Elena Kagan

Supreme Court nominee Elena Kagan’s press for considering international law as “the context” for interpreting U.S. law has incited worries her appointment could pave the way for world treaties that threaten both parental rights and homeschooling in the United States.

A statement from the Home School Legal Defense Association points to Kagan’s decision as dean of Harvard Law School to require first-year students to study international law:

“From the start, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe,” reads a letter from Kagan and Harvard’s Curricular Innovations Committee advocating the requirement. “Specifically, we recommend the development of three foundation courses … each of which represents a door into the global sphere that students will use as context for U.S. law.”

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The HSLDA argues Kagan’s actions and words demonstrate a belief that the U.S. Constitution needs to be examined through a “lens” of international opinion.

“HSLDA believes that this philosophy will come in direct conflict with a Supreme Court justice’s role,” the statement reads. “Judges should not look to international law and the decisions of foreign nations in order to interpret the U.S. Constitution and apply it to disputes today.”

Specifically, the HSLDA is concerned Kagan may push the Supreme Court to consider a pair of United Nations treaties – the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women – as relevant to cases in the U.S.

“These are dangerous treaties because they would severely restrict parental rights and homeschooling,” the HSLDA contends. “If the (Convention on the Rights of the Child) were to be ratified by the Senate, the government would have the ability to override every decision made by parents by asserting the parents were not acting in the best interest of the child. The United States is one of the few countries in the world that have not ratified these treaties.”

“Although the U.S. Senate has not ratified these treaties,” the HSLDA continues, “we are very concerned that U.S. Supreme Court justices may attempt to incorporate these treaties into their decisions as customary international law. It would be perilous to parental rights to have a justice on the court who values foreign treaties above the U.S. Constitution because whenever a justice uses an unratified treaty in a Supreme Court decision, the treaty becomes precedent – a precedent lower courts can use.”

Kagan’s views on international law have also drawn criticism from The Heritage Foundation, a research and educational institution that advocates limited government and individual freedom.

“These questions about the Constitution and international law are particularly pertinent to consideration of the Kagan nomination,” writes Jeremy A. Rabkin, professor of law at George Mason University School of Law in an extensive Heritage Foundation report. “To begin with, there is her endorsement of the Harvard policy requiring the study of international law while maintaining the lack of any requirement for the study of constitutional law. She cannot claim lack of experience with relevant materials, if she is asked [in confirmation hearings] why (or to what extent) she thinks international law is more important to training future lawyers than American constitutional law. Her answers to such questions should be quite instructive.”

Prof. Rabkin’s report also points out Kagan’s choice of Chief Justice Aharon Barak of the Israel Supreme Court as her “judicial hero,” calling him “the judge who has best advanced democracy, human rights, the rule of law and justice.”

“Justice Barak was certainly a jurist of remarkable confidence – he makes activist judges in America look timid by comparison,” objects Rabkin. “He was known for filling gaps by invoking standards from other countries – so much so that he made it a practice to hire at least one clerk each year from a foreign country (that is, a clerk whose legal training had been acquired in a foreign country rather than in Israel). … Senators should ask Elena Kagan, which practices of Chief Justice Barak does she think American judges would do well to emulate?”

Both the HSLDA and the Heritage Foundation are encouraging concerned citizens to contact their senators to demand Kagan be questioned about the role of international law in affecting Supreme Court decisions.

Kagan’s views on international law have also prompted WND’s Joseph Farah to launch a two-pronged campaign to block the nominee’s appointment to the Supreme Court.

In addition to an online petition to the Senate opposing her confirmation, Farah has announced a campaign to inundate senators with thousands of letters calling for her rejection for a lifelong appointment to the U.S. Supreme Court.

“Kagan is not what Americans want and she is not what the country needs,” the letter reads in part. “At a time when Americans are recognizing the unique blessings of their Constitution, she advocates the consideration of foreign laws in shaping Supreme Court rulings.”

“I urge everyone to sign the petition and take part in this easy, simple, effective and inexpensive campaign to bombard the Senate with opposition to this nominee,” said Farah.

The letter campaign is based on previously successful efforts in which nearly 10 million “pink slips” were delivered to members of Congress opposing nationalization of health care, cap-and-trade legislation, hate-crimes laws and other bills, as well as the current campaign to stop amnesty in the U.S. Senate.

The “stop Kagan” campaign allows any American citizen to generate 100 individually addressed letters to every U.S. senator, each including the name of the sender and all delivered by FedEx for the low price of just $24.95. That comes out to less than the cost of snail-mailing the 100 letters yourself.

Sign the petition or send senators the letter.

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