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Another U.N. Official Demanding Speech Restrictions, and Faulting Denmark for Protecting Free Speech Too Much:

Agora reports, with translations from Danish sources:

Saturday, March 18th Jyllands-Posten broke the story about an attack by UN special rapporteur [on racism and xenophobia] Doudou Diéne on Denmark. The report has yet to be released to the public in full, but it was leaked by the UN to press sources in Denmark....

Jyllands-Posten’s Excerpts (not available online):

Their [the Danish government's][the cartoon-reprinting newspapers'] uncompromising defense of a Freedom of Speech without limits or restrictions is not in accordance with the international rules which are based on a necessary balance between Freedom of Speech and Freedom of Religion, especially to combat calls for racial and religious hatred, and which all the member countries of UN have decided are the basic rules for Human Rights. This attitude shows an alarming lack of sensitivity and understanding of the religious conviction and deep emotions of the groups of society in question. Thus the newspapers strengthen the connection between Islam and Terrorism which arose after September 11th and which is the most important reason for Islamophobia being on the rise in the world at large and in their own countries.

From Jyllands-Posten’s article on the case, we learn that the government is accused of breaking its international obligations by not conforming with the following three articles in the UN Covenant on Civil and Political Rights:

Article 18, paragraph three:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Article 19, paragraph three:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
1. For respect of the rights or reputations of others;
2. For the protection of national security or of public order (ordre public), or of public health or morals.
Which limits certain rights in paragraph two:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Article 20, paragraph two:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Of course, last Fall the UN High Commissioner for Human Rights, Louise Arbour, said something similar: Arbour said that she "deplore[d] any statement or act showing a lack of respect towards other people's religion," and "appointed to UN experts in the areas of religious freedom and racism to investigate the matter." The High Commissioner's office has "asked Danish Prime Minister Anders Fogh Rasmussen for "an official explanation," including asking "the Rasmussen government to respond to the question, 'Do the caricatures insult or discredit?'" And the backdrop of earlier UN agency resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility" makes matters still worse.

It also reminds me of the danger posed by the recent movement supporting the use of international law to influence U.S. constitutional norms. As Prof. Peter Spiro, a supporter of the movement (and one of the leading U.S. international law scholars) has written, treaties can, in the long run, "insinuat[e] international law" that would create "a partial displacement of [U.S.] constitutional hegemony" — for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding." "In the short term," he argued, international norms would and should be "relevan[t] ... in domestic constitutional interpretation." And "[i]n the long run, [this tendency] may point to the Constitution's more complete subordination."

Spiro's article was both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run":

Constitutional rights "adjusted" by treaty norms are changed by them. The Constitution is read to conform with the treaty.

What's more, I've heard international law fans urge that U.S. constitutional decisionmaking should be informed not just by express statements in treaties that the U.S. has signed and ratified, but also by international practice outside treaties, by statements in treaties that the U.S. hasn't signed or hasn't ratified, and by actions of international bodies established pursuant to treaties that the U.S. has ratified. What U.N. commissions say and do may thus ultimately affect not just international politics, but the constitutional rights of Danes, Americans, and anyone else who has a broader view of free speech than the U.N. seems to endorse. Not a pretty prospect, it seems to me.

UPDATE: My post originally erroneously interpreted the "Their" in "Their uncompromising defense" as referring to Danish government officials; after looking at the full translation, I now realize that "Their" referred to the newspapers that reprinted the cartoons. I have corrected the post accordingly, striking out my original version and underlying the replacement. Nonetheless, the report does also criticize the Danish government — see the paragraphs following the one that contains the correction — so the overall tenor of my post is correct: It's just that the report criticizes not only the Danish government, but also the newspapers that reprinted the cartoons after the controversy erupted (when, in my view, the cartoons became even more newsworthy).

Related Posts (on one page):

  1. More from the UN Report Criticizing the Danish Government:
  2. Another U.N. Official Demanding Speech Restrictions, and Faulting Denmark for Protecting Free Speech Too Much:
KeithK (mail):
If treaties can override the Constitution, then that means that the president acting in concert with 67 Senators (or a smaller number, since ratification requires 2/3 of those preset) can do anything regardless of the will of the people, the House or the States. Taken to the extreme, what's to stop President Unethical from signing a treaty with Grenada that mandates the abolition of jury trials, for example? The extreme case is highly unlikely, but I don't want to take even a single step down that road.

Unless and until the people of the United States act through their representative to repeal the Constitution and give up national sovereignty, the Constitution is the highest law of the land.
3.21.2006 8:11pm
logicnazi (mail) (www):
Not only is this sort of excessive deference to religion a bad idea it just isn't logically possible.

What happens if me and my friends get together and start claiming to worship a god who believes deeply in free speech? Or more likely what if I insult muslims as part of an act of a christian faith, e.g., denounce them as misconstruing the bible or what have you. At best this deeply involves the government in deciding what is and what is not a religion or an appropriate religious belief.

In other words any attempt to allow the government to restrict speech in the name of religion not only strips us of our rights to speech but also of our rights to free exercise as it ultimately will require the government to distingush between the 'good' and 'bad' religious beliefs.

This being said I think your criticism of the use of international law in US constitutional interpretation isn't valid. Yes it is a good criticism of people who have this sort of super extreme belief of overriding constitutional hegemony but I suggest that the more reasonable advocates of the use of international law to inform constitutional scholarship don't see themselves as doing this at all.

In particular I think they would argue that they are actually doing just as the constitution requires by the same argument that the non-originalists make. Namely that the notion of judicial interpratation that existed during the founder's era and was anticipated in the constitution was broad and allowed the judge interpretive leeway, including such things as drawing from other sources.

I don't know if I agree with it but the argument could be made.
3.21.2006 8:20pm
Barbara Skolaut (mail):
Remind me again exactly why we allow the Useless Nitwits to contaminate U.S. soil and suck at our taxpayers' teat?
3.21.2006 8:22pm
The NJ Annuitant (mail):
Since a later statute can override a treaty , how can anybody make a good faith argument that a treaty trumps the Constitution? Utter and complete nonsense.
3.21.2006 8:37pm
Steve P. (mail):
Comparatively to what we spend, I'd rather have the UN sucking at "our taxpayers' teat" than President Bush. The difference is even starker when we consider what we actually pay on our dues.

On topic, that's pretty disturbing. Being 'sensitive' should be a nice thing, something culturally or morally preferred, but definitely not defined by law. In the very, very long term Prof. Spiro may have a point (as global opinions shift and perhaps come together). Insofar as the short term goes, perhaps international norms should be 'relevant' to the discussion (don't dismiss something out of hand), but definitely not 'guiding' or 'precedent-setting'. That would make sense to me, though I can see an argument that even 'relevant' is a slippery slope we'd do best to avoid.
3.21.2006 8:53pm
Steve:
What's more, I've heard international law fans urge that U.S. constitutional decisionmaking should be informed not just by express statements in treaties that the U.S. has signed and ratified, but also by international practice outside treaties, by statements in treaties that the U.S. hasn't signed or hasn't ratified, and by actions of international bodies established pursuant to treaties that the U.S. has ratified.

I really think you are being inappropriately dismissive of Judge Bork's view here. Or did you have a different commentator in mind who also claims that free speech rights should be informed by norms of international law and practice?
3.21.2006 9:36pm
Taimyoboi:
I wonder whether we would be that much closer to achieving Mr. Spiro's expectations had we signed and then ratified the ICC.

I recall a number of objections to the ICC on the basis that the ICC would essentially become a de facto appeals court above the U.S. Supreme Court.
3.21.2006 9:49pm
cirby (mail):
I think US law definitely should be "informed" by what other countries are doing.

Usually in the "oh, hell, let's not do that" sense.
3.21.2006 11:11pm
Larry Faria (mail):
We can always do what the dictators of the world always do: ignore the U.N. They have no enforcement powers anyway, and our veto in the Security council will stop even a censure motion. The U.N. is so corrupt and ineffectual that the only thing keeping it in business is a crystal-clear moment like that faced by the League of Nations, when its sanctions failed to stop Mussolini from invading Ethiopia, and Haile Selassie appeared in Geneva to ask them when they were going to give him back his country.
3.21.2006 11:19pm
Brian Macker (mail) (www):
Article 20, paragraph two:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.


I'm no lawyer but that requirement seems to bar the teaching of the Quran as non-fiction. The Quran contains all of the above. Only if it is sold as a work of fiction can one be free from the charge of advocating the vile acts and slanders it contains. When is the U.N. going to start locking up the Imams?
3.21.2006 11:34pm
Brian G (mail) (www):
"Constitutional hegemony?" That is brilliant! Where can I go to school to learn such things?

Seriously, the Constitution is the Supreme law of the land. By nature it is supposed to be hegemonic. If those scholars want to adopt international norms, then perhaps we should have Saudi abortion laws, Palestinian anti-homosexual laws, and Chinese religious freedom. Uh, no thanks to European laws every bit as much as the disgraceful laws I mentioned.
3.21.2006 11:37pm
quaker:
"The eagle never lost so much time, as when he submitted to learn of the crow." -Wm. Blake, The Marriage of Heaven and Hell
3.22.2006 12:16am
Bit (mail):
There's nothing wrong with adapting international laws. So long as those laws are Constitutional, that is. It's an important distinction.

As far as our own Supreme Court, ask Ginsburg what she thinks.
3.22.2006 12:21am
Matt Corbett (mail) (www):
Forget for the moment whether or not it's a good idea for international norms to "inform" U.S. Constitution, I want to know if it's even legal for any Government official to act in such a way. Article VI of the Constitution has this to say:

"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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

In my reading, this says 2 things
1) That U.S. Constitutional norms can be changed by entering into a treaty- i.e. KiethK's worry is exactly right- the U.S. could enter into a treaty with Grenada ending trial-by-jury, and the U.S. legal system would be bound to follow it.

This has been done before- the Constitution empowers Congress to grant letters of marque and reprisal, but issueing such letters is banned by international treaty to which the we are a party.

However, to the best of my knowledge it is traditional for the Senate to ratify treaties with reservations ensuring that U.S. Constitutional processes (particularly individual rights protected by the Bill of Rights) maintain their supremacy over the treaties into which we enter.

2)Anyone who holds office at either the federal or state level is bound by oath to hold the U.S. Constitution supreme. That is, unless we have enterred a treaty that does change Constitutional understandings (and the Senate has not ratified it with reservations that this not happen), no official has any legal power whatsoever to act in such a regard, or that doing so constitutes breaking the oath of office (and thus constitutes perjury). More to the point, judges who cite treaties to which we are party but with reservations, treaties to which we are not a party, or foreign laws as binding are exceeding their constitional mandate.


As far as I see it, the Senate is the one and only gatekeeper between foreign law and Constitutional practices.
3.22.2006 12:27am
ic (mail):
Pretty soon Sharia will trump our Constitution.
3.22.2006 12:42am
scepticalrepub:
I think a tremendous amount of mischief has been created by WestLaw and others paying the Supreme Court Justices to go on these summer-long junkets to Europe. If Ms. Ginsburg or Mr. Breyer were not so worried about what the smart set in Geneva might say next August a lot of this foreign citation might be cut back.
3.22.2006 12:59am
Matt22191 (mail):
Matt,

You said, "In my reading, this says 2 things
1) That U.S. Constitutional norms can be changed by entering into a treaty- i.e. KiethK's worry is exactly right- the U.S. could enter into a treaty with Grenada ending trial-by-jury, and the U.S. legal system would be bound to follow it."

I take it that you're getting that from this language:

"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, , any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

But what the language I just quoted says to me is that the "supreme Law of the Land" is binding upon the States, and there's nothing the States can do about it. And what does that supreme Law of the Land consist of? The Constitution, federal laws and treaties, that's what! But I see nothing in that language that indicates that "Treaties made, or which shall be made, under the Authority of the United States" are superior to the Constitution, or even the "Laws of the United States." Care to elaborate on your reading?

I also don't agree that a treaty obligation to not issue letters of marque and reprisal is an example of a treaty trumping the Constitution. The Constitution says that Congress may grant letters, not that it must. If the Senate ratifies a treaty that says Congress won't do so, and Congress thereafter declines to issue such letters out of respect for that treaty, that's nothing more than Congress voluntarily refraining from exercising a discretionary power. If Congress were to later change its mind and attempt to issue such letters, and a court were to attempt to order it not to do so (an unlikely eventuality, it seems to me), and Congress were to obey the court's injunction (hah!), that would be another matter. But that possibility doesn't worry me, because the political question doctrine would seem to virtually guarantee that no court with a sane judge would try to pull such a stunt and, if one did, it would have little hope of enforcing the injunction.
3.22.2006 1:19am
Jamesaust (mail):
Well, a couple things:
1. The UCCPR is aspirational. Review the preamble: signatories have a duty "...to strive for the promotion and observance of the rights recognized in the present Covenant..." How hard? Well, Art. 1: "All peoples have the right of self-determination." Really? Do tell the Kurds. Ring the bells for the Uighurs in China. Signing the UCCPR means only that a State agrees in the principle, broadly stated. Does the U.S. oppose religious hatred? Sure. Does the U.S. Constitution allow restriction on absolute freedom of speach? Absolutely. Does this mean the U.S. is obligated to criminal religiously-oriented "hate" speech. No.
2. The UCCPR as approved by the Senate carries this restriction: "Nothing in the Covenant requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States." Of course, the potential trick is on issues that the Constitution does not forbid but are not necessarily the democratic will. For example, the execution of minors. UCCPR Art. 6.5 seems to prohibit this. Because the U.S. Constitution does not require the execution of minors, and treaties are interpreted for federal States as extending to all of their constituent parts, does this mean that the federal government has a legal duty to take steps to prevent execution of minors by any of the various states? [This is purely an academic example; the U.S. entered a reservation objecting to this provision and it does not bind the U.S.]
3. "international practice outside treaties" I assume the reference is to customary international law. Practices become CIL when all (or virtually all) States conform their actual practice to a particular rule and do not 'state' to the contrary that their actions do not reflect a recognized duty to do so. The only likely circumstance such a method of forming international law that would conflict with a Constitutional provision would be that the U.S. believes for a certain period in some rule (and every other State does too) but then later thinks better of it. In practice, this is quite a limited means of forming international law on much beyond basic ideals and treaty-interpretation conventions, which is why most international law is now formed by treaty.
4. My understanding is that the Danish Constitution expressly and broadly guarantees a right to publish. So, I suspect that Denmark has made a reservation similar to that of the U.S. regarding this issue. If not, then keep in mind, Denmark has a duty only "to strive" to implement the UCCPR. I would recommend that the Danish PM answer, in that case, that Denmark will continue to strive to these ends and expects to achieve full implementation about the same time that Saudi Arabia does.
3.22.2006 2:06am
Matt Corbett (mail) (www):
I'm not trying to say that treaties are superior to the Constitution, but that they follow the same logical rule as an amendment- if you amend the Constitution, the amendment supercedes anything explicitly to the contrary. When you make a change, like for example direct election of Senators, the old system and the new sytem don't coexist. The new one take precedence. Likewise, if we enterred a treaty that mandated, say, that heads of government be elected by plebiscite, that would force us to scrap the electoral college.

Of course the Senate can withdraw us from any treaty we're currently party to, so the example of letters of marque and reprisal would likely be moot. As a point of legality though, we would actualy have to withdraw from the treaty before we could issue them. The Constution says Congress may, but a treaty we've enterred says that it may not. Must is irrelevant. The two are in direct contraditcion, and the most recent has to be system we operate under.

I say this not because I support importing foreign legal understandings into the U.S. Quite the opposite in fact (I did after all, pretty clearly imply that judges who cite treaties that don't bind us as binding have committed at minimum perjury, by breaking their oath of office). My point is that there is a perfectly Constitutional mechanism for doing so, and that if we do want to keep our traditional understandings of freedom of speech and the like, we need to read what we sign, and that the Senate's tradition of ratifying treatties with reservations such that the treaty does not change our Constitutional practice must be preserved.

Personally, I doubt the founders forsaw that international institutions would become what they are today, or that countries would be in the business of creating treaties that bound internal conduct. The result is that there is a terribly dangerous loophole for Constitutional change we need to mind.
3.22.2006 2:10am
Andy:
It's hard to know where to begin when you talk about the sheer idiocy of the UN, but I'll go with this statement:


Thus the newspapers strengthen the connection between Islam and Terrorism which arose after September 11th


So this connection arose after 9/11? How about on 9/11? Or how about after the 1972 Winter Olympics? But apparently it's not the actions of Islamists that help form this connection: it's the publication of cartoons.

Is there a more immoral and unethical organization in the world than the UN? This isn't even a rhetorical question: I've racked my brains trying to come up with one and I can't.

I think it's about time to look into buying that compound in Montana...
3.22.2006 2:27am
Michael B (mail):
In a similar Eyes Wide Shut/Multi-Culti Sedative vein, David Kennedy Houck. Or on a more panoramic scale, in book format, Mary Habeck.
3.22.2006 3:10am
Ryan Waxx (mail):
If there's anything on this earth that should have americans rioting in the streets, it's the idea that the Bill of Rights can be or should be overridden by the U.N.

I doubt if anybody who wishes worldwide U.N. law will be so blatant, however. Liberty is best stolen slowly, over time.

It will start with people arguing that we should 'respect' U.N. regulations and get our ideas from international 'law'. It will start with people like Ruth Ginsburg.
3.22.2006 4:20am
Bleu:
The argument for free speech to be limited to take into account religious sensitivities can be extended to ask for the banning of many religious texts including large tracts of the Koran and the Bible. Both the Koran and the Bible condemn idolatry and say many other unpleasant things about idolators. This is directly insulting to the many millions of polytheists around the world. The Koran goes further by declaring that members of other religions are subordinate and should not be treated on an equal footing with muslims (at least this is an interpretation prevalent in most muslim majority countries). Consequently, a rational application of such free speech boundaries would require the banning of both the Koran and the Bible.

This argument is only to point out the inherent stupidity of such free speech restrictions. Such restrictions are furthermore extremely dangerous, since given that it is almost impossible to apply them in a rational manner, they would be applied only in situations where a very vocal group of people asks for their implementation. As a result, such a restriction would suppress the rights of the minority opinion -something which is crucial to an atmosphere of free and reasoned discourse.
3.22.2006 5:41am
Mongoose388:
Two questions.
1) Will the UN bureaucrat please explain how you can have Freedom of Speech with limits or restrictions ? 2) Will Justice Ginsbug please defend using international law as a reference for making constitutional decisions in light of this UN position?
3.22.2006 7:37am
Public_Defender:
Yes, U.S. judicial decision-making should be informed by foreign law. But there is a huge difference between i>informed by and determined by. Courts routinely dismiss persuasive authority after considering it.

On factor courts must look at when examining persuasive authority os whether the system they are looking to is ideologically in sync with their own. For example, when deciding whether to cite to court decisions from another state on self-defense, I would first look to see if the jurisdiction took the same general policy position as my state (degree of risk needed and force allowed) before deciding whether the court decisions were relevant.

It appears that the convention professor Volokh cites takes a completely different approach to free speech than the First Amendment, so it would be fair to disregard it.

I also think the Eighth Amendment is a little different, because it bans "unusual" punishment. The word "unusual" at least arguably invites comparisons. For example, if a small handful of U.S. states are the only democratic governments in the world that impose the death penalty on kids and/or the mentally retarded, that seems pretty "unusual" to me.
3.22.2006 7:55am
AppSocRes (mail):
I agree with Matt Corbett. The clear reading of the Constitution is that the Constitution and treaties are the supreme law of the land. Only the Senate stands between the rest of the world and our Common Law freedoms. A straightforward reading of the Constitution also suggests that the Senate and House together can restrict the Supreme Court from making any rulings based on law outside the Common Law and US tradition. Ultimately we have to depend on the citizenry being jealous enough of their rights and informed enough to keep "internationalists" out of positions of authority. Menken once said words to the effect that democracy is that form of government where the people get what they ask for---good and hard! That insight probably holds here.
3.22.2006 8:52am
ak47pundit (www):
If "international law fans urge that U.S. constitutional decisionmaking should be informed not just by express statements in treaties that the U.S. has signed and ratified, but also by international practice outside treaties", can we then also act in accordance with international norms then in ignoring treaties?

For example of the many nations that signed Kyoto, darn few have actually met their treaty commitments and some seem to blithely ignore them (cough Canada cough) while berating the USA for failing to sign the treaty.
3.22.2006 8:57am
johnt (mail):
Maybe there's hope. Maybe the admirers of international law will come to disregard that as much as they disregard the Constitution. On the other hand they may just fall back on personal will and whatever state their digestive system is in at a given moment. It should be remembered that said admirers see themselves as players and important cogs, top dogs as it were, in this global village, mish mash, pin the tail on the donkey, school of, I guess, law. The world beckons, who are liberals to refuse the call of duty and reformation
3.22.2006 8:58am
Robert Lyman (mail):
Let's see. The Constitution, Laws, and Treaties are the "Supreme law of the land."

Some commenters have asserted that this means treaties can defeat the Constitution.

Well, then, why can't "laws" defeat the constitution? If judicial review of Congressional acts is legitimate, and thus the Constitution can defeat mere laws, then why can't it defeat mere treaties?
3.22.2006 9:54am
The Ace (mail):

Constitutional rights "adjusted" by treaty norms are changed by them. The Constitution is read to conform with the treaty.


I think it's safe to say Justice Ginsburg endorses this idea without much reservation, and she certainly doesn't like being criticized for it.

Those sentences give the game away in my opinion, as there are many, many "citizens of the world" in America and certainly in government who embrace this concept.

Congress simply could address this matter, but probably won't as of course the Democratic traitor party would not go along.

I also find it interesting that those who were in the thread the other week mocking critics of these ideas aren't here doing the same...
3.22.2006 9:59am
John Burgess (mail) (www):
Brian G: Actually, Saudi laws on abortion are more liberal than in the US. They are available on demand, no questions asked.

There's social pressure against it in some regards, but it's not a legal issue.
3.22.2006 10:01am
Matt Corbett (mail) (www):
Robert,

Article VI doesn't state that laws defeat the constitution- it states, "...the Laws of the United States which shall be made in Pursuance [of the Constitution]" are the supreme law of the land. In other words, Federal laws that aren't Constitutional are not the supreme law of the land. Hence the legitimacy of judicial review. The language regarding treaties makes no such qualifications, only that the treaties me made "under the Authority of the United States", i.e. ratified by the Senate. I emphasize this to show how dangerous this can be considering the drift of international law these days.
3.22.2006 10:07am
Rusty (mail):
Thank god for George Mason. I just knew that 2nd amendment was in there for some reason.
3.22.2006 10:19am
Mike BUSL07 (mail):
Does anyone know if Ginsburg's views on foreign authority came out during the confirmation hearings? Did anyone even think about it back then? I hope that in the future, a justice that expresses support for subordinating the Constitution, in any degree, to foreign law, will be promptly denied confirmation.
3.22.2006 10:50am
PeterII (mail):
4. My understanding is that the Danish Constitution expressly and broadly guarantees a right to publish. So, I suspect that Denmark has made a reservation
similar to that of the U.S.

No, we haven't. The prevailing interpretation of the Danish Constitution article 77 provides that the constitutional limitation extends only to a prohibition on prior restraints and other prepublication measures.
For information on the state of free speech in Denmark read.
http://www.jihadwatch.org/dhimmiwatch/archives/010638.php
3.22.2006 10:53am
Kristopher (mail):
The article that handles treaties is just that ... an article of the original constitution.

Amendments ALWAYS take presedence over the text in the original document ... otherwise there is no point to making amendments.

The BoR trumps foriegn treaties, until the BoR itself is later amended.
3.22.2006 11:22am
Dave Hardy (mail) (www):
"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, , any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

(1) I should think that in event of conflict between the above, the sequence of listing is dispostive. The constitution trumps anything. Laws trump treaties (a statute can abrogate a treaty anytime -- just ask the Indians, or read US v. Dion, which held the Eagle Protection Act abrogated a treaty by implication).

(2) the reference to "under authority of the US" was meant to continue in effect the treaties made under the Articles of Confederation, which had not been made pursuant to the constitution because they antedated it.
3.22.2006 11:28am
Jeff R.:
Doesn't a lot depend on how you parse Article VI?

Does "of any state" modify "Constitution and Laws" or merely "Laws" [in the latter case meaning that the constitution in question is the Federal one.]?

Has any court ruled on this dangling modifier?
3.22.2006 11:34am
ralph:
It does not make any sense that the House and Senate, acting together, with the concurrence of the President, cannot amend the Constitution without concurrence of the States, but the President and the Senate, in ratifying a Treaty with another country, could do so. This is illogical on its face, and I don't see how any judge could make such an argument.
3.22.2006 11:37am
Matt22191 (mail):
Matt (C.),

First, while you may believe that the legitimacy of judicial review hinges upon the clause, "the Laws of the United States which shall be made in Pursuance [of the Constitution]," my reading of Marbury v. Madison suggests that the court was relying on a more fundamental principle, and would have reached the same result even absent the language you cite:

"It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

Second, while the Constitution and (valid) treaties may, collectively, be the supreme law of the land, nothing in the Constitution mandates that, when the two conflict, treaties must prevail. Your conclusion that "[when t]he two are in direct contraditcion . . . the most recent has to be system we operate under" is true only if the most recent (treaty) is at least equal in authority to the Constitution. But to say that the Constitution and treaties are the supreme law of the land vis-a-vis all other sources of law is to say nothing about the relationship between the Constitution and treaties.

To the extent that you want to rely on the explicit language of Article IV, I think it can more plausibly be read to mandate just the opposite result. The authority of the United States is created and defined -- and circumscribed -- by the Constitution, including the Bill of Rights. And only "Treaties made, or which shall be made, under the Authority of the United States" are the supreme law of the land. One could very naturally conclude that a treaty that conflicts with the Constitution is ultra vires and thus not part of the Supreme law of the land.

I'm not suggesting that you're a bad guy for thinking as you do. I just don't agree with your interpretation of the Constitution on this issue -- and I also think it's dangerous, even if well-intentioned.
3.22.2006 11:48am
David Timothy Beito (mail) (www):
Eugene Volokh deserves praise for defending the "constitutional rights of Danes" to publish and read controversial cartoons. There have been many, many, blogs on this issue at VC.

Unfortunately, not a single blog has appeared about a far more serious case in Afghanistan. The democratic government there (much praised at VC as a U.S. success story) has filed capital charges against a man who converted to Christianity.

Meanwhile, our troops are dying to preserve this same democratic government. Here is the story. Perhaps somebody would like to give the case some publicity since such action might help save this man's life.
3.22.2006 12:29pm
Observer (mail):
I wonder if the advocates of using foreign laws and customs as a means to interpret US Constititutional guarantees have really thought this through.

Consider the exclusionary rule. This is a judge-made rule intended to give force to the protections of the 4th and 5th Amendments by prohibiting the introduction into evidence at criminal trials of confessions and physical evidence taken or seized unconstitutionally. If the Court were to reconsider whether it still makes sense to have such a judge-made rule, would it be appropriate to consider the fact that no other nation has a similar rule or believes the exclusionary rule is necessary to protect the civil liberties and rights of their citizens? Would Justice Ginsburg approve of such analysis?

I think the anwer is obviously not. What she is arguing for (as Justice Scalia and others have pointed out) is the ability to use foreign law and practice on a purely ad hoc basis to support whatever policy judgments she favors at any given point in time. This is, to put it mildly, unprincipled.
3.22.2006 1:14pm
Matt Corbett (mail) (www):
Matt,

I certainly jope you're right. I'm basing what I've said purely from the text of Article VI (as a side note, I'm not basing the justification for judicial review solely on Article VI. There are plenty of other justifications, and I was merely pointing out one of them). I'm not a lawyer and am thus unfamiliar with any cases where this issue has come up. Dave Hardy's mention of courts holding that statutes can abrogate treaties would support your view (although this does result in an odd assymetrical situaiton where it takes a supermajority of the Senate to ratify a treaty, but a simple majority of both houses of Congress to nullify it).

You said "...is true only if the most recent (treaty) is at least equal in authority to the Constitution." My point is that Article VI says precisely this. Dave Hardy suggests that the ordering suggests a heirarchy of Constitution > Federal Statutes > Treaties, but I think that reading of it that way makes hash of the meaning of "supreme law of the land." If statutes always trump treaties, then it makes no sense to include treaties as "supreme law of the land" if statutes are more supreme than them.

The other thing that did occur to me, though, is the wording of the First Amendment. If laws and treaties are equally the supreme law of the land, then "Congress shall make no law..." is equivalent to saying "The Senate shall not ratify any treaty", since either would equally alter the supreme law of the land. Since the First Amendment is an amendment, it supercedes the previous text granting powers to Congress and the Senate, i.e it would limit the Senate's power to ratify treaties in the same way it limits Congress's power to pass laws. So the hypothetical of a treaty limiting free speech would be moot, as the Senate would not be empowered to ratify any such treaty. I find this reading reassuring, as I don't like the idea of First Amendment rights being subject to the whim of 67 senatorial gasbags anymore than you do. The potential problems of this reading are twofold: 1)It would logically extend judicial review to the text of any treaty we sign, which can't possibly be the founders' intent, and 2)it doesn't necessarily protect other provisions that don't have the "Congress shall pass no law.." wording.

Like I said, I don't like the idea of treaties altering Constitutional practice (I wholeheartedly agree that this would be dangerous), and I'm making my arguments in the hope they get shot down.
3.22.2006 1:36pm
Wally (mail) (www):
I noticed our President hasn't exactly rushed to the defense of the Danes and like a lot of people, kowtowed to the intimidation of muslims. As though a confrontation with the forces of reaction could be forestalled by feeding them to the alligators. Here was a divine opportunity to draw the line in the sand. Watch it pass....
3.22.2006 2:28pm
Wudndux (mail):
"..."the hypothetical of a treaty limiting free speech would be moot, as the Senate would not be empowered to ratify any such treaty.

Exactly. The President and Congress have only those powers delegated to them by the states via the Constitution. The states did not delegate the power to unilaterally amend the Constitution nor to subordinate the Constitution to foreign laws. Therefore treaties which subordinate the Constitution are unconstitutional, just as are laws which usurp powers reserved to the states and to the people.

The history of the 20th century to the contrary, of course.
3.22.2006 2:51pm
miggle's ghost (mail):
And this well-edumucated man went from Harvard to Virginia and then headed to my alma mater, the Lumpkin Law School of the University of Georgia, to spew this nonsense? I will begin to take the folk seriously when they explain how Libya, Cuba, and other "enlightened" places can say that they believe in respect for rights whilst tossing writers, teachers, librarians, journalists (a dying breed?) into dungeons. I also want Spiro to look at the cartoons at MEMRI and tell me how those things pass when the Danish cartoons do not.
Maybe it is because we Jews understand that blowing up buildings when we see insulting cartoons is inappropriate. But maybe I'll just tear up my check to the school and send the pieces to Spiro as performance art.
3.22.2006 6:20pm
Robert Lyman (mail):
Dave Hardy suggests that the ordering suggests a heirarchy of Constitution > Federal Statutes > Treaties, but I think that reading of it that way makes hash of the meaning of "supreme law of the land."

Not if by "supreme law" you mean "higher than state laws and constitutions."

As for statutes "abrogating" treaties, I don't think that's quite accurate. Treaties are really about the relationship of our government to others and usually don't have direct domestic effects. Most of them are not "self-executing," that is, they require domestic legislation to implement them. So we sign an extradition treaty that says "we will extradite under X conditions." But that, by itself, doesn't give law enforcement the authority to arrest and expel people. Instead, Congress has to pass laws that say something like "US marshals can arrest people subject to a valid extradition request."

So Congress can't abrogate the treaty itself, but it can refuse to pass the necessary domestic legislation to implement it. That may be impolite and lead to all sorts of nasty notes from foreign diplomats, but there is no judicial remedy.
3.22.2006 10:34pm
Robert Lyman (mail):
Something else occurs to me, 12 hours later:

Since most treaties are not by themselves judicially enforcable, a hypothetical treaty abolishing jury trials or free speech would probably require domestic legislation to implement it just like an extradition treaty.

And naturally such legislation would be unconstitutional.
3.23.2006 10:37am
Jamesaust (mail):
There is one example of treaties overturning existing constitutional structures:

Power over wildlife had been viewed as a state prerogative - naturae ferae, and all that. In Geer v. Conn. (1896) the SC held that a state could forbid export of game taken within the state without violating the Commerce Clause. The Court relied upon the principle that states "owned" the wildlife.

But after the U.S. signed the Migratory Bird Treaty with Canada (actually, the British crown), Congress passed the Migratory Bird Treaty Act to implement the Treaty. Missouri sued and in Missouri v. Holland (1920) the SC held for the U.S.

Courts soon after switched to an expanded definition of the Commerce Clause to chip away at any federal limitations until the SC in Hughes v. Okla. (1979) reversed Geer, noting the whittling down of traditional state sovereignty over wildlife "to the point of virtual extinction."

While quite an isolated topic, it is a good example of a treaty exception that begins narrowly but alters public understanding of constitutional arrangements to the point it becomes easy to disregard them altogether.
3.24.2006 1:14am