We All Have to Follow the Law 

This post by Ann Althouse got me commenting on her blog... and then got me thinking. Justice O'Connor thinks that the controversy over citing foreign law in Supreme Court decisions is much ado about nothing:

"This is much ado about nothing," she said in response to a question by moderator Tim Russert of NBC. "Our Constitution is one that evolves. What's the best way to know? State legislatures -- but it doesn't hurt to know what other countries are doing."

In my normally sarcastic way... I had to respond:

Thats interesting... and here I thought our Constitution evolved by beign amended through the democratic process. Silly me.

To which Ann responded:

The interesting thing to me about that quote is that she removes her own agency. She doesn't say "I have decided to interpret the Constitution so that it can evolve." It's just out there, evolving, and she observes that it has evolved. Oh, look at that. It's become something different. She ought to defend the notion of a living Constitution, so that people like Nick who haven't studied law will be able to understand how it is justified.

It went on... but you get the point. I'm going to assume that Ann's comment about my not having studied law is not meant to say that I have no right to comment... because that would just be asinine. I'm going to take it to mean that people who talk about these issues need to use non-lawyer speak, and making fewer assumptions about prior knowledge so that people like me can understand. If that's her meaning... than I completely agree.

If Supreme Court decisions were simply things that came down that only affected a few people, and were only like trivia for these strange people called "lawyers", than you could be as obtuse as you want, and obfuscate the meaning of things as much as you wanted. But the fact is that they don't just affect a select few people. They become law that everyone must follow... not just lawyers. I'm expected to follow that law... so I damn well had better be able understand it. After all, I can't afford to consult a lawyer every time I want do something... though it seems like it's getting to that point.

And when there is a law that I'm expected to follow... I damn well think that I ought to have say in how it is crafted. That is why I vote. That is why I keep track of the news, and write my legislators. That is the democratic process. But when I see judges using international law in their decisions, I see them short circuiting that process. They bypass the person I voted for... the person who is supposed to safe guard my interests in favor of the opinions of a legislature that I had no say in electing.

So when Justice Scalia simply says... the Constitution evolves... and I'm going to see what other countries are doing instead of looking to our states to do it... I damn well want an explanation. State legislatures aren't just a way to do it. They are the way to do it. Read Article 5... I don't see citations to international law anywhere in there.