Opinion/.Mark Steyn: The rap against America boils down to this: it is out of step with the rest of "the West" - with Europe, Canada, New Zealand; it is the odd man out - politically, fiscally, culturally, militarily, religiously. But don't worry, that gap may soon be closing, at least if Sandra Day O'Connor is to be believed.
Swinging Sandra is the most reliably unreliable vote on the US Supreme Court, the eternally swinging fifth vote on all the 5-4 decisions setting the course for the great republic, and thus arguably the most important figure in American life.
On a bench otherwise poised between opposing ideological quartets of left and right, she's the one the lawyers pitch their arguments to, which isn't as easy as it sounds, given the lack of discernible legal principles governing her erratic pendulum.
As a rough generalisation, the right generally believes the US constitution means what it says, the left sees it as a "living document", constantly "evolving", full of "penumbras" from which all sorts of new rights "emanate" - on "affirmative action", abortion etc. Fellow Justice Clarence Thomas has a sign on the wall of his office: "Please do not emanate into the penumbra." But over at Sandra's pad it's all penumbra: she inclines not to black or white but to an unendingly murky grey. The trick for counsel is figuring, in this constitutional twilight zone, which particular degree of grey tickles her fancy on any given day.
Even so, it comes as a shock to discover that Sandra's now swinging not between left and right but between the US constitution and Belgian law.
As she recently told an audience in Atlanta: "Over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues."
Doing so "may not only enrich our own country's decisions, I think it may create that all important good impression". And, if any country could do with making a "good impression" with foreigners, it is surely America.
Until recently, US courts declined to consider foreign courts. But, as Justice O'Connor was happy to report, that's all changed: in "the famous or perhaps infamous case" on Texas sodomy she and her colleagues relied on "a series of decisions by European courts".
Wow. That penumbra stretches a lot further than it used to. Speaking as a foreigner myself, I've always found it one of the more charming features of the American scene that "progressives" are obliged to find justification for their radicalism in a piece of old parchment.
In Europe, they can simply say: we need to get with the beat, daddy-o. But in the US the left at least observes the niceties and pretends that the powdered-wig guys had somehow ingeniously anticipated the need for a constitutional right to gay marriage or abortion. Perhaps recognising that this particular penumbra is pretty well tapped out, Justice O'Connor is now saying that there's gold in them thar Scandinavian hills.
No prizes for predicting which way the emanations are going to go once they take the foreigners into account. In considering the pros and cons of sodomy in Texas, the Supreme Court did not rely on the large body of Nigerian sharia precedents and Taliban jurisprudence in this area. No, the only countries the Supremes seem to have taken under consideration are those in (as Justice Breyer put it) "the western tradition" - i.e., white Europeans.
Interesting. In its recent decision on racial quotas in higher education, Sandra and her colleagues ruled that "diversity" is an all-important consideration: blacks, Asians, Pacific Islanders, come on down. But, in their own world, it seems homogeneity is their watchword: no blacks or Asians; instead, they consult white Europeans only. Heartening though it is to know the white man still has his uses to Breyer and O'Connor, this privileged access is, alas, unwarranted.
For one thing, the fact that the US constitution is older than the French, German, Italian, Greek, and Spanish constitutions combined suggests that this member of "the western tradition" is more traditional than others.
For another, can you imagine any judge in France, Denmark or Ireland taking US court decisions into account when deliberating on, say, gun ownership or capital punishment? In this case, the emanations are strictly one way. Given that the wacky new European Constitution has 400 articles enshrining such novel "constitutional" rights as the right to "housing assistance" and the right to have your government take "preventive action to protect the environment", Justice O'Connor's remarks amount to more or less formal confirmation that the universal destination is Scandinavian social democracy, America's just taking a little longer to get there than its more enlightened cousins. Excessive deference to European modishness can be passed off as many things but not as US constitutional law.
Let me come at it this way. I love borders, the more the merrier - town lines, county, state, and, of course, national.
Borders symbolise one of the few remaining constraints on government, and are one of the most dynamic features of American life: You don't like the grade school here in town? Move 10 miles up the road. You don't want to pay Vermont sales tax? Drive over the river and shop in New Hampshire. Socialist socialite and flop California gubernatorial candidate Arianna Huffington likes to huff against "tax loopholes for fat cats", but I'd say the ability to rent a post office box in Bermuda or the Cayman Islands is a "loophole" in one of the original 16th century senses - an aperture to let in light and fresh air.
That there's somewhere else to go to is the ultimate limitation on government. Borders give people choices - and, to put it in a bumper sticker, "I'm Pro-Choice And I Vote With My Feet". When starry-eyed utopians speak of a "world without borders", you can guess what kind of a place the one-world one-party state would be, with tax rates starting at 60 per cent, about where they are in Sweden right now.
That's why Justice O'Connor's indifference to jurisdictional integrity and partiality to foreigners is not just a kinky fetish but something philosophically incompatible with the job she's meant to be doing. If you wanted to construct the precise opposite of the US constitution, it would look an awful lot like international law. The former is a document that limits the state's grip on the people, the latter is designed to ensure they can never wiggle free, no matter where they go.
International law is the new colonialism, the imposition on the world's peoples of the moral certainties of a remote, unaccountable western elite - indeed, one far less tolerant of local customs and culture than the old-school imperialists. The Europeans haven't had much luck imposing their laws on Saudi Arabia and Sudan but, thanks to Justice O'Connor, other backward jurisdictions like Texas and Alabama are about to be whipped into line.