Posted on 11/17/2007 2:51:06 PM PST by 68skylark
The morning plenary panel at the Federalist Society's annual lawyers' convention concerns "the Constitution & American Exceptionalism: Citation of Foreign Law." First up is Georgetown University law professor Nicholas Rosencranz who lays out the basic case against relying upon foreign or international law in constitutional interpretation. Rosencranz makes several points (and my summary us unlikely to do justice to his remarks). The Constitution, he notes, draws its legitimacy from the consent of the governed and the American Revolution was motivated, in part, in opposition to the imposition of foreign rule on the colonies. Thus it would be quite incongruous for the meaning of the Constitution to be dependent upon the decisions and views of foreign governments or international institutions, rather than the considered views of the American people. Changing the meaning of the Constitution, Rosencranz notes, is to be done through constitutional amendment, not the changing conceptions of justice embraced by foreign governments and international organizations.
The most interesting part of Rosencranz's remarks is a proposal for a constitutional amendment declaring that foreign and international law should not be relied upon to interpret or construe the U.S. Constitution. At one level this is quite a radical proposal — perhaps killing a gnat with an elephant gun, Rosencranz acknowledges — but Rosencranz offers a few reasons why such an Amendment would be quite in line with the American experience. First, Rosencranz notes, there is precedent for amending the constitution with rules of constitutional construction. Both the 9th and 11th Amendment are, by their own terms, rules of interpretation, explaining that the Constitution should not be interpreted in a particular fashion. Further, Rosencranz observes, both Amendments stated interpretive rules that (at least many of) the Founders believed should have gone without saying. They reaffirmed the prevailing understanding of the constitutional text more than they amended it (though the 11th Amendment also overturned a Supreme Court opinion adopting a contrary view). There should be little doubt, in Rosencranz's view, that the Founders would have also disapproved of relying upon foreign law in constitutional interpretation. So such an amendment would help reinforce, or perhaps restore, an original understanding of the Constitution, and reinforce the idea that the American Constitution as the ultimate expression of the will of the American people.
Now I don't for a minute expect such an amendment to pass — nor, do I suspect, does Professor Rosencranz. Yet if reliance upon foreign and international law in constitutional interpretation is wrong, as Rosencranz argues, there is nothing particularly incongruous about saying so in the Constitution. His is an interesting proposal that may help inform discussion and debate over the role of foreign law in constitutional interpretation.
Sounds good to me.
—great idea—
Good idea. But a bit of a dodge too. This could also be passed as an act of Congress and judges would also be bound to obey it....it would just be a lot easier for liberals to overturn it.
Still, it’s worth pushing for in Congress UNTIL there was a real chance for a true amendment.
An Amendment is not necessary. The problem these past 60 years are Congresses unwilling to defend their legitimate, constitutional powers. Rather than make the tough decisions, our congressional clowns would rather the courts make them. Avoidance of tough decisions make reelection much easier.
If Congress would only fire (impeach & convict) a few black robed tyrants now and then, there would be no problem.
Actually you have it backwards. Congress counts on the Courts to make law they can't get passed themselves. In particular, the Dems count on having their policies implemented by the Courts because they could never get them done at the ballot box.
Like I said, they let the courts make the tough decisions.
Way to go, Rosencranz! And Hi to Guildenstern, too.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.could be interpreted to mean that treaties and the Constitution are on the same level. I would make it clear that any treaties are subordinate to the Constitution and that no treaties may be entered into which gives powers to any foreign bodies beyond those given to Congress.
Or do as Andy Jackson did, “They have made their decision. Now let them enforce it.” Our founding fathers never meant for the country to be controlled by lawyers.
No need for an amendment. The Constitution gives the legislative branch the power to enact a law and make that law exempt from judicial oversight.
Not to me. The foundation of much of American law is British -- yeah, that's foreign -- common law. Take that away, and you're forcing judges to make up their own interpretations.
I remember reading a brief from either O'Connor or Ginsberg referring to foreign law in how they made their decision.
And I've read opinions by Justice Scalia where he does the same thing. Supreme Court decisions throughout our history have on occasion referenced foreign source. In the early years they had nothing but that to reference. But as cases have been decided and precedent established, I'm not aware of a single case in recent history where the Supreme Court has used foreign sources as a sole support, or even a large part of their support for a decision. Foreign sources have been referenced, but only after a large body of domestic precedent have been quoted.
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