Posted on 02/17/2004 8:34:52 AM PST by Valin
What is going on here? Justice Sandra Day O'Connor in a recent speech said that decisions of other countries' courts could be persuasive authority in American courts. At a time when 30 percent of the U.S. gross national product is internationally derived, she said, "no institution of government can afford to ignore the rest of the world."
She is by no means alone on the Supreme Court. Six of that Court's nine members have either written or joined in opinions citing foreign authorities. The most astonishing, or risible, so far was Justice Stephen Breyer's opinion arguing that he found "useful" in interpreting our Constitution decisions by the Privy Council of Jamaica, and the Supreme Courts of India and Zimbabwe. Jamaica and India are far-fetched enough. But Zimbabwe--the country devastated by the blood-stained dictator Robert Mugabe! We might as well learn our constitutional law from Saddam Hussein's Iraq or Fidel Castro's Cuba.
Since the mid 1950s we have been in a third great period of constitution-making. Unlike the first two (1787 to 1791 and 1865 to 1870), this one is the work of judges, which achieves efficiency by cutting out the middlemen, the American people acting through their state conventions and legislatures. The efficiency gain is clear, but those hung up on technicalities complain of a lack of legitimacy. Justice Scalia commented on one of the Supreme Court's more imaginative improvements on the Founders' work: "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize."
Yet even Scalia at his gloomiest probably did not foresee that the new country might be designed bit by bit from European, Asian, and African models. In Lawrence v. Texas, the decision creating a constitutional right to homosexual sodomy, Justice Kennedy cited a decision of the European Court of Human Rights. In a concurring opinion in Grutter v. Bollinger, a case upholding a law school's minority preferences in admissions, Justice Ginsburg, joined by Justice Breyer, rejoiced that the decision was in line with the International Convention on the Elimination of All Forms of Racial Discrimination. In Thompson v. Oklahoma, Justice John Paul Stevens, writing for four members of a divided Court, cited the approval "by other nations that share our Anglo-American heritage, and by the leading members of the Western European Community," as well as foreign legislation and three human-rights treaties, two of which had not been ratified by the United States.
Down from Olympus
We should not have been taken unaware by this absurd turn in our jurisprudence. Most members of the Court belong to that brand of intellectuals that John O'Sullivan has termed "Olympians." Kenneth Minogue added that "Olympianism is the project of an intellectual elite that believes that it enjoys superior enlightenment and that its business is to spread this benefit to those living on the lower slopes of human achievement." Hence the steady stream of Court decisions striking down various restrictions on abortion, on the telecasting of sex acts, and on computer-simulated child pornography; and outlawing any aspect of religion even remotely bearing on government. The Olympians' aspirations are universal. As Minogue put it: "Olympianism [is] a vision of human betterment to be achieved on a global scale by forging the peoples of the world into a single community based on the universal enjoyment of appropriate human rights. . . . Olympians instruct mortals, they do not obey them."
It is hardly surprising, then, that Linda Greenhouse would write in the New York Times with complacent approval that "justices have begun to see themselves as participants in a worldwide constitutional conversation." It might be more accurate to say that they see themselves as participants in a worldwide constitutional convention. Constitutions, ours and others', are being remade without reference to the principles actually embodied in them. It seems highly unlikely, to say the least, that the meaning of our Constitution, created by Americans primarily in the 18th and 19th centuries, should turn out to be the cultural fads of Frenchmen and Germans today.
The justices now regard themselves as statesmen. Justice O'Connor, referring to a 2002 decision holding the execution of a mentally retarded man unconstitutional, said that the Court took note of the world community's overwhelming disapproval of the practice. She said that the "impressions we create in this world are important." She went on to say that the Court found influential an amicus brief filed by American diplomats discussing the difficulties they confront in their foreign missions because of U.S. death-penalty practices. Of course, the European elites are enraged by any death penalty, which means the diplomats will continue to be vexed so long as the federal or any state government has capital punishment. Logically applied, as one must hope it will not be, this should mean that concern for the good opinion of Europeans and the comfort of our diplomats would persuade the Court to declare the death penalty unconstitutional altogether, despite the fact that the Constitution several times explicitly recognizes the availability of that punishment.
A "worldwide constitutional conversation" means that the rest of the world should learn from us as well as we from them. But they may be learning the wrong lessons: I have heard alarming reports that European judges are earnestly inquiring how Chief Justice John Marshall managed to centralize power in the federal government in order to learn how they could better diminish the remaining independence of the European Union's more fractious member states.
Our federal courts of appeals have now taken up the task of instructing the peoples of the world in "appropriate human rights." The Alien Tort Claims Act, adopted in 1789, permits aliens to sue in federal courts for torts committed in violation of the law of nations. The law of nations, back then, referred to relations between sovereign states, including the safety of ambassadors, and to piracy. Human rights were not a part of that law. For the most part, this area of law lay dormant for almost two centuries--until it was suddenly resurrected and expanded by a court of appeals that ruled that a suit for damages could be brought here in the U.S. for the murder by a Paraguayan of a Paraguayan in Paraguay. The court, as Prof. Jeremy Rabkin put it, "cheered on by a host of international law scholars, insisted . . . that 'customary international law' has greatly expanded and now incorporates an international law of human rights." There are now many such suits, including one in which it is alleged to be a violation of the law of nations when an American company refuses to bargain collectively with its workers in a foreign country.
The courts that countenance such lawsuits are making up the law of nations out of their own notions of appropriate human rights. They are undertaking to instruct the world on how the citizens of all nations must behave. This modern abuse of the Alien Tort Claims Act is judicial imperialism--indeed moral presumption--at its highest pitch. The Supreme Court has yet to deal with this misuse of the statute, and it's not clear what it will do about it; but in the meantime our lower-court Olympians are preaching their morality to the world.
The Arrogance of Power
What these courts are doing closely resembles Belgium's concept of "universal jurisdiction," under which its courts were asserting the authority to try criminally people involved in actions that have no connection to Belgium. A Belgian court tried and convicted Rwandan nuns for their actions during a massacre in Rwanda. The Belgian Supreme Court ruled in 2002 that Israeli prime minister Ariel Sharon may be tried after he leaves office for alleged war crimes in Lebanon 20 years earlier when he was head of Israel's army. Since massacres by Arabs are not prosecuted, it is difficult to disagree with Israelis who see anti-Semitism as an explanation for the difference. That is to be expected.
International law in its higher reaches is usually heavily biased and political. As the Muslim populations of continental European nations rapidly increase, it is also to be expected that biased rulings will run heavily against Israel and the U.S. On the evidence of their behavior in the Pinochet affair, the United Kingdom and Spain may be adopting a version of universal jurisdiction.
International-law specialists David Rivkin and Lee Casey have remarked that the modern notion of universal jurisdiction would "permit the courts of any state to prosecute and punish the leadership of any other state for violations of international humanitarian norms." But "proponents should keep in mind that any independent state, not just 'right thinking' Western ones, would be entitled to prosecute." Yugoslavian courts convicted the NATO leaders for the 1999 bombing of Serbia, and Bill Clinton (tried in absentia, of course) was sentenced to 20 years' imprisonment.
To say, as Justice O'Connor did, that "the differences between our nations are fewer and less important than our similarities" is a serious mistake. We have few ideas about law and human rights in common with radical Islam, Russia, China, most of Africa, Cuba, and much of South America. The "impressions we create in [the] world" by abandoning our Constitution may be favorable in Europe, but that is all. Nor is there any good reason to cultivate the good will of European elites by importing their vapid notions of advanced social policy to replace the principles of our Constitution.
We have experimented with bringing into our universities neo-Marxist, feminist, and postmodernist philosophies, primarily out of Germany and France. The result has been wreckage in the study of the humanities. Why anyone would want to replicate that experience in law, as some judges, professors, and interest groups do, is a subject for the study of intellectual pathologies. Postmodernism has been defined as an uneasy alliance between nihilism and the politics of the Left. Radical individualism, which denies the possibility of objective moral standards, is a version of nihilism and the Court's social doctrine, now supplemented by foreign--primarily European--judicial decisions, has steadily moved our culture to the left.
Something larger than the justices' vulnerability to foreign law is in play. Internationalism is all the rage among Olympians. A heavy admixture of internationalism is urged as essential in our foreign policy and our employment of armed force. That may be seen in the proliferation of international tribunals such as the European Court of Human Rights and--more recently, and more ominously--the International Criminal Court, which intends to judge the behavior of citizens of all nations, even those that have not ratified the treaty establishing the court. Many Americans and most Europeans appear to think that morality requires submission of U.S. military responses to threats abroad to the United Nations and its Security Council. The result of these extreme forms of internationalism can only be a serious reduction of our sovereignty and our freedom. In large part, that is precisely what is intended by internationalism's enthusiasts, foreign and domestic. Consciously intended or not, it will also be the tendency of the internationalization of American law by American judges. That ought to be resisted strenuously, in the law as elsewhere.
Robert H. Bork is a senior fellow at AEI.
Bigoted idiot. The Supremacy clause does not include laws of other countries. What a maroon!
Worth repeating.
If O'Connor cited international law as authority in a decision she should be impeached.
It is terrible that they aren't treating the plain text of the Constitution as "persuasive authority." They certainly ignored "Congress shall make no law ... abridging the freedom of speech or of the press" in Amendment 1 by upholding the advertising restrictions in the CFR bill.
This needs to be repealed ASAP.
John / Billybob
True at one time, but the 'offenses against the laws of nations' clause was added to the Supremacy Clause by the treaties clause within the Supremacy Clause and is the mechanism by which congress has been making irregular laws that are not in pursuance to the Constitition and the Bill of Rights.
The 'back door' to the Constitution, as Larry Becraft would say, who presents an excellent history of how this usurping mechanism has progressed (since the Migratory Bird Act in 1917) and allowed the feral gummint to grab municipal power whenever and wherever it can through treaty provisions.
Meant to ping y'all.
Kind of takes the heat off the executive and legislative branches for a while, doesn't it?
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