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Carol Platt Liebau - Columnist
Platt Liebau is editorial director and a senior member of tOR and CRO editorial
boards. She is an attorney, political analyst and commentator
based in San Marino, CA, and has appeared on the Fox News
Channel, MSNBC, CNN, Orange County News Channel, Cox Cable
and a variety of radio programs throughout the United States.
A graduate of Princeton University and Harvard Law School,
Carol Platt Liebau also served as the first female managing
editor of the Harvard Law Review. Her web log can be found
[go to Liebau index]
More Things Change...
Once Again, the “Elites” Look Abroad
Platt Liebau] 3/7/05
help but wonder if Justice Anthony Kennedy has seen The
In the film, Howard Hughes’ antagonist,
Senator Owen Brewster, suggests that the American people will
benefit from having only a single airline fly internationally
between the United States and Europe. As support for his proposition,
he cites the strength of Air France.
Today, of course, we all know better. An airline
monopoly leads only to fewer routes, higher prices, and poorer
back in Hughes’ time, the elites really did look to heavy
government intervention in foreign economies with a sense that
such involvement might well be the wave of the future.
The more things change, the more they stay the
same. Americans have pretty well decided that more government
control of the
economy is decidedly not better. But even so, the elites simply
can’t give up the notion of looking abroad for moral, if
not economic, guidance.
And that leads us back to Anthony Kennedy, the
author of the Supreme Court opinion deeming that execution
of any criminal
under the age of 18 is unconstitutional. To justify his position,
Justice Kennedy invoked ''the overwhelming weight of international
opinion against the juvenile death penalty." (In so doing,
of course, he ignored the 18 states who do allow such executions
under certain circumstances.)
The entire exercise was illegitimate. The role
of the Supreme Court isn’t to identify “trends” or guess at
the “national consensus” (which is properly expressed
through the people’s elected representatives, not the courts).
It most certainly isn’t to rely on “international
opinion.” The Supreme Court, quite simply, is supposed
to interpret the Constitution – the American Constitution – as
it is, not as they wish it were. The Court’s proper function
is nothing more, nothing less.
It’s certainly a safe bet that Justice Kennedy’s
invocation of “world opinion” is selective, at best – particularly
given that much of the world still tolerates slavery, the mistreatment
of women, a level of governmental corruption unimaginable to
Americans and, increasingly, a significant level of anti-Semitism.
But even restricting the Supreme Court’s jurisprudential
reliance to the legal precedents of Europe would yield some strange,
and distressing, outcomes. After all, in Britain, there is no
Establishment Clause (prohibiting any establishment of a national
religion) as found in our own First Amendment – the Queen
is the head of the Church of England. Our Constitution protects
individual rights; the European Union Constitution does not.
The French Constitution doesn’t mention a free speech right
at all. Under the German Constitution, civil rights are guaranteed
only to German nationals. And a “duty to work” is
grounded in Article 4 of the Italian Constitution.
Just as each European country’s Constitution is intended
to reflect its own unique history and national character, so
the American Constitution is uniquely American. The views and
laws of other countries may certainly be taken into account by
America’s legislators, but they are not at all relevant
to the interpretation of our Constitution by judges.
Indeed, when the Founding Fathers ratified the
American Constitution in 1789, they could never have foreseen
a day when it would be
interpreted in accordance with the opinions of foreign countries.
At that time, France was just embarking on its own, infinitely
bloodier Revolution; England was enmeshed in a Regency Crisis.
Above all, in seeking independence and drafting the Constitution,
our Founding Fathers were attempting to establish a system of
government that was independent of and superior to European forms – not
reliant upon them.
How sad they would be to realize that more than
a century later, Anthony Kennedy would spurn that proud, brave
approach. The first
American elites realized that America’s strength was in
its willingness to be unique. How utterly disappointing that
so many of the “leaders” who have followed them – whether
in Howard Hughes’ day or our own – have an entirely
different perspective. tOR
Carol Platt Liebau is a political analyst, commentator and
theOneRepublic / CaliforniaRepublic.org editorial
director based in San Marino, CA. Ms. Liebau also served
as the first female managing editor of the Harvard Law Review.
Her web log can be found at CarolLiebau.blogspot.com