Taking its journalistic standards to what may well be an all-time high, the Los Angeles Dog Trainer twice describes Congressman Tom Feeney as a “bonehead” for holding the radical view that American courts should interpret American laws according to, um, American authorities. They attack as “silly” H. Res. 568, which they repeatedly mislabel as “HR 568.”
Most of their argument appears to be that since basic American ideals were once borrowed from certain nations, today’s courts should be free to borrow unrelated ideals willy-nilly from other nations. In Lawrence v. Texas, for example, it means the Supreme Court was right to ignore the history of the Reconstruction Amendments, and instead “discover” that when Congress passed the 14th Amendment in 1868, they intended to constitutionalize in advance whatever actions the then-nonexistent European Court of Human Rights might take a century and a half later. That argument is too silly to fisk, so I’ll not bother with it. Instead, I’ll focus on their factual assertions:
Feeney’s HR [sic] 568 would direct federal judges not to cite or rely on “judgments, laws or pronouncements” of any other nation in reaching their decisions. This silly declaration, now before the House Judiciary Committee, would have no force of law even if it passed, and it surely would violate the Constitution’s separation of powers.
Well, duh. If they had bothered to cite H. Res. 568 properly, the “res” would have made that pretty obvious. House resolutions never have legal force. Their point is to send a message, not to enact a law. If they were trying to pass a law, it would actually be called “H.R.” followed by a number.
Given that even the boneheads at the Times understand that “HR 568” is a nonbinding resolution, it’s a bit puzzling why they would then argue that it violates the separation of powers. Laws can violate the separation of powers, but nonbinding resolutions, lacking legal force, can’t. Could it be that two different boneheads wrote this piece, with each taking a turn writing one sentence after the next, and Bonehead A completely missed Bonehead B’s statement that the resolution was nonbinding?
Even if the ideas underlying H. Res. 568 were enacted as law, the argument that such a law would violate the separation of powers is specious. Despite all the law-making powers we’ve granted our omnipotent courts over the past few decades, Congress still is allowed to pass laws, including laws determining how existing laws should be construed. Expecting the courts to apply such a law while interpreting the constitution would be trickier, but even there, the problem is not with the separation of powers. It is with the fact that a law purporting to clarify what the Constitution means would be the functional equivalent of a constitutional amendment, and therefore would have to be passed in that form.
Federal judges will dismiss the measure for what it is: more sputtering from the right wing over Supreme Court decisions supporting gay rights and affirmative action that note the legal tolerance other nations display on these issues.
Since H. Res. 568 is not a law, that is certainly their prerogative. I certainly expect the ultra-liberal judges who made H. Res. 568 necessary will respond that way. More sensible ones, who actually take the time to listen to dissenting opinions rather than write them off as “sputtering,” will take heed. If they don’t, watch for the Feeney Amendment to the U.S. Constitution in another year or two. When that comes time for a vote, the Dog Trainer staff may be surprised to find out just how large the so-called “right wing” is.
Cross-posted to Oh, That Liberal Media.