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The Supreme Law of the Land
by Steven D. Laib, J.D., M.S.
13 November 2003Steve Laib

By taking clues from foreign law and from United Nations documents the Supreme Court has potentially subverted the entire American legal system.

Some years ago I became part of an audience watching a minor feud over the proper way to display the American Flag and what, if any meaning a gold border on the flag has.  There are certain individuals who maintain that if the flag has a gold border in a courtroom, it signifies that the court is applying either martial law or admiralty law, depending on who you listen to, rather than the common law of the states or under the constitution.  This is of extreme importance to them because they believe that it would prevent you from having a fair hearing if and when you were on trial in such a courtroom. This modification of the flag was, apparently authorized by an executive order of President Eisenhower in 1959 for use in specific circumstances.  Having practiced as a lawyer and as a non-attorney professional for over 20 years, I generally fail to see what the fuss is about.  I have never seen martial law applied in the courts when I’ve been present.  Still some people are very concerned. 

It is possible that right now these people may be concerned about the wrong thing.  For the question of exactly what law we are governed by has now been raised by none other than the Supreme Court of the United States.  Two recent decisions, Lawrence v. Texas and Grutter v. Bollinger, contained opinions asserting the belief that in making decisions on matters of American Constitutional Law, the high court should rely not on precedent, not on the intent of the framers of the Constitution, not on the laws of the 50 states or the Constitution itself.  Instead the authors contend that we should look to the European Council for Human Rights, the United Nations, and in the words of Anthony Kennedy, what “has been accepted as an integral part of human freedom in many other countries.” 

Meanwhile, Justices Bryer and Ginsburg in the Grutter decision went so far as to cite to the UN Convention on the Elimination of All Forms of Discrimination against Women; a document never ratified by the United States Senate, and therefore having no force and effect here. 

Aside from the fact that the common law system is supposed to avoid reliance on foreign sources unless there is nothing available at home, and that the court has seriously stepped over its mandated boundaries, there are other serious considerations to be addressed here; for example, the sovereignty of American Government. 

Consider that in 1776 this nation was created so that we the people of the United States could govern ourselves by our own laws and according to our own principles.  While Justice Ginsburg may consider this to be an “island” or “Lone Ranger” mentality, isn’t that what the founders of this nation set out to do?  It sounds strangely similar to what Justice Salmon Chase said in Texas v. White when he castigated the Confederate States for leaving the Union, but ignored the fact that he was denying them the same right exercised in 1776 and which he apparently approved of. 

Next we must consider the role of the courts.  As California Justice Janice Brown has suggested, the role of the courts is not to impose some outside idea of social justice on the public.  Their job is to interpret the law, and only that.  If the people desire the law to change to reflect changing values, then it is the job of the Legislative Branch to carry that desire through.  The courts, by making decisions on what the law should be, rather than on what it is, are behaving in an unconstitutional fashion.  It is precisely this decision to ignore the law and impose her personal will on the state of California that led to the expulsion of Justice Rose Bird from the California Supreme Court some years ago. 

Third, we cannot question that there is no reason why the people of America should be required to follow the laws of another nation, regardless of how moral and reasonable they may appear to be.  One hundred years ago communist doctrine was accepted by many as the wave of the future, and as the ultimate moral and ethical system.  Today it is seen by most people in its true colors; as another failed attempt at social engineering without the moral or ethical values that it had professed to exhibit.  Many nations followed this path blindly expecting to get the prophesied result and were disappointed instead.  Should we allow our courts to cause us to take on whatever current fad some other members of the international community believe is correct?  Should we become potential lemmings to please the egos of some highly placed people?  
Finally, we must ask ourselves what is the Supreme Law of the Land.  In Marbury v. Madison, Chief Justice John Marshall declared that it is our Constitution, and that any law that conflicts with the Constitution must be void.  By taking clues from foreign law and from United Nations documents the Court has potentially subverted the entire American legal system.  If we cannot rely on our Constitution as the final arbiter of what is and is not legal, then we cannot count on our system at all.  In subverting the legal system, our entire political structure is placed potentially at risk.  If the courts do not need to follow the law, they why should anyone else? 

One other question:  What did these justices learn in law school and in all their years of purportedly distinguished service?  Maybe it is time they went back to school and took the time to read Marbury over again.  That is, assuming that they did the first time around. 

Steven Laib is a practicing attorney

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