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44 Fam. Ct. Rev. 1 (2006)

handle is hein.journals/fmlcr44 and id is 1 raw text is: EDITORIAL NOTES JANUARY 2006 As is traditional, we begin the New Year with a new volume of Family Court Review- its forty-fourth. The first issue in the new volume blends cutting-edge and traditional topics, a combination that I hope readers will find intellectually and professionally invigorating. LEARNING FROM EACH OTHER Before describing what this issue contains, I want to begin with a general observation about the importance of international dialogue and communication about how court sys- tems and the rule of law can best help families and children. At present, a debate rages among jurists in the United States about whether and how much we should consult the laws of other nations in shaping our own. That debate was simulated by the Supreme Court's opinion in Roper v. Simmons,' the case that declared the death penalty for juveniles was unconstitutional cruel and unusual punishment. Justice Anthony B. Kennedy's opinion surveyed the law of other countries, a survey that supported the conclusion but has proved to be controversial in legal circles. In dissent, Justice Antonin Scalia argued that the basic premise of the Court's argument-that American law should conform to the laws of the rest of the world-ought to be rejected out of hand . . . Either America's principles are its own, or they follow the world; one cannot have it both ways.2 Chief Justice designate (at the time of this writing) John Roberts stated during his confirmation hearings that he supports Justice Scalia's view. In Roper, in reply to Justice Scalia, Justice Kennedy wrote: The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.3 Whether and to what degree American judges should consult foreign law in formulating their views is thus a controversial and complex topic that cannot be treated with the full FAMILY COURT REVIEW, Vol. 44 No. 1, January 2006 1-4 c 2006 Association of Family and Conciliation Courts

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