HOUSTON – Have activist justices on the U.S. Supreme Court dumped the U.S. Constitution, beguiled with foreign law enticements?

The high court’s trend toward citing foreign legal authority is the head-shaking “hot topic” talk in legal circles these days. The Court’s new foreign love first received international publicity in a landmark sodomy case that came to them from my county court in Houston, Texas.

In Lawrence v. Texas – the U.S. Supreme Court case which struck down anti-sodomy laws across America – the majority justices cited international law as a decisional basis … the beginning of a move away from using the U.S. Constitution as authority, the very document the court is appointed to interpret.

So not only was the Lawrence court hijacked by a set-up case of invited arrests, as I document in my non-fiction book “Sex Appealed: Was the U.S. Supreme Court Fooled?” but the majority justices, perhaps unsure that the U.S. Constitution provided sufficient legal support for their culture-altering Lawrence decision, cited international law as a justification.

The high court’s 6-3 decision favoring Lawrence is the trigger event kicking away roadblocks to gay marriage, fueling a continuing cultural war over adoption, employee benefits, and the military’s Don’t-Ask-Don’t-Tell policy.

Isn’t the U.S. Constitution good enough anymore?

It is the question I would have asked Judge John Roberts, and the question I hope is asked of White House Counsel Harriet Miers in her confirmation hearings.

Wordsmith Justice Antonin Scalia, in his scathing Lawrence dissent, noted “The court’s discussion of these foreign views (ignoring of course the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta however, since ‘this Court … should not impose foreign moods, fads, or fashions on Americans’,” Scalia wrote.

It’s not that Americans are xenophobes. It is that it is our Constitution! Neither age nor importunings of fickle fashion will ever obscure the document’s beauty and suitability as a legal yardstick.

For those who hoped the majority’s reliance on foreign law was a momentary lapse just for Lawrence – this year, in Roper v. Simmons, the majority again relied in part on international law, instead of our U.S. Constitution, to limit the death penalty to convicted persons over age 18.

In fiery Roper v. Simmons dissent, Justice Scalia railed against the court’s casting aside our U.S. Constitution in favor of foreign law as authority – writing sarcastically: “Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.”

In Simmons, Justice Scalia continued lashing out at his activist judicial colleagues, as he had in Lawrence, writing: “… I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.”

When witty Scalia spoke May 4 in Houston to the Federalist Society, an audience member almost immediately asked him about the foreign dalliances of the Court’s majority.

Scalia, who has the timing of a professional comic, spoofed his colleagues. To paraphrase: They think we [conservatives] are country bumpkins who just fell off a turnip truck. “Au contraire!” he deadpanned in perfect French, joining his audience in raucous laughter.

With two new appointments to America’s high tribunal, court watchers are waiting to see if the reconfigured court will continue it’s intellectual journey abroad.


Read “Sex Appealed: Was the U.S. Supreme Court Fooled?” Spread the word. Turn the tide. Take America back.

Note: Read our discussion guidelines before commenting.