The Feld-Blog

Most people in this country can't even name 2 Supreme Court Justices. Still, someone who pays close enough attention to politics to know the names of O'Connor and Ginsburg and their styles of constitutional interpretation has threatened to kill them. I suppose it is not uncommon for far-right or far-left politicians, whether serving in the judicial, legislative or executive branches, to receive death threats. This country has seen, time and time again, when people 'violently' disagree, violence can occur. What is curious about this death threat, however, is that it targeted two relatively centrist Supreme Court Justices, one of whom had already retired from the bench.

What an obscure rationale for a death threat! Read the article. I know that this is a very serious issue, but it almost feels surreal to me.

O'Connor and Ginsburg's lives are being threatened because they sometimes refer to international law when writing their court opinions. Ok.... First of all, O'Connor and Ginsburg are not the only justices to refer to international law. Many justices throughout history have done this, perhaps most poignantly in American civil rights and slavery cases. The Somerset case, which was cited off and on during the crusade for civil rights in the 60s and in the debates over Plessy v. Fergueson and even stretching back to Dredd Scott v. Sanford, was a British Case where Lord Mansfield, the presiding judge, declared that "The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political."

Many politicians and federal judges argue that citing international law to support an American Supreme Court decision imperils the protections conferred upon us by our Constitution; Justice Antonin Scalia is amongst the most vocal. Scalia bases his argument on 'Originalism,' a doctrine of constitutional interpretation to which he subscribes which hold that constitutional clauses must be interpreted as originally intended and understood by the framers and ratifiers. Let us leave untouched, for the moment, the inherent and overwhelming complexity of sifting though the mountain of different intentions and understandings that surround and support any given constitutional provision. Even if we could pin down a single original meaning, our world is quickly becoming irreversibly interconnected. As globalization sprints forward, no proposed policy or constitutional clause can avoid international debate and scrutiny. Although members of other countries may never have a vote in ratifying any American Constitutional amendment, their understandings of the intent and execution of American policy certainly and undeniably plays a role in its 'Original Meaning.'

So Mr. Justice Antonin Scalia... You are an originalist, why don’t YOU cite international law when discussing more modern laws and constitutional amendments? It seems to me that as globalization continues, you can't be a true originalist without considering international law.