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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Brendan McDermid/Reuters

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.

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: