law School's affirmative action program. Ginsburg began her opinion by citing the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women. These instruments, she opined, express "the international understanding of the office of affirmative action."

The Court relied on Griswold's "right to privacy" (which had nothing to do with homosexuality) and rejected the 1986 Bowers decision (which focused on sodomy). The Court's precedent of choice was an older case not dealing with sodomy; the newer case, which did directly address homosexual rights, was discarded by the Court. This cafeteria line approach to the use of precedent runs counter to rules of interpretation long-established and proven to provide the most appropriate and usable tools of interpretation. DISCONTINUITY, and the Constitution loses.

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