Strengthening Constitutional Self-Government

No Left Turns

Judges, International Law, and the Next Administration

Peter often brags (deservedly) about the notable accomplishments of Ashbrook Scholars. Here is another post that he can add to his bragging list. Deborah O’Malley, an alumni of the Ashbrook Scholars program has joined the ranks of the legal center at Heritage. She just published a timely op-ed discussing the Supreme Court’s unseemly attraction to international law, and warning that this trend could get worse if advocates of "transnational" jurisprudence like Obama advisor and Yale Dean Harold Koh were to join the court.

The defense offered by Justice Breyer for his invocation of international law is fairly weak, and O’Malley calls him on it:

Justice Stephen Breyer insisted that the "enormous value...of trying to learn from the similar experience of others" justifies giving weight to foreign laws. It’s particularly valuable, he says, when addressing human rights issues. Why? Because "you’re asking a human question, and the Americans are human -- and so is everybody else."

It is rare that one sees the "I’m a Pepper; he’s a Pepper; wouldn’t you like to be a Pepper, too?" theory of constitutional adjudication. Yet this approach appeals not only to Justice Breyer, but also to Justice Ruth Bader Ginsburg, who admonishes that we "can join hands with others" by paying homage to international law.

Humor aside, the trend to rely upon international law is a major issue for the Court, and it should be a major consideration for the candidates to address. Definitely worth a read. 

Discussions - 11 Comments

Well, according to a least one on this site, the Constitution is a quant document with not much relevance in today's world.

Such thinking begets adherence to international law, whatever that is.

Also, such thinking, for some odd reason, also begets the inclusion of the US Constition for the world, except, naturally/ironically, for US citizens.

Defense of a common humanity is not a bizarre trend. Conservative unilateralism and contempt for international law, however, is.

"Defense of a common humanity." See this is EXACTLY the line that President HUSSEIN Obama will use to give up our American law and make us submit to Arab sharia law. That's why he needs to be stopped.

Hal's right. "Justice" can only be found through a strict adherence to the Constitution. Nothing else. Clearly.

And, justice can be easily had with international law?

Matt, I know you are naive, so ...?

I menat not naive

Of course not, Dale. We Americans know justice best. Clearly. Why create a collective approach. We'll just get stuck with the voices of all those peoples unenlightened by our demi-god Founders, yes? Clearly.

You all seem to be missing the point. It's not a question of whether we as Americans should be aware of our "common humanity." After all, the Declaration of Independence says we ought to maintain "a decent respect for the opinions of mankind." The question is what is appropriate conduct for judges, whose job is merely to interpret the laws of the United States. Those laws are supposed to be made by legislators elected by the American people. And I don't think anyone would argue that it's illegitimate for legislators to consider international law or global trends in casting their votes.

I agree with Dr. Moser, with one caveat. Conservatives who espouse "natural rights" jurists seem vulnerable to international law too. Only when a jurist sticks to the text of the constitution and legislature can he avoid international law in a principled way. The Declaration, and many other documents used by conservative judges to interpret the constitution in light of their view of natural rights, opens the door to judges using international law.

For example: In Bowers v. Hardwick the court didn't find a right to sodomy, in part relying on the history of western civilization...where's that in the constitution? In Lawrence, where the court found a right to sodomy, they claimed to use international law only so much as to counter the claims of heterosexual western civilization and ancient practices. The natural rights conservatives opened the door for the international law liberals.

For judges, the country didn't begin until 1789.

If all there was to being a judge was to interpret laws of the U.S., to the exclusion of anything remotely 'international', then machines could do it. I cannot believe the last line in the Moser post. It is ambiguous. Does he mean that 'no one would argue that it is illegitimate' or that 'no one would argue that it is legitimate'? It is a good thing he can respond with another post to clarify his intent. Founding documents cannot do so, which ironically displays why machines and so-called a-historical perspectives are a fraud and human beings, even those (gasp!) knowledgeable of global trends, must interpret laws.

Interpreting US laws is one thing, but ignoring them in favor of another country's laws or the 'laws' of the UN is something else entirely.

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