Subordinating the Constitution to foreign law

This wasn't supposed to happen here

[Reprinted from Issues & Views July 28, 2003]

It comes as no surprise to Americans that there is good reason to fear the consequences of Supreme Court decisions. Now, the Federalist Society, by focusing on two decisions -- one delivered last month and another delivered a year ago -- succeeds in confirming our worst fears. Both cases involved purely domestic concerns, yet the Justices felt the need to look abroad and cite foreign and international law to justify their opinions. In a Federalist Society policy study, "The Sovereignty Implications of Two Recent Supreme Court Decisions," Eric Hargan claims that such a trend is not only alien to the American legal system, but if unchecked, "will produce a further erosion of American sovereignty, in addition to the mischief already done by these cases."

Notice how this third branch of government has moved from being an entity with extremely limited powers, to usurping for itself the power to interpret the Constitution's meaning, onward to inventing the power to impose international legal precedents over American law.

In the case, Lawrence v. Texas, in which the court overturned a Texas statute barring same-sex sodomy, Justice Kennedy, writing for the majority, cited a decision by the European Court of Human Rights (ECHR), a law that was used in the Supreme Court decision as a controlling interpreter of "values we share with a wider civilization." Hargan writes,

The question immediately arises: Why use the ECHR in particular? What is special about the ECHR that its opinion is allowed to serve as evidence of "values we share"? Why is the ECHR case more representative of "values we share" than the Texas statute invalidated by the Court? No evidence is given. . . .

[N]ot using the ECHR as an authority would not have hindered the Court from striking down laws it considers backwards. Furthermore, using the ECHR allows a camel's nose under the tent of American constitutional jurisprudence, by allowing a foreign court to serve as an authority in American constitutional cases on domestic issues, in a process it is hard to see the end of.

Hargan describes the second case in question, that was decided in 2002, Atkins v. Virginia, which involved striking down laws regarding death sentences for the mentally retarded. Here again, the majority opinion cited foreign authorities, with Justice Stevens claiming that "it is fair to say that a national consensus has developed against" this type of execution. Is Stevens telling us something about how he views his job? Does he sit on that bench in order to apply constitutional law, or to measure "national consensus?" Hargan again raises questions:

One could question why the Court assumes the commanding role in determining the existence and content of a "national consensus." One could even question how an existing national "consensus" could ever result in the overturning of the laws of a sizable number of states. But even granting these matters, it would still seem out of bounds to consider the disapproval of the "world community" as part of a finding of a "national" consensus. This, however, is what the Court did. In a footnote explaining the consensus-finding, the Court noted that it had found support for its view in, among other things, briefs filed by psychologists and religious communities, as well as polling data; however, it also cited an amicus brief filed by the European Union (EU) . . . .

The Court did not just find support from the EU, but used it as a proxy for the world community, without ever explaining how the EU obtained that authority. . . . But how can the Court cede even rhetorical authority to the EU as an arbiter of the views of the "world community" (whatever that is)? Is the Court not part of the world community? Does the U.S. concede that its principles are not entitled to respect from other nations? If so, this is a large concession, and the Court should rethink this, both on its own behalf and as part of the national government. The Court has now used international opinion in two cases purely domestic (prosecution of American citizens by American states for crimes committed in America), without providing any guide for where the Court will not invoke foreign authorities.

Hargan raises a critically important point in regard to international laws, since some EU law would protect U.S. criminals from the full operation of U.S. law.

But why was the EU in particular chosen as an authority? The U.S. is not a part of the EU, has no part in determining the EU's laws and is as much a part of the "world community" as the EU is. In addition, the use of the EU as a guide is curious because the EU is a supra-national European body, not another country, and not a democracy in any conventional sense. The EU also aims, as has been remarked by leading members of the EU, to serve as a foil to U.S. interests.

Acceptance of the EU's authority would seem to be at best carelessness, at worst a usurpation of the foreign relations powers belonging to the political branches. Aside from one's personal views on the subject matter of these two cases, there is a systemic issue at stake, one which has constitutional implications far greater than the survival of state sodomy laws and the rights of mentally retarded death row inmates. The question is whether the Supreme Court is using its undoubted right to interpret the U.S. Constitution to subordinate the Constitution and the federal system to an international legal regime which is not answerable to American voters or the American system of checks and balances.

Hargan refers to often-cited precedent for interpreting domestic statutes in accord with international law, but shows how they do not allow the use of foreign authorities in cases such as Lawrence and Atkins. He further points out,

The EU and the ECHR are not authorities on the "law of nations." They are individual political and juridical entities, creating and interpreting their own laws. It might be said in the Court's defense that the Court did not call these foreign sources the "law of nations." Unfortunately, the Court did something worse: instead of using the "law of nations," it created a category of "world community" opinion and "values we share" which can support overriding American laws and decisions.

Hargan describes earlier cases in which the Supreme Court cited international law, but maintains,

The foreign sources were used only as incorporated into an American source or to show that they were consistent with the Court's already-determined finding. In neither case was the foreign source used to strike down part of a previous Court opinion (as the ECHR was used in Lawrence to strike down part of the Bowers opinion), nor was a single entity's brief used as a source of world opinion (as the EU's brief was used in Atkins).

The use of foreign authorities is directly against the American system of governance, claims Hargan. Furthermore, the American system is flexible enough to allow for change without consultation with foreign sources. "Citation of foreign authorities does nothing except indicate that the Court is incapable of deciding something for itself, and this failure of nerve is an implicit concession of sovereignty." He concludes:

The American people at no time subordinated themselves to an international sovereign and have fought wars to avoid being subordinated to European authorities. Thus, it is not just a violation of federalism principles when the Supreme Court does away with state laws using foreign authority. It is something more drastic: a break with longstanding treatment of foreign and international law, an erosion of America's national sovereignty and a breaking of the implicit bargain made between our current democracy and the constitutional principles it has agreed to respect.

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