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

Introducing Madison's "Virginia plan" that become the basis for the constitution, Virginia Governor Edmund Randolph explained that a new constitution was needed because states were routinely violating the law of nations, which put peace in jeopardy. Oliver Ellsworth, speaking in support of a plan to give judges a share of the power to veto laws, noted that in domestic legislation "the law of nations also will frequently come into question. Of this the judges alone will have competent information." James Wilson opposed giving Congress power to "define" offenses against "the law of nations," on the ground that U.S. law could not change international law: "To pretend to define the law of nations which depended on the authority of all the civilized nations of the world, would have a look of arrogance, that would make us ridiculous." In Federalist No. 3, John Jay warned that the U.S. might drift into war with Portugal, Spain, or Britain. "It is of high importance to the peace of America that she observe the laws of nations towards all these powers..."

In America's first major foreign-policy crisis, over neutrality in the war between France and Britain, President Washington warned that "whatsoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations," by fighting for either of the belligerents or selling them prohibited items, "will not receive the protection of the United States, against such punishment or forfeiture."

The examples could be multiplied almost indefinitely. The fashionable revulsion against international law is of fairly recent vintage. It has nothing to do with "original intent," and it is deeply wrong and dangerous.

As Sotomayor noted, courts not only may apply treaties and foreign legal concepts in proper cases, they must. And that may also mean paying attention to how courts in other treaty nations read them. Even if members of Congress think that may lead to real real bad (read "liberal") decisions, the Constitution has made the choice. That goes, by the way, for the many international human-rights treaties to which the United States is a party -- they too are a part of "the supreme law of the land."

The far-right suggests that the U.S. Constitution stands in some way apart from international law, immune from its norms obligations. The notion is nonsensical. The very purpose of the Constitution was to constitute a country, a nation that could carry out its obligations and enforce its rights under international law. Delegates to Philadelphia knew that trying to get along without following the rules of the international game would quickly lead the United States into economic conflict, and eventually war.

The United States can't ignore other countries today any more than we could in 1787 -- less so, in fact, because as an economic and military power we depend on the cooperation of other countries in matters of trade, diplomatic relations, war and peace, and human rights. Many of those screaming loudest about the dangers of international law represent agricultural districts, where farmers depend for their livelihood on the validity of trade treaties and the ability to collect international debts. Many other screamers buy their Chinese-made goods at Wal-Mart -- binding trade treaties make them so delightfully cheap.

Much of the screaming is about imaginary dangers like "Sharia law." We have a First Amendment, which would easily deal with any attempt to govern Christians by Muslim precepts. The real design of campaigns like Oklahoma's is to mobilize hatred against domestic out-groups.

To that extent, the outcry is dangerous. To the extent that it really convinces our courts to close their eyes to what the Constitution requires, it will also, in Wilson's words, "have a look of arrogance, that would make us ridiculous."


Garrett Epps's Full Constitutional Myth Series:


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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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