Justice Ruth Bader Ginsburg gave a speech defending the Supreme Court's use of foreign law in interpreting the U.S. Constitution.

* Justice Ruth Bader Ginsburg gave a speech defending the Supreme Court's use of foreign law in interpreting the U.S. Constitution. "The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially fi-ozen in time as of the date of its ratification," she said. And she's right: Both of these notions are caricatures of conservative propositions that are rooted in a concern for self-government. The discretion of judges to amend the Constitution through creative interpretation has to be limited so that Americans can remain governed by the Constitution they ratified. So judges interpreting a constitutional provision ought to be looking at what Americans thought they were doing when they ratified it--not what Ruth Bader Ginsburg or Germany thinks about social issues in 2005. Ginsburg notes, but does not answer, the objection that justices will invoke foreign law only when it suits their purposes. She delivers non sequiturs, arguing that the Founders' "decent respect for the opinions of mankind" proves her case. She even associates caution about foreign law with the Dred Scott decision--a polemical move that ought to have been beneath her. But perhaps it is necessary for a judge to sidestep difficult questions when trying to rationalize judicial rule.