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The new term of the Supreme Court opens with a less-than-scintillating lineup of cases for the first two weeks of oral argument. Should immigration authorities use state or federal standards for drug abuse convictions? Does the holder of a patent have to wait until a complete breach of contract has occurred before filing suit? What is the correct statute of limitations for filing claims for leases when a federal agency is the lessor?

The case with the most human interest comes from the notorious Ninth Circuit. It seems that the court from our left-most coast decided to overturn a state murder conviction because three family members of the victim wore buttons to the courtroom that had a photo of the victim. One can only wish that the Supreme Court would issue its first three-word opinion in response: “You idiots! Reversed.”

Perhaps it is appropriate to use this period of relative lull at the beginning of the term to focus on something far more important than particular cases and individual decisions. American citizens need to pay a great deal more attention to the development of Supreme Court theories and doctrines than is often the case.

A recent article in the American Journal of International Law tells this story:


In the keynote address to the 2003 annual meeting of the American Society of International Law, Justice Stephen Breyer declared that “comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights.” Justice Breyer concluded that nothing could be “more exciting for an academic, practitioner, or judge than the global legal enterprise that is now upon us.” In a room filled with international lawyers and academics, he received a home court standing ovation.

Breyer’s use of the term “comparative analysis” means that the Supreme Court should use international law sources to help interpret American law, including the U.S. Constitution. The late Chief Justice Rehnquist said it even more directly: “Now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process.”

There is no doubt that the Court has already begun this process. In the 2003 decision of Lawrence v. Texas, the Court used international political and legal developments to invent a constitutional right to commit homosexual sodomy. Since this right was “found” in the 14th Amendment, one has to wonder if the Supreme Court was tacitly embracing a theory that post-Civil War lawmakers engaged in time travel so that they could be guided by the political opinions of modern western Europeans as they penned the words to the Amendment. Correct constitutional analysis asks the question: “What did these words mean to the people who wrote and ratified this provision of the Constitution?” Modern European thought is utterly irrelevant to such an approach.

Similarly, international law was used to interpret the Eighth Amendment in the 2005 decision of the Supreme Court declaring that it was unconstitutional to impose the death penalty on a juvenile murderer. The U.N. Convention on the Rights of the Child – a treaty that has never been ratified by the United States – was employed to protect the rights of a 17 year-old thrill murderer who threw an elderly woman off a bridge.

A decision last month by the European Court of Human Rights shows us what is in store if our Supreme Court continues on this path of using international sources to interpret our constitutional protections of human rights.

Germany banned homeschooling. Christian homeschooling families who faced criminal prosecutions, jail sentences and removal of their children by social services agencies raised religious freedom and parental rights claims in defense of their right to homeschool their children. Declaring that “pluralism in education” is “essential for the preservation of the ‘democratic society,’” the European high court declared that “in view of the power of the modern State, it is above all through State teaching that this aim must be realized.”

Even though the decision was addressing a home education case, no one should miss its bigger meaning. The state has the power to demand attendance at government schools so that children may receive indoctrination in today’s theories of pluralism.

Will this European decision be followed in the United States? The Supreme Court has declared parental rights to be a fundamental right, but it’s an open question whether the Supreme Court will follow its own precedents or the decisions of modern Europe. In both the death penalty case and the homosexual sodomy case, the Court used international law to overturn its own precedents.

And it must be remembered that parents’ rights are protected because the Supreme Court found such rights to be implied in the text of the 14th Amendment. Because parental rights are not listed in the specific text of the Constitution, Justice Scalia – who is no fan of international law – voted against judicial protection of parental rights.

If parental rights are going to survive as a viable legal theory for the rest of this century, it is going to be necessary to place a specific provision into the text of the Constitution. We must give conservatives like Scalia a text to rely on in order to stop the internationalists from using European law to erode our liberty to educate our children outside the orb of state efforts to indoctrinate them in pluralism.



Related special offer:

“Constitutional Chaos: What Happens When the Government Breaks Its Own Laws”

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