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Multilateralism Comes to the Courts [Long, but Important]
The Public Interest ^ | Winter 2004 | Ken I. Kersch

Posted on 03/27/2004 10:04:25 PM PST by MegaSilver

The rulings of the Supreme Court in last spring’s landmark affirmative-action and gayrights cases were less surprising than the reasoning used by some of the Court’s justices. In resolving constitutional questions, the Court routinely relies on arguments appealing to the constitutional text and government structure, to precedent and prudence. In Grutter v. Bollinger, however, which upheld the use of racial preferences in law school admissions, and in Lawrence v. Texas, which struck down Texas’s prohibition on same-sex sodomy, the Court drew an additional arrow from its quiver. Several justices chose to assess the constitutionality of purely domestic civil-rights and civil liberties policies against the yardstick of foreign practices, foreign court decisions, and broadly worded, incantatory international human-rights agreements. In Grutter, Justice Ruth Bader Ginsburg (joined by Justice Stephen Breyer) cited both the International Convention on the Elimination of All Forms of Racial Discrimination (which the United States has ratified) and the Convention on the Elimination of All Forms of Discrimination Against Women (which it has not) as evidence of an “international understanding of the office of affirmative action.” In Justice Ginsburg’s view, these international conventions provide the grounds for “temporary special measures aimed at accelerating de facto equality.” In Lawrence, Justice Anthony Kennedy prominently recurred to a friend-of-the-Court brief on foreign law and court decisions filed by Mary Robinson, the former U.N. High Commissioner for Human Rights, and to a key decision of the European Court of Human Rights.

These passing references to international agreements and foreign law are easily overlooked, and the Court’s appeal to international standards received scant critical attention. The Court’s multilateral turn, however, is no accident. Behind these seemingly benign references to international agreements and foreign practice stands a vast and ongoing intellectual project, one which the justices themselves occasionally acknowledge. Justice Breyer, the Court’s most intellectually au courant justice, boldly declared last spring on ABC’s “This Week” that “whether [and how] our Constitution ... fits into the governing documents of other nations” is a “challenge for the next generations.” In a speech before the American Society of International Law, Justice Breyer issued a public call to lawyers and law professors to provide the Court with “relevant comparative material” that would otherwise prove difficult for its justices and clerks to find. In an earlier speech before the same audience, Justice Ginsburg announced that “comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights,” and that “conclusions reached by other countries and by the international community should at times constitute persuasive authority.”

Many of the justices actively seek out counsel from other countries on some of America’s most controversial policy issues. Justices Breyer, Ginsburg, and Sandra Day O’Connor have met with French President Jacques Chirac to discuss French perspectives on the death penalty and civil liberties - and they did so shortly after France, as a member of the Council of Europe, had announced that abolishing capital punishment in the United States was one of its priorities. (A similar meeting between President Bush and Justices Clarence Thomas and Antonin Scalia would, to say the least, be considered highly irregular). The Court has similarly met with the justices of India’s Supreme Court to discuss affirmative action—a meeting that, according to the New Republic’s Jeffrey Rosen, apparently played a significant part in shaping Justice O’Connor’s tie-breaking affirmative-action opinion.

The Court has in the past made appeals to international agreements and foreign law and practices in some of its death-penalty, federalism, and “right to die” cases, among others. Strategic appeals to the U.N. Charter, moreover, were occasionally made in lower court civil-rights litigation in the late 1940s and early 1950s at a time when the Supreme Court was hesitant to interpret the equal-protection clause in ways that would invalidate the most insidious forms of racial discrimination. There is, nonetheless, something new in last term’s opinions. While strategic appeals to foreign law as an alternative to less congenial domestic law are an important aspect of the Court’s transnational turn, such appeals have now become part of a larger, more intellectually sophisticated effort to transform American constitutional law and its interpretation. An emerging vanguardist intellectual movement of prominent social scientists and political philosophers believes that traditional notions of sovereignty are outmoded and that global governance is the wave of the future. Meanwhile, law professors and legal activists have devoted considerable efforts to coaching U.S. judges into being key participants in the construction of the new global system. These efforts, needless to say, raise troubling questions about the proper role of the judiciary—if not about the meaning of the judicial oath of office itself.

Building a new world order

Much of the scholarly literature advocating a multilateralist turn in constitutional law is the work of strategically minded law professors whose task is providing lawyers with the arcane arguments most likely to win a case. Legal arguments become winners, however, not simply on logical grounds alone, but when they are felt by judges to be consistent with the broader zeitgeist—with what judges have come to see as either the wave of the future or as simple common sense. Where serious matters are concerned, the zeitgeist is often set by nonlegally trained intellectuals and scholars who to a considerable extent invent the world by which law professors orient themselves. In particular, two distinct schools of thought have exerted a powerful influence on law professors and judges: One is an influential group of social scientists that claims to have identified an emerging “constitutional” world order of international institutions, codes, and practices, while the other consists of philosophers who have begun to argue in favor of internationally valid moral standards that would trump domestic laws and institutions.

The social-scientific wing of the multilateralist movement is comprised of empirically oriented scholars in or affiliated with the field of international relations. These scholars, such as Georgetown University’s G. John Ikenberry and Princeton University’s Anne-Marie Slaughter, have turned their attention to what they take to be the emergence of a new “constitutional” world order in the aftermath of World War II, and (with increasing intensity) the end of the Cold War. Evidence of the new order can be seen in the proliferation of institutions of international governance like the World Trade Organization and the North American Free Trade Agreement, as well as the expansion of the United Nations and other global organizations and policy-making networks. While many such social scientists are simply interested in observation and classification, others are more goal-oriented. They have trained their attention on calibrating the new order to perform its ever-proliferating governing tasks more effectively. In particular, they wish to encourage, in the words of Slaughter, more transnational “court-to-court” dialogue among judges in order to find supposedly uncontroversial and nonpartisan solutions to global policy problems.

These scholars see the emergence of this new global constitutional order as a win-win situation for both the world and the United States. In their view, it promises to provide the former with peace and good order and the latter with the benefits of international cooperation. A prominent work in this vein is Ikenberry’s recent book After Victory, which argues that nation-states that are triumphant in war (as the United States was in 1945 and again in 1989) have three options concerning the stewardship of their power: They can dominate by using it; they can abandon its claims; or, by creating a set of rules and institutions that constrain both their own power and that of others, they can transform themselves and their position into a stable order that peacefully wins the allegiance of other states. Ikenberry refers to this set of constraints - which worked so successfully, post-1945, with America’s establishment of the Bretton Woods monetary system, the United Nations, and NATO (among other organizations) - as a “constitutional” order. Other scholars have noted that similar processes have worked successfully in postwar Europe, constraining German power and bringing long-term peace and prosperity to the continent.

In an influential empirical study of European integration, Slaughter has demonstrated the important role courts have played in the process. Slaughter’s call for an increasing cosmopolitanism on the part of U.S. judges through transnational “court-to-court” dialogue is inseparable from her commitment to a new “constitutional” world order - which she believes serves the best interests of the United States. Slaughter considers her scholarship entirely uncontroversial. But were her ideas and those of her colleagues to be adopted, the results would be profoundly troubling. Judges would become policy makers who take their cues from international popular or professional opinion. Moreover, positions held by many Americans on such issues as affirmative action and the death penalty would no longer be seen as matters of cultural difference or principled disagreement. Instead, U.S. policy on such issues would be considered problematic aberrations or disturbances within a rapidly integrating world system.

Millennial expectations

The second wing of the multilateral movement, whose adherents are scattered broadly over the fields of law, philosophy, and political theory, is focused less on institutional developments than on the emergence of a new moral order. While a considerable amount of this scholarship is devoted to the discussion of “serious international crimes,” such as genocide or crimes against humanity, its adherents, drawing from the well of legitimacy created by these discussions, routinely veer into broader territory, including questions of policy and domestic governmental structures.

These scholars and intellectuals, who might be described with some accuracy as “millennialists,” typically share the conviction that the world is at the dawn of a new era characterized by universal consensus concerning basic “human values.” In their eyes, the United States stands in the way of realizing this new order. In particular, America’s failure to grant positive social and economic rights of the sort enshrined, for example, in the International Covenant on Economic, Social and Cultural Rights and the European Social Charter (such as rights to housing, welfare, employment, education, and health care), its support for the death penalty, its skepticism about group rights, and even (in the wake of Bush v. Gore) its electoral college, are singled out for condemnation. What is needed, say the millennialists, is a broadranging project aimed at integrating the laws and public policies of the United States into the emerging moral order. For the millennialists (unlike the social scientists), the question of whether this advances or hinders interests of the United States is irrelevant: Universal morality is the overriding concern.

One of the more striking features of contemporary intellectual life is the degree to which, since the Berlin Wall fell, philosophers and political theorists who once battled each other across longstanding intellectual divides have united around the millennial project. Prominent neo-Hegelians, utilitarians, Rawlsian liberals, cosmopolitans, and multiculturalists have become transfixed by a utopian vision of a transnational and postnational world. Their core convictions are, first, that history is poised to enter a new stage and, second, that the United States is truculently standing in the way.

Cambridge neo-Hegelian Marc Weller, for instance, in an article in the Cambridge Review of International Affairs entitled “The Reality of the Emerging Universal Constitutional Order,” has posited a universal history divisible into a three-part progressive trajectory with a worldwide constitutional order as its end-point and apotheosis. In the initial stage, “the classical period of international law,” the world order was dominated by governments (Weller references the United States as a contemporary atavistic example) that “believe[d] themselves to be the exclusive representatives of a fully sovereign entity, endowed with a full panoply of natural rights and only bound by the very rules they have positively accepted.” In the next stage, the world is comprised chiefly of “governments which have rediscovered modernity,” where the sovereign state remains the principal ordering unit but “legal rules and institutions can now fulfill functions that go beyond the narrowly defined self-interests of the individual members of the system and instead serve common values where it has been possible to achieve universal agreement on them.”

Finally, the world will enter - indeed, is now entering - the “third paradigm; that of the emerging universal constitution,” involving “the empowerment and self-regulation of literally all mankind through the creation of a global social process which is conducted by all under the rule of law.” “This emerging system,” Weller writes, will be administered by “universal mechanisms of public administration” that “feature an infinite number of constitutionally authorized actors which are empowered to fulfill certain public functions within the universal [constitutional] system.” For Weller, the European Union, which has transcended the “legitimating myth” of popular sovereignty, is the showcase for this new paradigm.

The utilitarian philosopher Peter Singer in his recent book One World reaches conclusions not unlike the neo-Hegelian Weller. Singer offers his title both as an empirical description of the increasing interconnectedness of the world and “as a prescription of what the basic unit of our ethical thinking should be.” “Is the division of the world’s people into sovereign nations a dominant and unalterable fact of life?” Singer asks, before calling for, among other things, “a global system of criminal justice, so justice does not become the victim of national differences of opinion,” and a new worldwide deference in policy making to global public opinion. Now is the time, he argues, that “we should be developing the ethical foundations of the coming era of a single world community.” This, he says, will lead in turn to a “world government” that takes “all humans, or even all sentient beings, as the basic unit of concern.” For Singer, as for Weller, there is a model (the European Union) and an obstacle (the United States). “When the world’s most powerful state,” Singer writes, citing the Kyoto Protocol and the International Criminal Court, “wraps itself in what - until September 11, 2001 - it took to be the security of its military might, and arrogantly refuses to give up any of its own rights and privileges for the sake of the common good - even when other nations are giving up their rights and privileges - the prospects of finding solutions to global problems are dimmed.”

Prominent Rawlsian liberals have also signed on to this transnational, postnational project. Rawlsians famously begin by positing abstract individuals denuded of all peculiarly personal characteristics and attachments, and then imagine these individuals deliberating from behind a “veil of ignorance” to reach a consensus on the requirements of justice. While the late John Rawls himself stubbornly resisted taking his ethical theory beyond the boundaries of the nation, an up-and-coming cadre of postnational Rawlsians like Andrew Kuper of Cambridge University and Princeton’s Charles Beitz have set themselves to the task of “being more royalist than the King” (as Kuper puts it) by extending the reach of Rawlsian justice to a global level. Cosmopolitan Rawlsians emphasize the importance of setting up new global deliberative forums that will articulate the universal principles on which all “rational” and “fair-minded” people can agree. As it happens, these universal, rational principles always lead to certain policy positions - namely, anti-death penalty, pro-Kyoto Protocol, pro-International Criminal Court, pro-universal jurisdiction, pro-welfare state, etc. As a result, U.S. public policies and sovereignty pose a problem for the cosmopolitan Rawlsians as well. For Weller, the public policies of the United States and its aggressive defense of sovereignty are behind the historical curve, and for Singer they are unethical. But for the Rawlsians they are unfair or irrational.

Martha Nussbaum, a cosmopolitan at the University of Chicago, contends that the time has arrived for political theorists to imagine a polity that comprises all of humanity. In her book For Love of Country?, she asserts that the “ideal that is … [most] adequate to our situation in the contemporary world … [is] the person whose allegiance is to the worldwide community of human beings.” Citing the Stoics and Kant, she calls for the construction of a global “community of dialogue and concern” that will transcend barriers to “rational deliberation,” such as patriotism and primary allegiances to family, friends, and fellow citizens. Cosmopolitans like Nussbaum do not call for the end of the nation-state just yet: They argue that it will prove serviceable for the time being for administering delimited geographic districts. All the same, such thinkers argue, citizens’ loyalties and ethical and political commitments are shifting away from those closest to them and toward the complex worldwide network of authorities, arranged at the global level, to serve as a constitution for all humanity.

Interestingly, this project has proved too much for some prominent multiculturalists, who, while agreeing with the cosmopolitans on most matters of public policy, persist in attributing special importance to the role of group identity. A tactical alliance has taken shape. Rogers M. Smith, a multiculturalist political theorist at the University of Pennsylvania and author of Stories of Peoplehood, emphasizes a world of multiple allegiances and multiple potential memberships, which would recognize primary commitments to religions, political movements, cultures, races—or even nations. But Smith, like many other adherents of multiculturalism, remains a supporter of the globalist project. Humanity remains the touchstone of his theory, one that accords no special political value to nation-states as against any other associational grouping. Smith envisions the increasing importance of “transnational political arrangements” in a new order under which “existing governments at all levels [are] at best only ‘semi-sovereign,’ authoritative over some issues and not others, in the manner that acceptance of multiple particularistic constitutive stories would also reinforce.” “In the resulting political climate,” he declares, “it might become easier to construct the sorts of systems of interwoven democratic international, regional, state and local governments that theorists of ‘cosmopolitan democracy’ … all envision.”

Reading the zeitgeist into law

The scope and ambitions of the multilateralist project are most apparent in the philosophical and social-scientific schools of thought. It is in the highly concrete and doctrinal writings of law professors, however, where the rubber meets road. It is here that high theory is translated into a pragmatic roadmap for integrating the United States into the global constitutional system. The goal is, in the words of Yale Law School’s Harold Koh, “bringing international law home.”

In their efforts over the years, these legal advocates have crafted an astonishingly varied and creative set of highly technical arguments for how and why American judges are bound by law to integrate American law and the Constitution into the emerging constitutional and moral order. Law professors increasingly present these arguments in classes and advance them in law reviews that are read and cited by lawyers and judges, including Supreme Court justices. Activist groups hold “how to” seminars designed to train lawyers to use these arguments in litigation campaigns aimed at the reform of domestic public policy. For example, the American Civil Liberties Union (ACLU) devoted a recent conference at the Carter Center in Atlanta to training American lawyers and “social justice” activists in “using international law and human rights norms to advance justice in U.S. courts.” The training sessions emphasized that such laws and standards might prove especially useful in cases involving “racial equality, women’s rights, workers’ rights, and economic justice; environmental justice; gay, lesbian, bisexual and transgender rights; and disability rights.” Increasingly, academics and activists convene joint conferences. Yale Law School’s Global Constitutionalism Seminar and New York University Law School’s Global Law School Program, whose founding director was former ACLU head Norman Dorsen, are two such venues where American judges can sit down with American law professors and foreign judges to think creatively about the legal approaches to the global constitutional project.

One part of this campaign involves a scholarly push to have international law - and especially the highly malleable and rapidly evolving modern version of “customary international law” - held binding on American courts. A second and related part involves a broader effort to integrate American judges into a global “conversation” so they can “learn” from their counterparts in other countries, and, in due course, apply what they have learned as sitting federal judges. Unlike the global deliberations imagined by Martha Nussbaum, these more delimited conversations taking place among policy elites are eminently practical, and pack the sort of payoff that was evidenced in the Supreme Court’s gay-rights and affirmative-action decisions last term. Indeed, Supreme Court justices have become prominent (and prized) participants in these conferences.

The specific justifications for “bringing international law home” run the gamut. The least problematic involve appeals to the terms of treaties ratified by the United States, though advocates can be highly creative in such appeals. Justice Breyer, for one, has encouraged advocates to use the treaty approach to advance domestic public-policy change, suggesting in recent speeches that international treaties “may eventually prove relevant” in death-penalty cases, and that “the number of treaties relevant to particular domestic legal disputes seems to be growing.” This approach, however, has its limits. The United States has refused to ratify or has attached reservations to many of these agreements, although this did not stop Justice Ginsburg from citing the Convention on the Elimination of All Forms of Discrimination Against Women in her affirmative-action decision as evidence of emerging global “norms” or practices.

Alternatively, contemporary law professors and legal activists have made the historical and precedential argument that “the law of nations” - i.e., treaty law, customary law, and, for some, natural law - is and always has been considered binding on American judges. As evidence for this, they cite the Supreme Court’s casual assertions over the years in a smattering of shipping cases that, as the Court put it in the century-old but newly celebrated Paquette Habana decision, the law of nations (or international law, as the law of nations became increasingly known in the nineteenth century) “is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.” But before the rise of the modern statutory nation-state in the twentieth century it was broadly accepted that the law of nations was part of “the law of nature,” and thus there was little fussing at that time over importation of law from a “foreign” authority into American law. The law of nature, after all, was not “foreign.”

In appealing to the principles of Paquette Habana in a modern context, many of today’s activists have concluded that the most auspicious route to transforming domestic public policy is not through the law of nations generally, or through treaties, but through “customary international law,” a subcategory of the law of nations. That law, unlike treaties, has the advantage of being available for immediate use by judges in the absence of any affirmative acts of Congress or the President. Indeed, some more audacious scholars have already argued that customary international law is binding on American judges even in direct opposition to the wishes of the nation’s political branches.

The enthusiasm for customary international law began in the waning days of the Carter administration, when its Justice and State Departments submitted an amicus brief in Filartiga v. Pena-Irala (1980). The case involved the torture of a Paraguayan by another Paraguayan in Paraguay; however, the suit was brought in an American court pursuant to the eighteenth-century Alien Tort Claims Act, which granted federal courts jurisdiction “where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Prior to the 1960s, the Alien Tort Claims Act had only been invoked once - in an admiralty case. In an opinion written by liberal federal judge Irving Kaufman, the U.S. Court of Appeals for the Second Circuit adopted the Carter administration’s view that customary international law - in this case, as it proscribed torture and protected fundamental human rights - was binding on U.S. courts. The Filartiga opinion has since been singled out for lavish praise by progressive legal academics and political activists. Yale’s Harold Koh, for instance, called it “the Brown v. Board of Education” of the transnational human-rights movement, invoking it along with other sources of international law in questioning the (transnational) legality of prison conditions and the conduct of American police forces, the death penalty, same-sex marriages, and even the Supreme Court’s ruling in Bush v. Gore.

Making new customs

Where does “customary international law” come from? Conveniently, that’s hard to say. Customary international law cannot be said to come from any one source: Its substance is adduced from an array of sources by scholars or by judges informed by scholars. Traditionally, custom was defined as a widespread, general practice that was understood to be binding as law. Whether a certain behavior or activity might be included in the customary law was determined inductively, through observation. The content of traditional customary international law may have changed over time, but change was evolutionary: It tended to take place slowly, imperceptibly, and apolitically. After the Second World War, however, in the wake of United Nations efforts to codify international law, and the proliferation of international agreements and conventions, the boundary between written international law on the one hand, and unwritten customary international law on the other, began to blur. This blurring was accentuated by the terms of the U.N. Charter itself, which announced that the United Nations would give precedence in its activities to efforts to codify not only wellsettled practices but what was adjudged to be the “progressive development of international law.”

This new commitment proved revolutionary. General practice was still relevant in determining the content of customary international law. But, in line with the new commitment to “progressive development,” a practice need not have been longstanding. Greater emphasis was placed on the question of whether that practice had come to be accepted as law. And the question of whether a certain practice was accepted as law was to be determined on a case-by-case basis by weighing the evidence from a proliferating array of sources, including international agreements and covenants (including U.N. opinions, actions, and resolutions), the opinions of judges of international and national courts, the pronouncements of states, and the opinions of scholars. Since these sources of law today are highly dynamic and influenced by transnational interest-group politics, the content of customary international law itself is now malleable.

The process of integrating international legal standards at the domestic level has proceeded pretty much unquestioned abroad: Most foreign judges are enthusiastic about integrating their law and their constitutions into an emergent and evolving world system. American academics have worked hard to persuade U.S. judges to follow a similar path by decrying “legal xenophobia,” as Yale’s Jack Balkin did recently in his weblog; by praising the efforts of American judges to overcome their “provincialism,” as Balkin’s colleague Bruce Ackerman did in the Virginia Law Review in 1997; and, in Slaughter’s words, by urging the development of productive “transjudicial relations.” Such relations, as Justice Breyer puts it, “help the world’s legal systems work together, in harmony, rather than at cross purposes.” Steps in this direction have been warmly praised in law review articles and other forums of contemporary legal thought. They have also been placed at the core of cutting-edge law school programs that bring together foreign and American judges. The aim is to share information and forge personal and institutional bonds. Today, briefs submitted to the Supreme Court not only increasingly urge the Court to follow international law but also to look to foreign experience, and even foreign public opinion. These briefs, and the scholarly praise that comes from following their lead, as the Court’s recent gay-rights and affirmative-action decisions indicate, are already leading the Court to new sources of authority. Eventually, and possibly sooner than we think, the nature and path of American constitutional development will be radically altered.

We are the world?

This impending revolution in constitutional thought and practice finds a parallel in an earlier judicial transformation of the Constitution. Up until the 1930s, American constitutionalism was conceived of as a set of formal grants of governmental powers and limitations. The traditionalist model of judging, known as “legal formalism,” came under attack by the Progressives, as well as by academics associated with the new social sciences. Faced by the problems of railroad and antitrust regulation, of child labor and health and safety laws, and the widespread unemployment of the Depression, legal formalists attempted to determine whether, according to the constitutional text, these were matters for the states or the national government, Congress or an administrative agency. To the Progressives, this approach made little sense. It was, as Franklin Delano Roosevelt called it, “horse and buggy constitutionalism.” The Progressives emphasized that in an increasingly complex urbanizing and industrializing world the old formal categories that set fixed roles for state and national governments, and for the federal government’s three branches, made it all but impossible for government to cope effectively with the complex problems of the modern world. The most significant characteristic of that world, they asserted, was its interconnectedness.

When, in the aftermath of his Court-packing scheme, Roosevelt finally put his men on the Court, they made interconnectivity the first principle of modern constitutionalism. Now, an empirical showing of the nature of a policy problem, rather than the study of the Constitution, determined which branch of government would tackle it. Landmark New Deal cases were, accordingly, full of allusions to social scientific findings on the scope of social and economic problems. The sharp constitutional distinctions once drawn between state and federal powers were held to be abstract formalisms that did not match the nature of the problem at hand.

Today, it is the sharp constitutional distinction between a sovereign nation and the rest of the world that is under intellectual assault, and thought to stand in the way of global solutions to global problems. The distinction between nation and world is increasingly looked upon as an abstract and unhelpful contrivance. This approach was readily apparent in Justice Ginsburg’s characterization of race discrimination as “a global problem” during oral argument in the affirmative-action case, immediately prior to suggesting comparisons between American policies and those in Canada, the countries of the European Union, and South Africa. Many of the Court’s justices see themselves as completing the Progressive project: Just as the New Dealers transcended an outmoded localism and pioneered a constitutionalism for a newly interconnected nation, so too the new legal multilateralists would transcend, in the words of Justice Ginsburg, the outmoded “island or lone ranger mentality” of the nation-state.

Harold Koh has expressed high hopes that “by domesticating international rules, transnational legal process can spur internal acceptance even of previously taboo political principles.” At this point, these hopes extend well beyond attempts to import rule-of-law and anti-genocidal norms into failing and barbarous states. Open efforts are now being made to bring a wide variety of domestic American public policies in line with the domestic practices of Europe and the pronouncements of international bodies. And this is being accomplished through highly dubious constitutional means. The approach of today’s jurisprudential innovators either declares or implies that many American policies are either disturbances to an emergent world system, atavisms in the nascent worldwide moral order, or the product of an intellectually indefensible provincialism. And they increasingly claim that judges have a legal obligation to bring American law in line with various international moral standards. But for judges to import foreign and international law and the policy preferences of other states in this manner raises disturbing questions about what it means to swear to uphold the Constitution of the United States. At a minimum, Congress and the wider public should insist that the Court’s justices face critical questioning about this innovation. They should be called upon to justify both their turn toward judicial diplomacy and their efforts to move beyond the U.S. Constitution as the law of the land.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: globalism; jbs; judicialactivism; judicialactivist; judicialactivists; lawrencevtexas; multilateralism; newworldorder; sovereignty; supremecourt; transjudicialism
What makes multilateralism even MORE of a threat is that the people do not VOTE for representatives in the New World Order Government.

Spread this article far and wide. Call your Senators and Representatives. Get them to minimize our ties to the U.N.

1 posted on 03/27/2004 10:04:26 PM PST by MegaSilver
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To: MegaSilver
Printed out and bumped.
2 posted on 03/27/2004 10:29:24 PM PST by knarf (A place where anyone can learn anything ... especially that which promotes clear thinking.)
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To: MegaSilver
"Many of the justices actively seek out counsel from other countries on some of America’s most controversial policy issues. Justices Breyer, Ginsburg, and Sandra Day O’Connor have met with French President Jacques Chirac to discuss French perspectives on the death penalty and civil liberties - and they did so shortly after France, as a member of the Council of Europe, had announced that abolishing capital punishment in the United States was one of its priorities."

TITLE 18 > PART I > CHAPTER 45 > Sec. 953.

Sec. 953. - Private correspondence with foreign governments

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

3 posted on 03/27/2004 10:46:07 PM PST by boris (The deadliest Weapon of Mass Destruction in History is a Leftist With a Word Processor)
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To: boris
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Very interesting.

Well, it looks like I have my work for next summer cut out for me. I now intend to pay a visit to our folks in D.C. and lead a rally against multilateralism and judicial activism.

Wish me luck, pray hard, and hope I can find the money...

4 posted on 03/27/2004 10:48:25 PM PST by MegaSilver (The Clintons left the lying, hypocritical mark on their party--just look at Kerry)
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To: MegaSilver
"Very interesting."

Indeed. Not only are the Justices' actions highly questionable under this statute (the Logan Act), don't forget Jesse Jackson and Jimmy Carter.

You or I would spend time in the Greybar hotel for what all of these people have repeatedly done without a peep of criticism.

--Boris

5 posted on 03/27/2004 11:03:28 PM PST by boris (The deadliest Weapon of Mass Destruction in History is a Leftist With a Word Processor)
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