Constitutional Myth #10: International Law is a Threat to the Constitution

The Founders wrote "the law of nations" into the document; the far right wants to read it out

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Not long ago, Rep. Sandy Adams (R-FL) introduced a bill to forbid the Supreme Court from ever citing or using any precedent from international law. In the conservative Washington Times, Adams explained:

The Constitution laid the foundation for our nation's judicial system, and allowing foreign law to supersede it in any capacity leads to its erosion. Not only is using international precedent a transparent disregard for the Constitution, but it could be used to advance a judge's personal political agenda over the best interests of the nation.

Adams said she was outraged that in recent years, the Court has discussed international law and human rights norms in three decisions: Atkins v. Virginia, which held that executing the mentally retarded violates the Constitution; Roper v. Simmons, which held that executing adults for crimes they committed as children violates the Constitution; and (most importantly) Lawrence v. Texas, which held that jailing competent adults for consensual private sex with members of the same sex violates the Constitution.

Many conservatives loathe any limitation on the death penalty; they also loathe recognition of the basic human rights of gay men and lesbians. If courts are according the right to life to the retarded or to juveniles -- if they are according any measure of equality to gay people -- foreigners must be to blame. Judges must be forced to stop their ears to their strange, seductive foreignness.

In November 2010, the voters of Oklahoma amended their state constitution to forbid their judges from ever using international, foreign, or Muslim Sharia law in their decisions. We can all breathe a sigh of relief that Oklahoma's all-powerful Muslim bloc (less than one-half of one percent of the state's population in recent surveys) can't use its unstoppable political muscle to oppress the 94 percent of the population that is Christian. But the sponsors of the initiative silently worked in a provision overturning Article VI § 2 of the United States Constitution. Oklahoma judges can't cite treaties in their decisions any more -- even though the U.S. Constitution makes them "the supreme law of the land... anything in the constitution or laws of any state to the contrary notwithstanding."

Senators at the confirmation hearings for Justice Sonia Sotomayor asked her about her views on using foreign and international law. Her measured answer was instructive:

American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given, and my speech explained that, as you noted, explicitly. There is no debate on that question. There's no issue about that question.

The question is a different one because there are situations in which American law tells you to look at international or foreign law... [T]here are some situations in which courts are commanded by American law to look at what others are doing. So, for example, if the U.S. is a party to a treaty, and there's a question of what the treaty means, then courts routinely look at how other courts of parties who are signatories are interpreting that. There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that's going to be done in that other country, then American law would say you may have to look at that foreign law to determine the contract issue.

Sotomayor's answer took note of one fact the far-right does not understand: international law is part of the Constitution. The framers knew a great deal of international law. Article I § 8 cites among the powers of Congress "to define and punish.. offenses against the law of nations," and "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." Article II empowers the President, with the advice and consent of the Senate, to "make treaties." Article III extends the judicial power of federal courts "to all cases affecting ambassadors, other public ministers and consuls [and] to all cases of admiralty and maritime jurisdiction;" and Article VI § 2, as noted above, says "treaties made or which shall be made under the authority of the United States" will form part of "the supreme law of the land... any thing in the constitution or laws of any State to the contrary notwithstanding."

All of these concepts -- offenses against the law of nations, declarations of war, authorized privateering on the high seas, and most particularly treaties made by the United States -- are at or near the core of what is called "international law." Their presence in the Constitution isn't an accident.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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