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Justice Ginsburg on Foreign Law and the U.S. Constitution:

I haven't followed the debate over the use of foreign precedents, international treaties, etc., to interpret U.S. law as closely as I should. Thus, I was, but perhaps shouldn't have been, surprised and rather horrified to read this speech by Justice Ruth Bader Ginsburg. For example, she writes:

Interpreting U.S. Supreme Court precedent, a divided U.S. Court of Appeals for the District of Columbia Circuit held in 1989, during my tenure on that court, that foreign plaintiffs acting abroad - plaintiffs were Indian family planning organizations - had no First Amendment rights, and therefore no standing to assert a violation of such rights by U.S. officials. In particular, the Indian organizations complained of a condition on U.S. grant money: the recipients could not engage in any abortion counseling, even in a separate entity funded by non-U.S. sources. In dissent, I resisted the notion that in an encounter between the United States and the people of another land, "the amendment we prize as 'first' has no force in court." I expressed the expectation that the position taken in the Restatement (Third) of Foreign Relations would one day accurately describe our law. "[W]herever the United States acts," the Restatement projects, "'it can only act in accordance with the limitations imposed by the Constitution.'".... Among examples from that [October 2002] Term, I would include the Michigan University affirmative action cases decided June 23, 2003. Although the Court splintered, it upheld the Michigan Law School program. In separate opinions, I looked to two United Nations Conventions: the 1965 Convention on the Elimination of all Forms of Racial Discrimination, which the United States has ratified; and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified. Both Conventions distinguish between impermissible policies of oppression or exclusion, and permissible policies of inclusion, "temporary special measures aimed at accelerating de facto equality." The U.S. Supreme Court's decision in the Michigan Law School case, I observed, "accords with the international understanding of the [purpose and propriety] of affirmative action."

Indian plaintiffs (that is, residents and citizens of India) should have the right to go to U.S. courts and have them tell Congress how to spend U.S. taxpayers' money? The Supreme Court should rely on a "Convention" that the U.S. hasn't ratified? The meaning of the Fourteenth Amendment should be determined, in part, by "Conventions" ratified by such paragons of equality as Cuba, Libya, Syria, Saudi Arabia, Burundi, Burkina Faso, Chad, China, Kazakhstan, Vietnam, and so on, which therefore represent "international understanding"? I don't know whether to laugh or to cry.

Thanks to reader John J. Vecchione for the tip; his thoughts on the speech can be viewed here (3/16, no permalink available).

Mitchell Freedman (mail) (www):
David,

Agreed that it is inexcusable for Justice Ginsburg to cite a non-ratified treaty in one of her opinions on the US Supreme Court. However, I took the time to read Ginsburg's speech and found it to be better reasoned in part than I thought it would be.

Her point about Chief Justice John Jay, Chief Justice John Marshall looking to foreign precedent as authority, no differently than more modern courts cite law review articles, renders the issue mostly innocuous. Practically speaking, I think most American lawyers recall in law school many instances of older state and federal cases citing British (and sometimes French) law in a variety of common law contract and tort cases. Was that wrong? Or is the refusal of Scalia to want to cite any foreign law just Scalia's version of a "living Constitution," i.e. USA jurisprudence is now sufficiently developed where we do not need to cite foreign law.

I got a kick out of Justicer Ginsburg citing Chief Justice Roger Taney's Dred Scott opinion with its harsh denunciation of citing foreign law on the subject a black person's civil rights. Considering how often those of us who support Roe v. Wade are told that those who support Roe would also support the racist sensibility contained within Taney's Dred Scott opinion, this is a fun turn of the tables at the very least.

Saying this, though, I remain uncomfortable concerning the overall tenor of Justice Ginsburg's remarks--and citing foreign law the way Ginsburg and Justice Anthony Kennedy have been doing in recent years.

A final comment: Ginsburg is fairly clear in this speech she is talking about western European nations and Canada--not Mozambique or China where the history of the rule of law is not very well established in any modern (US history) sense. I thought, however, that in one of these recent USSC decisions, there was a citation to a non-European nation's jurisprudence. If I am correct in this last part, then this citation of foreign law is likely to be as untethered from our nation's Constitution as Scalia and Co.'s "federalism" jurisprudence.
3.18.2006 1:06am
Brent (mail):
Let us all now encourage our senators to insist that confirmation hearings fully assess ALL of the countries that a future Justice thinks are qualified to lead the United States Constitution.

"Mr./Ms. Potential Justice,
Please check only the box(es) next to the nations you feel comfortable with (listed FAIRLY, in random order):

Angola
Nicaragua
South Africa
South Korea
Cuba (c'mon, you know it's only a matter of time)
Iran . . . . ."
3.18.2006 2:13am
BobN (mail):
Don't forget...

Vatican City
3.18.2006 2:22am
Wintermute (www):
You were thinking Ruth is another Marie Curie or something?
3.18.2006 2:27am
Robert Schwartz (mail):
"she is talking about western European nations and Canada--not Mozambique or China where the history of the rule of law is not very well established in any modern (US history) sense."

Yes, white peoples' law. No little brown peoples' law for US.
3.18.2006 3:18am
Appellate Attorney:
In a January 1, 2006 Birmingham News op-ed, Alabama Supreme Court Justice Tom Parker pointed out the absurdity of citing to another unratified treaty, the U.N. Convention on the Rights of the Child, in Roper v. Simmons, the 5/4 decision purporting to find executing minors to be unconstitutional.

Parker observed that by citing to such authority, the liberal majority of the U.S Supreme Court was not only unlawfully claiming to void the laws of some 20 states but, in the process, usurping the treaty-making authority of the United States Senate.

Parker challenged every elected official who takes an oath to uphold the Constitution to actively resist such usurpation rather than passively accommodate it by maintaining the pretense that U.S. Supreme Court precedents based on foreign law are binding authority apart from the case.

Parker's view, although it would not have been out of place at the time of the Founding Fathers, has horrified the intelligentsia of today, who have rallied to the defense of judicial supremacy.

Earlier this week it was reported that an ACLU attorney has filed a complaint with the Alabama Judicial Inquiry Commission claiming Parker violated the Canons of Judicial Ethics when he wrote the op-ed and seeking discipline of the Justice, which could include his ouster from the Alabama Supreme Court, as a consequence.

Whatever happens in Parker's case, and whether one agrees or not with his historic position, it seems clear to me that the arrogance of the majority of the U.S. Supreme Court in citing to contemporary foreign law, including U.N. treaties unratified by the U.S., to "intrepret" our Constitution will lead to less respect for the Court and more calls to resist its usurpation.

The nine emperors have no clothes -- as more and more people are publicly admitting.
3.18.2006 3:54am
Cornellian (mail):
It may well be true that the US, in acting abroad, may do so only in accordance with the Constitution. At least it's not an obviously absurd position. But I think Ginsburg confuses this issue with the doctrine of standing. Even if the proposition is true, it does not follow that foreigners outside the US have standing to enforce it. In my view they don't and should not have that standing.

Citing foreign law is not always objectionable. Lots of English cases still inhabit the pages of US casebooks. I still remember reading Hadley v. Baxendale from first year contracts. I remember from the time of the Clinton impeachment that people were scrambling to dig up old English cases to try to figure out what "high crimes and misdemeanors" was supposed to mean. English caselaw is a special category for obvious historical reasons.

Having said that, I think that those who object to citing foreign law in Supreme Court decisions are primarily objecting to the situation in which the Court says "the Supreme Court of Country X interpreted their equivalent to the First Amendment this way and therefore we should adopt the same interpretation." This isn't making foreign law binding since it's being cited only persuasively, but I still don't think it's a good idea for any number of reasons. In law, context is everything (or a big percentage of it) and a provision in a foreign constitution (even if identically worded) may have an entirely different context behind it that drives an entirely different approach to its interpretation.

Having said all that, Justice Parker is completely and totally wrong though I can't say I'm suprised that he got himself elected in the same state that elected Roy Moore. He's simply repeating the sentiments of the lunatic fringe that the judicial oath of office allows state court judges to ignore Supreme Court decisions that they consider to be wrong. Apparently in Alabama they take an oath to uphold a version of the Constitution that doesn't contain the Supremacy clause or that vests the judicial power of the United States in the Supreme Court. Clarence Thomas should have been embarrassed to attend his inauguration.
3.18.2006 5:51am
Cornellian (mail):
In a January 1, 2006 Birmingham News op-ed, Alabama Supreme Court Justice Tom Parker pointed out the absurdity of citing to another unratified treaty, the U.N. Convention on the Rights of the Child, in Roper v. Simmons, the 5/4 decision purporting to find executing minors to be unconstitutional.

Would it have been ok if they had reached the same result without citing any foreign law or UN conventions? Presumably no one is suggesting that executing a six year old would be constitutional (though maybe I'm assuming too much here) and everyone (or nearly everyone) agrees that executing an 18 year old is constitutional. In other words, there's a line to be drawn somewhere and if a state says the line is 17 and the Supreme Court says the line is 18, I can understand taking the position that the Supreme Court is wrong, but I don't understand the unseemly degree of zeal for executing those under 18.

I wonder whether an 18 year old facing execution can request alcohol as part of his last meal, or whether that would be denied on the grounds that the legal drinking age is 21 because those under 21 aren't considered sufficiently mature to handle the responsiblity of drinking alcohol. Just curious.
3.18.2006 5:56am
Adam Scales (mail):
Cornellian,

I do not understand your argument regarding Parker. Assuming (for what is, for me, an unendurably long moment) that it is acceptable to cite foreign sources and conventions to illuminate American Constitutional law, how could it EVER be acceptable to cite UNRATIFIED authorities? Of course, an unratified document can shed light on the meaning of different phrases, but it is not law in any sense I can recognize.

Can we not agree that in this controversy, we should at least confine ourselves to consideration to duly enacted law, rather than unenacted and inoperative drafts?
3.18.2006 8:18am
Bruce:
Indian plaintiffs (that is, residents and citizens of India) should have the right to go to U.S. courts and have them tell Congress how to spend U.S. taxpayers' money?

David, the question is one of standing to sue under the First Amendment, not authority to spend under Article I. The First Amendment says, "Congress shall make no law..." You can laugh or cry if you choose, but I don't think it's *that* crazy to think foreign citizens could raise a challenge under that provision.
3.18.2006 9:01am
Bruce:
Adam, many executive actions are unratified (e.g., presidential signing statements), as are most Supreme Court decisions. Why is it not OK to cite them as persuasive authority?
3.18.2006 9:06am
Cyn23 (mail):
Ah kneejerking. How enjoyable.

I am with the person who notes that the claim is in no way ridiculous, even if one might think it one. If our money was spent for enslaving Indians, there might at least be a colorable claim that they have the ability to sue to stop it.

As to citations. Horrors! Of course, justices all the time cite law review articles, which can be totally bogus and have not authority, to make a point. The fact something is UNRATIFIED (thanks for the bold!) does not make it of no use for that purpose. For instance, citing the unratified (but not by much) ERA would strike down the idea that discrimination by sex was patently just. The signing statements citation is surely sly, but it does the job too.

Perhaps, it is the foreign cite that bothers. Of course, the SC has cited foreign law for years for such background noise. She, remember, didn't rely on it. This might be hard for you to um remember, but it's true. Likewise, somehow other nations manage to cite our decisions w/o the sky falling. They did not become us, for good or ill.

So tiring.
3.18.2006 9:57am
Cornellian (mail):
I do not understand your argument regarding Parker. Assuming (for what is, for me, an unendurably long moment) that it is acceptable to cite foreign sources and conventions to illuminate American Constitutional law, how could it EVER be acceptable to cite UNRATIFIED authorities? Of course, an unratified document can shed light on the meaning of different phrases, but it is not law in any sense I can recognize.

In my post I stated I did not think it was acceptable to cite foreign sources to illuminate the meaning of the US Constitution (with the narrow exception of English common law cases for historical reasons). I don't think even ratified treaties should be cited for this purpose, let alone unratified ones. It not open to the federal government to change the meaning of the Constitution by signing a treaty. However, it's not for Justice Parker to decide which Supreme Court decisions are worthy of adherence and which are not. He took an oath to uphold a Constitution that vests the judicial power of the US in the Supreme Court, not in him, and which provides that federal law is supreme over state law. He's not free to disregard a Supreme Court decision that he disagrees with for citing foreign law anymore than he's free to disregard a supreme court decision he disagrees with for any other reason. If in fact the Supreme Court is making bad decisions, than there are two checks to that problem, appointing different judges or (in extreme cases) impeaching existing ones. Both of those checks are vested in the two federal elected branches, not in Justice Parker.
3.18.2006 9:57am
Marcus1 (mail) (www):
Should Indians be able to tell us how to spend our money? Umm, no. Should they be able to tell us when an administration is violating our own Constitution? Perhaps. If not, who's supposed to sue them for their Constitutional violations, me?

As to unratified conventions, I think you (and conservatives generally) blatantly misconstrue why one might look to another country's laws. It would seem a law professor would recognize that a judge's job is not just to decide what the law "means." It is also to <i>apply </i>the law to a factual situation.

Perhaps your statement stems from the idea that all notions of liberty and equal protection should have frozen in time when the Constitution was ratified. I'm just not sure that's a widely accepted view. I think the more predominant view is that questions of social justice have evolved some since the 18th century, or the 19th century, and that the Constitution does not bind us to apply only such 18th or 19th century norms.

Basically, I think we all know what the word "liberty" or the words "equal protection" mean. They're not obscure words. Th question is how to <i>apply </i>them in the 21st century. In that sence, I have heard no arguments for why it is inappropriate to look at what is done in other countries.

If we had looked around the world in the times of slavery, it wouldn't have told us what "equal protection" means. But it might have clued us in to the fact that we were applying it rather selectively.
3.18.2006 10:24am
Anonymous Reader:
Cornellian,

I did not read the actual article about Judge Parker, but unless I'm mistaken, no where in Appellate Attorney's post does he mention that Judge Parker is not to following the law.


Parker challenged every elected official who takes an oath to uphold the Constitution to actively resist such usurpation rather than passively accommodate...


Although Judges in Alabama are elected, it is not fair to say that the people of Alabama are lunatics or whatever for electing him. I consider it the absolute responsibility of elected officials to openly challenge laws that they feel are unjust; just as Judge Parker in the above quote seems to be saying. It would not be appropriate for him to bring his personal views into the realm of his decisions and jurisprudence, but unless I'm mistaken, every American has the right to his or her views on the laws and can work to "fix" or "change" them.

It would be akin to allowing the plessy v. ferguson decision to stand JUST because it's the "Law of the Land" handed down from the Supreme Court. All of that stare decisis, precedent, super duper precedent, etc, is ridiculous. Laws are meant to be challenged, changed, repealed, etc. It's the process that counts. The more a law is challenged, the more robust it becomes because it can withstand intense scrutiny. That's probably my biggest hangup about the phrase, judicial activism. US Supreme Court justices are not elected, yet they can have a profound impact on our lives. At least with elected officials, we the people can modify or change the laws in accordance with our collective desires, with the understanding that you can't please everyone.

In regards to the issue of citing foreign law, I would consider that a slippery slope. If citing German law to uphold or help persuade people about a court case is okay, would the same be true about citing Sharia law? Or using the laws of Iran to help the judges decision-making processes? As another commenter mentioned, context is important. What words, phrases, or terminology mean in one country with a distinct culture can be totally different from what they mean in another. And especially in a culturally diverse country like here in the US, definititions, viewpoints, and meaning must be clear so that everyone can understand what the law states.

Anonymous Reader
3.18.2006 10:32am
Abdul (mail):

If our money was spent for enslaving Indians, there might at least be a colorable claim that they have the ability to sue to stop it.


Maybe you misread the facts at issue here. We gave grants to organizations that provided family planning in India with the condition that the money not go to abortion counselling, and that's enslavement?
Please don't define slavery downwards. It's an insult to slaves.
3.18.2006 10:43am
aces:
I wonder whether an 18 year old facing execution can request alcohol as part of his last meal, or whether that would be denied on the grounds that the legal drinking age is 21 because those under 21 aren't considered sufficiently mature to handle the responsiblity of drinking alcohol. Just curious.

I think he'd be denied, but on grounds that alcohol is prohibited to all inmates regardless of age. In 1998, Javier Cruz, a 41-year-old Texas inmate, was denied beer at his last meal on policy grounds. (http://www.thememoryhole.org/deaths/texas-final-meals.htm, scroll to #159)
3.18.2006 11:36am
Chico's Bail Bonds (mail):
Abdul, you missed the point. The point is not that being denied money for abortion makes someone a slave. The point is that if the United States government spent its money to literally enslave Indians, Indians would have a colorable claim that they should be allowed to go to a court to stop it. Thus, if Indians could sue the government for spending money to enslave them, there at least some support for the idea that they could sue for spending money in other ways that are unconstitutional.

I disagree with the comments saying this is a question of "standing." Under any useful definition of the term "standing," Indians would have it. They would have an injury in fact: lack of money for abortion counseling. There would be causation: it is the result of the government policy. There would be redressability: a court could strike down the law prohibiting abortion counseling.

The real issue, as Justice Ginsburg identified, is whether the Constitution constrains the government outside our borders. For instance, would it violate due process and the First Amendment if the President ordered the execution of a Canadian citizen in Canada because the Canadian criticized his prescription drug plan? That sort of thing is the issue.

Obviously, there may be some legally relevant differences between arbitrary killing and how we spend our tax dollars on abortion counseling. But it is not as big a slam dunk as DB makes it out to be. There is a good argument that the Constitution constrains the government wherever it acts.
3.18.2006 12:03pm
Cornellian (mail):
I did not read the actual article about Judge Parker, but unless I'm mistaken, no where in Appellate Attorney's post does he mention that Judge Parker is not to following the law.

I was going by an article I read recently at law.com which dealt with the same story, but in more detail. If I recall correctly, Justice Parker is quoted in that article as stating that oath of office for a judges means the judge is free to disregard Supreme Court decisions that he considers to be wrong. I believe his term was "obviously wrong."

Now if he just wants to gripe about the state of the law, of course he is free to do that like everyone else. In fact I'd like to see him do it via comments on Volokh Conspiracy, the more the merrier subject to the usual ethical considerations about not being seen to have pre-judged cases that may come before him. But I read the article as stating that he considered that state court judges were free to ignore Supreme Court rulings, a position that is completely, totally wrong. It may be that the Appellate Attorney post you were referring do doesn't have the same quote.
3.18.2006 12:14pm
Dick King:

I wonder whether an 18 year old facing execution can request alcohol as part of his last meal, or whether that would be denied on the grounds that the legal drinking age is 21 because those under 21 aren't considered sufficiently mature to handle the responsiblity of drinking alcohol. Just curious.


The age in question is the age at commission of the crime, where the legality of alcohol at the last meal would be determined by the time of execution, generally a full decade later. People who commit capital crimes at age 17 would get executed in their late twenties or early thirties.

-dk
3.18.2006 12:18pm
Dave Hardy (mail) (www):
I suppose the core issue is a decision, made within the US by the government, which takes effect in a foreign country.

There was a Supremes case on standing, during my time at Interior -- Sierra Club v. Lujan, I believe -- that might have touched on the issue. It was a suit under the Endangered Species Act that challenged agency decisions involving (inter alia, and if my memory is correct) building a dam overseas, with alleged impact on species there.

(The decision turned on the fact that Sierra Club sued the wrong defendant -- Fish and Wildlife Service, rather than the agencies building the dam -- but it may have some commentary on the idea of suing a US agency for a decision here that impacts matters overseas).
3.18.2006 12:24pm
frankcross (mail):
There's a lot of sleight of hand in this post, let's break it down


Indian plaintiffs (that is, residents and citizens of India) should have the right to go to U.S. courts and have them tell Congress how to spend U.S. taxpayers' money? The Supreme Court should rely on a "Convention" that the U.S. hasn't ratified? The meaning of the Fourteenth Amendment should be determined, in part, by "Conventions" ratified by such paragons of equality as Cuba, Libya, Syria, Saudi Arabia, Burundi, Burkina Faso, Chad, China, Kazakhstan, Vietnam, and so on, which therefore represent "international understanding"?


As for the Indian plaintiffs, their citizenship standing is conflated with the issue of courts telling Congress how to spend money. Perhaps one objects to the courts directing spending, if so, it shouldn't matter whether the plaintiffs were Indian or American. If not, it is simply a matter of enforcing the First Amendment and the spending issue is a red herring. The status of the plaintiffs is irrelevant, because it is a US court making the decision. Just hiding the ball, I think.

As to the unratified convention, there's a suble shift from Ginsburg's "looked to" to Bernstein's "rely on" which is a pretty big difference, insofar as the former is analogous to a court's law review reference as persuasive, while the latter is analogous to a controlling precedent.

As to the conventions generally, this is an obvious logical fallacy. The validity of a point cannot be undermined by its subscribers. Just because Hitler loved animals doesn't mean that's a Nazi practice. Moreover, the list is obviously selectively misleading, because it cites only the dubious ratifiers, not all the advanced countries (like the US ratification of the first convention).
3.18.2006 12:32pm
Guest64:
I generally do no more than lurk here. From this comments thread, however, it is clear that the commenter's do not quite have a grasp on the issues in play re: citing foreign laws in American courts. I have included a link to a helpful "primer"; I would recommend viewing the first two links listed after the jump, the first of which is a debate between Justices Breyer and Scalia on the issue, the second of which is a Scalia only speech which lays out the nuances of his postion.

3.18.2006 1:16pm
Guest64:
The link would be helpful...

3.18.2006 1:16pm
Bruce:
I agree we're not talking about the same thing Scalia is.
3.18.2006 2:28pm
SteveMG (mail):
Cornellian:
Apparently in Alabama they take an oath to uphold a version of the Constitution that doesn't contain the Supremacy clause or that vests the judicial power of the United States in the Supreme Court.

Apparently someone has been whispering sweet nothings in your ear. And I do mean nothing.

Chief Justice Moore was removed from the bench by the Alabama Supreme Court because he failed to abide by a Federal Court ruling calling for the removal of the Ten Commandments statue outside the Alabama Courthouse.

Every poll of the folks here (I'm writing from just outside of Mobile) showed that the overwhelming majority (70%+) supported his removal for failing to abide by the Federal court's judgement.

He is now a private citizen.

He is running for Governor, however. And will be soundly defeated.

SMG
3.18.2006 2:28pm
Appellate Attorney:
CORNELLIAN: "[Justice Parker] is not free to disregard a Supreme Court decision that he disagrees with for citing foreign law anymore than he's free to disregard a supreme court decision he disagrees with for any other reason."

"...I read the article as stating that he considered that state court judges were free to ignore Supreme Court rulings, a position that is completely, totally wrong."


Cornellian appears to share the same misconception of the nature of the law as the ACLU attorney who filed the complaint against Justice Parker. That misconception is the belief that a U.S. Supreme Court precedent in a case not before a judge is "law."

U.S. Supreme Court decisions are binding only on the parties in the case before them. This is what is known as "the law of the case." It is a confusion of categories to say that a decision in one case applies to another case not before the court, because by definition a "decision" or a "ruling" applies only to the particular case before the court when the decision or ruling is made.

Consequently, what the critics of Justice Parker actually mean when they claim he refuses to follow U.S. Supreme Court "decisions" is that he has stated he does not believe courts should follow "opinions" in other cases when they are based on foreign law.

If the judicial oath to uphold the Constitution (rather than, e.g., to follow the precedents of the U.S. Supreme Court) means anything, it must mean upholding the actual law of the the Constitution as written rather than merely going along with ever "evolving standards of decency" based on foreign law just because five U.S. Supreme Court justices claim these shifting standards are "law."

The Constitution does not grant the U.S. Supreme Court the authority to add to its own power any more than it grants the President or Congress the right to do so. Consequently, on questions of the nature and limits of the power of the U.S. Supreme Court, we can never rely on the Court's own declarations of its power in judicial opinions but instead must return to the text of the Constitution and, where there is a conflict between the text of the Constitution and the Court's self-proclaimed authority, the text must prevail.

The text of the Constitution does not grant the U.S. Supreme Court the right to create binding precedents; it only grants the Court supremacy in cases or controversies. Therefore, like it or not, binding precedent does not exist. Justice Parker is right.
3.18.2006 2:32pm
josh:
Anyone a lawyer on this thread?

Ever filed a brief in a state case in which the state you were litigating in had not the addressed the issue in the brief? Ever cite an opinion from another state? Of course, no one would agrue that the other state opinion is binding in your state, but it can provide guidance and be persuasive. Isn't that all that is happening with the supremes? Ginsberg, Kennedy, et al, don't cite foreign law when deciding OUR constitutional questions by saying they are bound by the foreign law. They just look at it as providing guidance and being persuasive. As in, "It is persuasive that using the death penalty against retarded people or children is cruel and unusual." We're not bound by a foreign country saying that, but it sure is persuasive!
3.18.2006 2:35pm
SG:
Josh,

I'm not a lawyer, but I find this topic interesting.

From a non-legal perspective, my concern is not that justices are looking to international law to help them resolve a constitutional question. It's that they've decided that the constitution doesn't support their desired outcome, so they must look elsewhere to justify their decision.

If 20 states, through popularly elected legistaltures, allow execution of minors or retarded people, it's hardly unusual punishment, and given that the death penalty is legal, it's not unconstitutionally cruel either. And given that the citizens of 20 different states have found this practice acceptable, it seems presumptuous to cite the fact that some other country disallows it as justification for overturning it. I don't believe that justices were wrestling with the meaning of our constitution and cast a wide net to help. Citing international law looks (to me) like post hoc rationalization.

That said, I'm not in favor of executing minors or the retarded. It seems to me that anyone who would be considered incompetent to serve on the jury for a given crime should not be considered maximally competent when being judged for the crime. But not everything bad is unconstituional, nor is everything good constitutional.
3.18.2006 4:49pm
margate (mail):
David,

You really want to laugh or cry?

Look at how the Burger-Rehnquist courts have massacred the 4th Amendent. Just compare the idea of a so-called "good faith" exception to what SCOTUS was saying in the late 19th century about illegal searches.

That generous loss of our freedom is something to cry about.
3.18.2006 4:51pm
Tom Tildrum:
How is citation to an unratified treaty different from citing to a bill that never made it to a floor vote in Congress, or a bill that was voted down?
3.18.2006 5:16pm
Appellate Attorney:
How is citation to an unratified treaty different from citing to a bill that never made it to a floor vote in Congress, or a bill that was voted down?

Good question. Each of these is designed to provide a fig-leaf appearance of authoritative covering of what is little more than the personal policy preferences of the judge(s).
3.18.2006 6:14pm
Kovarsky (mail):
Josh is halfway correct.

There is a difference in citing an unratified treaty as binding authority and citing it as an index of statutory meaning where that meaning is not clear.

People that reason from the premise that RBG is reaching out to grab unratified treaties to usurp a clear constitutional question. Well, it's not that clear - as the 30+ years of supreme court litigation on the matter suggests.

That being said, the case for the citation would be stronger if it were contemporaneous with the equal protection clause - in that situation, the argument that the treating is just contextual evidence of meaning would be far stronger (even scalia would let you do this - cf. he thinks its ok to look at legislative history to figure out what certain ambiguous words mean in context (does the term "vegetables" include a tomato in a statute regulating produce versus one regulating what you can throw at crappy bands).

By the way, and I'll first note expressly that this is not directed at David, but the "outrage" at international law citation as "results oriented" got deafening only after cultural conservatives got an unfavorable ruling in Lawrence. That selective outrage strikes me as, well, as disingenuous as the citation of international authority itself.
3.18.2006 6:20pm
Appellate Attorney:
"It is persuasive that using the death penalty against retarded people or children is cruel and unusual." We're not bound by a foreign country saying that, but it sure is persuasive!

Only if you start from the presupposition that it's okay to be persuaded to change the meaning of Constitutional language that had been understood as, and in fact meant, something different consistently for over 200 years. I personally consider such an approach to "interpretation" to be dishonest and presumptuous.

Ethics does not evolve, and it's the height of arrogance for a judge, even if he believes ethics evolves, to try and shape it according to his own will. Yet that's what happens in cases like Roper; the citations to foreign law are just after-the-fact rationalizations for imposing a personal political preference.
3.18.2006 6:24pm
Kovarsky (mail):
The selective outrage at or endorsement of methodology is also at work in the NSA case - all of a sudden the administration apologists are "pragmatists," the opposite of strict constructionists.
3.18.2006 6:28pm
SLS 1L:
Seems to me that insofar as the practices of other nations are going to be regarded as authority, there's nothing wrong with citing to a treaty to which the U.S. isn't a party. The Court would, of course, be making a serious mistake if it treated such a treaty as U.S. law. But e.g. if an unratified treaty contains provision X and U.S. law contains a similar provision Y, looking to how other courts have interpreted provision X is a perfectly reasonable thing to do in interpreting provision Y. State courts do essentially the same thing with their state laws and constitutions all the time.
3.18.2006 6:31pm
Kovarsky (mail):
Appellate Attorney,

Only if you start from the presupposition that it's okay to be persuaded to change the meaning of Constitutional language that had been understood as, and in fact meant, something different consistently for over 200 years. I personally consider such an approach to "interpretation" to be dishonest and presumptuous.

You're only kinda right here. Look at the C&U test itself - international norms are a prong of the test. Whether that's good or bad I don't want to get into, but it's there. It is therefore disingenuous in the extreme for people to attack Justices for applying international law to this subject matter, as it is part of the test that precedent tells them to apply. It is most certainly NOT the case that the justices are selectively going off the ranch in using that data on C&U punishment questions.
3.18.2006 6:33pm
Tom Tildrum:
There is a difference in citing an unratified treaty as binding authority and citing it as an index of statutory meaning where that meaning is not clear.

But wouldn't an unratified treaty weigh in the opposite direction in interpreting a statute? In other words, if the United States has declined to ratify treaty X, isn't the strongest possible interpretation of this fact that the US statute runs counter to treaty X? Or at least that the US statute does not include any elements of treaty X that are not found elsewhere in US law?
3.18.2006 6:35pm
Kovarsky (mail):
Tom,

I think it depends what proposition one is citing the treaty for. If it's just for the proposition that the international understanding of affirmative action is X, then I don't really see how our ratification of the treaty is more than 1/N% relevant (N being the number of countries in the world).

If, on the other hand, you're citing it for the proposition that some content of the treaty is self-operative (i.e. applies of its own force), then obviously a conscsious decision not to ratify is pretty damning evidence that Congress has rejected this view. Although it is worth pointing out that it's dangerous to read too much into this "implied rejection" argument. Congress may have had a whole host of reasons for rejecting the treaty, having nothing to do with the implicit interpretation of affirmative action.

Pleae consider this final paragraph the obligatory "but I'm not saying international law is always fair game" reminder, that I'm quite confident people will ignore in critiquing my position anyways.

Lee
3.18.2006 6:52pm
Appellate Attorney:
You're only kinda right here. Look at the C&U test itself - international norms are a prong of the test. Whether that's good or bad I don't want to get into, but it's there. It is therefore disingenuous in the extreme for people to attack Justices for applying international law to this subject matter, as it is part of the test that precedent tells them to apply. It is most certainly NOT the case that the justices are selectively going off the ranch in using that data on C&U punishment questions.

You refer to a court-created test as though it were some unavailable fate. It's not. Supreme courts at the state and federal level create, alter, and revoke such tests all the time. There is nothing binding about precedent -- either in the same court or from a higher court. Following precedent is very convenient and helpful for maintaining consistency in the laws, but there is no legal or ethical imperative for following a precedent (or a test in a precedent) when a careful review shows it to be erroneous or unjust.

It's the creation of any test with an international prong in the first place that is the main problem (interpretation of ratified treaties excluded of course); such a test is the expression of the political will; it is the going off the reservation selectively in some area of the Constitution.
3.18.2006 6:54pm
Appellate Attorney:
Correction: "unavoidable fate"
3.18.2006 6:56pm
Kovarsky (mail):
Appellate Attorney,

First of all, thanks for politely (or even inadvertantly) correcting my mixed metaphor - "off the reservation..." I always say "off the ranch."

I'm also an appellate attorney, and I know very well that stare decisis is not, in the favoured parlance, "an inexorable command." That being said, it's "pretty" binding, and that's all that's really necessary to my point. Of course the Supreme Court CAN undue its precedent, but - given the infrequency of undoing precedent - I'm not sure you can insinuate that Justices are "capricious" when they DECLINE to do so. They are certainly not being "selective" when they're applying a test that by most accounts they are required to apply.

As for this:

It's the creation of any test with an international prong in the first place that is the main problem (interpretation of ratified treaties excluded of course); such a test is the expression of the political will; it is the going off the reservation selectively in some area of the Constitution.

I've disclaimed this argument expressly - I don't want to get into whether the test was a good idea in the first place. My only point is that when subsequent courts apply that test - which REQUIRES them to look to international law - those judges, at that time, are not "going off the farm."

Lee
3.18.2006 7:13pm
Cornellian (mail):
Ethics does not evolve, and it's the height of arrogance for a judge, even if he believes ethics evolves, to try and shape it according to his own will. Yet that's what happens in cases like Roper; the citations to foreign law are just after-the-fact rationalizations for imposing a personal political preference.

Ethics don't evolve? So 170 years ago when slavery was considered acceptable, and religious conservatives of the day were arguing that the Bible endorsed slavery, they were right and we're wrong today? It's one thing to say that the Constitutional provision means a particular thing, quite another to say that ethics don't evolve.

Also, strictly speaking, the reference to whether other countries have the death penalty is not really a citation to foreign law, so much as foreign practice. I don't think it's a good idea in most cases, and I'll be happy to toss it both when Ginsburg does it and when Scalia does it, but it's not quite the same as citing a foreign decision for the persuasiveness of its reasoning.
3.18.2006 9:43pm
Kovarsky (mail):
If modern chemical compounds of a certain fixed toxicity and half-life cause a subject to reawaken for the painful mortal twitch of his execution, the i guess that just doesn't matter and shouldn't qualify as cruel and unusual punishment because the framers didn't append the constitution with the periodic table.

Cruel and Unusual punishment jurisprudence is hardly a picture of clarity, but the idea that the best way to adjudicate the 8th is to lock up what the framers considered cruel 200 years ago is somewhat dishonest, as it is fairly clear that the framers did not intend that provision to be interpreted statically.
3.18.2006 9:54pm
212 (mail):

"Indian plaintiffs (that is, residents and citizens of India) should have the right to go to U.S. courts and have them tell Congress how to spend U.S. taxpayers' money?"


This reminds of the hubbub about (horror-of-horrors!) some Justice or other actually using "the internet" to research the cases for their opinions. She mainly seems to be saying that when the constitution talks about "Congress shall make no law" the limitation placed on the sovereign does seem to include any exceptions that make it dependent on the citizenship or location of the speaker. The textualists among you should rejoice at this.


The role of international law in US

Justice Ginsberg seems to be talking about this in the context of affirmative action. To some extent, this perception that International Law is a huge problem seem to be, at least in part, a reaction of conservatives to the new ease the UN forum has allowed so-called "instant custom" to develop. A real customary international law argument isn't about pointing to symbolic treaties so much as investigating actual laws of every country around the world.

Simplistic textualism (ala Justice Black) may be tempting, but not if you read closely enough. Although only "Treaties" might be mentioned as being the "supreme law of the land" (and thus binding on the states), that is not the end of the question. The Law of Nations is found in the constitution, as a basis of Congressional power, just like the 14th amendment.

There is also an originalist argument in favor of finding a constitutional endorsement of customary international law. This would look back to the implications of sovereignty. When establishing our country, being bound by the "Law of Nations" was a desirable thing. An important part of throwing off the Crown was standing up as England's equal, with all the responsibilities that entailed. (This is an argument by promoted by Prof. Carlos Vasquez, I believe.)


Evolving Standards

Unlike the 7th amendment, there is no reference to "preserving" the law of nations as they were at the time of the adoption. In fact, the specific empowerment of the Congress to define the Law of Nations indicates an understanding that these are evolving standards.

The Congress is clearly granted the power to initiate the evolution of the law of nations international standards by the enumerated power to "define and punish... Offences against the law of nations." The more controversial question is the extent of any binding effect international customs might have on the executive, who gains his so-called Foreign Affairs power from the "receiving ambassadors" line, and nothing so specific as the power to "define and punish... the law of nations." (Note topic anyone?)


International Law and the Supremacy Clause

The Law of Nations underlying the sovereignty of the new country, like treaties, would be "the supreme law of the land." There's a long line of cases that show that this word in the supremacy clause is not limited to treaties that are formally ratified. Anyway, like treaties, the Law of Nations would stand roughly on the same level of supremacy as federal statutes: inferior to the constitution and subsequent statutes, but superior to the law of the States.

Also like treaties, the Law of Nations is not necessarily "self-executiing" as far as causes of action against the United States go. Unlike Congressional power based on international agreements, even a hardcore textualist must admit that the Congress does not have to bother getting a supermajority of the States (originally, Senators were representatives of their State governments) or even prior Presidential initiative in order to make laws to enforce the "Law of Nations."


Application

Thus, if there were a clear customary international law that the death penalty should not be inflicted on minor-offenders (say, if not only most of our own States, but also every country in the world with the exception of Sudan — yeah the "Dafur" Sudan — had banned the practice), the States would not be free to violate that prohibition, since the practice itself violates the object and purpose of the norm.

Customary international law is relevant to the affirmative actions context because signing those treaties, even without ratification meant that the United States was not a persistent objector to its contents, which would make us exempt from it if they became customary international norms. If the contents of a treaty were later to become "customary international law" the Laws of the United States would have a constitutional basis for laws promoting them.

In government-supported-school admissions context, the ability to use corrective preferences is the main question. Justice Ginsberg may be right in that, at the very least, these conventions (if accepted widely enough) may form a complementary source of constitutional legitimacy for affirmative action. While Ginberg's investigation of the international custom in question may not be rigorous enough (complain to her clerks), this is not an inappropriate issue for discussion in the conversation about the constitutional legitimacy of affirmative action.

The idea that international law is irrelevant to US law — especially the laws of the States — is both reactionary and simplistic.
3.18.2006 11:12pm
Josh_Jasper (mail):
I seem to recall the US activley engaging in fuding political groups (and by some accounts hit squads) in various foreign nations. Chile comes to mind.

U.S. officials ordered measures up to and including support for a potential coup to prevent Allende from taking office, although there are conflicting views as to whether the U.S. later pulled back from this position. That the U.S. planned a potential coup in Chile is evident in a secret cable from Thomas Karamessines, the CIA Deputy Director of Plans, to the Santiago CIA station, dated October 16, 1970, after the election but before Allende's inauguration. "It is firm and continuing policy that Allende be overthrown by a coup ... it is imperative that these actions be implemented clandestinely and securely so that the USG [United States Government] and American hand be well hidden" [Karamessines, 1970].

-Quoting from Wikipedia.
3.19.2006 12:22am
Appellate Attorney:
Ethics don't evolve? So 170 years ago when slavery was considered acceptable, and religious conservatives of the day were arguing that the Bible endorsed slavery, they were right and we're wrong today?

Of course not: If slavery is wrong now, then slavery was wrong then. If rape is wrong now, then rape was wrong then. If murder is wrong now, then murder was wrong then.

If ethics evolve there are no ethics, only rules and laws as tools to keep the masses in line while the more enlightened ignore then when they wish and can get away with it. If morality is relative, if it evolves, then moral standards, ethics, and religion are the opiate of the masses. Nothing more.
3.19.2006 7:46am
SLS 1L:
AA: What you originally said was:
Only if you start from the presupposition that it's okay to be persuaded to change the meaning of Constitutional language that had been understood as, and in fact meant, something different consistently for over 200 years. I personally consider such an approach to "interpretation" to be dishonest and presumptuous.

Ethics does not evolve, and it's the height of arrogance for a judge, even if he believes ethics evolves, to try and shape it according to his own will.
Your point was clearly that because ethics does not evolve, it's wrong for judges to change the law because we have a different idea about ethics today than we did 200 years ago. Pointing out that it was wrong then, just as now is a point that goes against originalist-style interpretation, not in its favor.
3.20.2006 12:04am