Forgive me if I’m talking out my ass here, but as I read it, the bill isn’t talking about imposition of a foreign law; it says that foreign laws *cannot even be considered *when interpreting the Constitution.
BIG WTF, here. What is it about these foreign laws that makes them so dangerous and scary to even consider?
The US Constitution makes no reference to God, because it was written by a bunch of godless commies. At least that’s what Rush says.
I thought I had a deja vu feeling there, thanks for the link Reeder. And Frostillicus, your remark got a snort out of me 
Assume that a US federal court must decide whether wearing purple and green striped shoelaces is okay on Sundays. Assume that US law says that shoelaces may be of any color, except that purple shoelaces may not be worn on Sundays. The judge looks at the law, written by the legislature, and says, “this law is not clear, because it does not say whether any purple is permissible, or if purple is always forbidden.”
Typically, what the judge does then is a number of things. First, she’ll look at legislative history, to see if, when this law was being considered, the legislature meant that purple on shoelaces was not okay, or whether the law means that solid purple shoelaces are not okay. Assume that the legislative history is silent on this point.
The judge then reasons by analogy to other cases. This is where looking at international law can be helpful: how have other judges, in other systems, analogized? What has their reasoning process been? The judge is emphatically not “applying foreign law,” but is instead trying to find the most rational approach. There really is no difference between saying, “Texas has a law similar to this federal law, passed for the same purposes in the same statutory scheme, so its decisions are persuasive,” and saying, “Australia has a law similar to this federal law, passed for the same purposes in the same statutory scheme, so its decisions are persuasive.”
Lawyers distinguish between precedent by referring to it as either persuasive or binding. If a precedent is binding, a court must follow it. (Basically, any decision by a higher court in a direct line of authority is binding – so the Texas Supreme Court binds all lower Texas courts, but does not bind Louisiana’s courts; the SCOTUS, on points of Constitutional law, binds all courts in the country, federal and state, on those points of constitutional law.) Persuasive precedent, by contrast, is simply that: a previous decision that could persuade the court, but the court need not rely on it. What this senate bill is apparently trying to do, is to turn persuasive non-domestic precedent into inapposite precedent.
This brouhaha about the courts looking at what other jurisdictions do is a smokescreen. As far as I know, no court has ever held foreign law or precedent to be binding on an American court, so talking as if that has happened is simply shifting the argument away from where it really ought to be. Instead, the discussion ought to be about reality, which is simply this: American courts have looked at, and likely will continue to look at, decisions under international law to the extent that they are helpful to us in finding rational solutions to problems not foreseen (or problems created) by the legislature. I find this, as I said, to be a tempest in a teapot, because why on earth would you tell a judge, “you must not look over here at England’s law, or Canada’s law, even though they are a similar country with a similar legal system and an identical law and have already figured out how to address this issue which no court in America has ever addressed before. Instead, you must start from first principles and you may not look to see how anyone else has analyzed this problem.” To me, it’s the equivalent of telling a mathematician trying to find a proof that he can only look in books written by Americans. Makes no sense.
I apologize if I gave you the impression that you needed to be lawyer to have an opinion on this topic. That wasn’t my intention; I asked because I was curious about your background and your familiarity with how judges make decision. I’m sorry if I gave you the impression that your opinions weren’t wanted simply because they come from outside the system. Sometimes, opinions from outside the system can be very helpful to those inside because they serve to illuminate what we ought to be doing. 
Judges apply foreign law to American cases all the time; it’s called the Common Law, and it originated in Britain before the Revolution.
In all seriousness, we discussed this before, and the nature of precedent and its applicability is something that most people miss. When a superior court in the same jurisdiction has ruled on an issue that is essentially on all fours with the issue raised in the instant case under consideration, that superior court’s ruling is binding precedent. In other words, if the South Dakota Supreme Court decides that grain storage contracts are to be construed thus and so, then the Winnebago County Court is obliged to follow its decisions when a case involving a grain storage contract comes before it. If the Fifth Circuit Court has made a ruling on some element of Federal law, then Federal courts in the states in the Fifth Circuit are required to abide by that ruling, until and unless the Supreme Court says otherwise.
Other precedent, though, may be raised by either side in a case, and a wise judge will review it and take it into consideration in making his decision, but is in no way compelled to rule in accordance with it. An estate case with relatively unique characteristics in New York may well have as the sole precedent a case decided in 1925 in Nebraska that had similar unusual circumstances. The New York court is not bound to abide by the Nebraska decision, but the attorney whose side it benefits and the judge would be fools not to bring it up and review it respectively.
Likewise, French, Australian, or Uttar Pradesh courts may have had occasion to consider an issue, and what they decided, applying Frence, Australian, and Indian law, may help shape the decision of a U.S. judge – but should never be thought to bind him. He will certainly consider the differences in the legal systems.
The alleged lawyers who serve in Congress often seem to have no grasp of the fundamentals of American law. You and I, laymen, may differ on judicial philosophy, political positioning, etc., but I think we are in agreement that we have a relatively sound judicial system, and that Congresscritters, on both sides of the aisle, are often inclined to play for sound bites rather than serious consideration of issues. This whole bill strikes me as a case of precisely that.
This has been done to death. No, the Constitution does not use those words. Those are Thomas Jefferson’s words to describe the freedom of religion clause in the very first point of the Bill of Rights. It makes a nice shorthand for describing exactly what it was intended to do: separate church and state. Only someone who was an extreme literalist, totally ignorant of the meaning and intent of the Bill of Rights and conspicuously avoiding Supreme Court decisions on the topic could try to deny that the separation of church and state is a firm part of the way this country operates.
Mr Moto: Through rapid reading, I missed your acknowledgment of Common Law, and therefore my comment probably sounded sarcastic to you; my apologies. I would say that anything in, say, the Code of Justinian, the Code Napoleon, or any other codification of law that gives a judge guidance in how other human beings have addressed the question under consideration is acceptable “guiding precedent” (I forget the precise term for non-binding precedent), so long as it is merely taken as informative and not definite guidance. (Note that many who object to “using foreign law as precedent” in liberal/rights cases are quite willing to examine the allegedly divinely inspired laws of the Israelite commonwealth and kingdoms for their precedent-setting ability.)
I believe that some of Mr. Justice Scalia’s opinions draw on European law in what I consider the proper usage – as informative guidance to be applied after noting the distinction between European and American law.
Spingears: You are quite correct. Now would you address the question of whether the Jeffersonian phrase accurately defines the two First Amendment religion guarantees? The term Substantive Due Process appears nowhere in the Constitution, but it accurately defines the application of due process guarantees to not merely the procedure applied but the substantive results of a decision.
true. I also objected to this conclusion by springears
I support seperation of chuch and state but I disagree with the strict sepratists who seem to interpert this as nothing representing any diety involved in anything with the government. As we grow more culturaly diverse it becomes a little more complicated and we must examine and define the boundaries.
I also strongly disagree with those who think Christianity has some sort of historical dibbs on this country. It’s completely bogus just like the term “Chirstian Principles” There’s no such thing.
But…this is not the thread subject. Not meaning to hijack.
The question seems to be around where the line is drawn in federal intervention in local matters yes?
Doesn’t the federal government have the right and even obligation to intervene when a citizens rights are being violated in an agregious manner?
Maybe thats the kink. A state can’t pass a law that limits rights gaurenteed by the constitution, right?