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October 9, 2008

Looking for Law in All the Wrong Places

By

Some Supreme Court justices have taken to using international law as a reference point to interpret provisions of the U.S. Constitution. Yale Law School Dean Harold Koh applauds the practice, hailing these justices for ushering in the dawn of a "transnationalist jurisprudence."

Not everyone is as pleased. Many -- lawyers and laymen alike -- think it shows a blatant disregard for national sovereignty. They lament that future lawyers attending one of the nation's most elite law schools are being inculcated with this misguided theory. Even more worrisome: Dean Koh is heavily rumored to be at the top of Barack Obama's Supreme Court short list -- bad news for those who wish to stop this theory's pernicious growth within the judiciary.

The high court is increasingly injecting international law into cases addressing purely domestic issues. In the court's outrageous 2005 decision overturning the death penalty for a brutal, 17-year old murderer, it was one of three major factors cited to justify the ruling. Invoking the "evolving standards of decency" doctrine that has, alas, become part and parcel of the Court's Eighth Amendment jurisprudence, the Court opined that there is an international consensus that these "evolving standards" forbid the execution of anyone under 18 years of age, no matter how heinous the crime. This international consensus was indicated in part by a treaty to which the United States is expressly not a signatory.

Rather than base their ruling on the original meaning of the Eighth Amendment, the five justices of the majority instead imposed foreign standards on American citizens in the name of our Constitution. In doing so, the Court audaciously elevated international mores above the considered democratic judgment of the states and called it "law."

Two sitting Supreme Court justices have publicly defended this bizarre trend. Justice Stephen Breyer insisted that the "enormous value...of trying to learn from the similar experience of others" justifies giving weight to foreign laws. It's particularly valuable, he says, when addressing human rights issues. Why? Because "you're asking a human question, and the Americans are human -- and so is everybody else."

It is rare that one sees the "I'm a Pepper; he's a Pepper; wouldn't you like to be a Pepper, too?" theory of constitutional adjudication. Yet this approach appeals not only to Justice Breyer, but also to Justice Ruth Bader Ginsburg, who admonishes that we "can join hands with others" by paying homage to international law.

Yet these justices quickly shun the hands of their global brethren when addressing certain issues, revealing a curious selectiveness in their eagerness to "learn" from other nations. Justice Antonin Scalia has pointed out that the Court "said not a whisper" about international law in the series of abortion cases, one of which was authored by Breyer. They were conveniently silent about the fact that the vast majority of nations place more restrictions on abortion than the United States.

Their disregard of international abortion standards is just one example of how these judges, despite their lofty rhetoric, use international law as a tool to elevate their own policy preferences to a constitutional level. When international law cuts against their agenda, it's of no utility whatsoever.

Despite Justice Breyer's contention that our legal structure is similar to that of other democracies, certain fundamental rights found in our constitutional system are not recognized by many other governments. For example, America's broad right to trial by jury is not common in the civilian system utilized by much of Europe. Similarly, the Exclusionary Rule enjoys little acceptance beyond our shores. And yet both of these issues involve human rights -- or "human questions," if you prefer.

This one-way ratchet is evidence that "transnationalist" justices have other motives for citing international law. Indeed, Justice Breyer has suggested that judiciaries should be "instruments" in bringing about the "globalization of human rights." Noble though that goal may be, the proper role of the U.S. judiciary is to interpret provisions of the Constitution according to their original meaning, not according to cherry-picked "consensus views" that judges want to turn into law.

Thus far in the presidential campaign, neither candidate has given much attention to judicial issues. Yet our next president will likely appoint at least three Supreme Court justices who will, in turn, determine whether the "transnationalist" trend will continue to erode the highest law of the land. 

Deborah O'malley is a Research Associate in the Center for Legal and Judicial Studies.

First appeared in American Spectator Online

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