Foreign Protection from the Tyrranny of the Majority

While on the subject of foreign precedent, the ABA has published a letter and issued a news report that sharply criticizes H.Res. 97, the resolution that expresses the sense that “judicial interpretations regarding the meaning of the Constitution … should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution….”

Part of the objection to H.Res. 97 expressed in the letter is that “the founders devised a system whereby the federal judicary was made an independent, coequal branch of government precisely so that it could withstand the ‘tyranny of the majority’ in order to protect the rights of individuals against possible overreaching by the political branches. The federal courts not only have the obligation to faithfully interpret the laws popularly enacted, but also to strike them down if they run afoul of the U.S. Constitution.”

While I’m not particularly impressed with H.Res. 97, does it not strike you as more than a little unusual that the ABA is suggesting that courts might rely on foreign precedents to protect minorities against the tyranny of the majority? Let’s look outside our community to make sure that democratic preferences within our community are not tyrannizing minorities within our community?