Dear Colleague:

As we wait for President Bush to nominate a pro-life replacement for
retiring Supreme Court Justice Sandra Day O'Connor and possibly Chief
Justice William Rehnquist, we hear a lot about the need for a strict
constructionist, that is, someone who will not read their own personal
prejudices (in favor of abortion, for instance) into the Constitution.
But there is another danger that must be avoided as well, that of using
the foreign laws of left-wing states to trump or substitute for the
Constitution.  We must not let the French, or the U.N., for that matter,
influence our laws out of a misguided internationalism.

Steven W. Mosher
President


PRI Weekly Briefing
8 July 2005
Vol. 7 / No. 26

Will International Law Reign Supreme?
By Joseph A. D'Agostino
 
International law could provide a way of undemocratically maintaining easy
access to abortion in this country without relying on deliberate
misinterpretations of the U.S. Constitution as in Roe v. Wade.  The same
method could be used to impose same-sex marriage, anti-prosperity global
warming "solutions," and other fashionably leftist policies on the United
States, again without violating the explicit language of the Constitution.
 Even conservatives might be tempted to cite the laws of other countries
in order to curtail late-term abortion or restrict criminals' rights.
 
This temptation must be unequivocally rejected by conservatives,
pro-lifers, and pro-family activists.  Whatever short-term gain there may
be in such a tactic, it is opposed to republican government and American
tradition, and will lead to the further empowerment of anti-life,
anti-family, and anti-private property international apparatchiks.
 
Those on the left argue that nothing in the Constitution prohibits the use
of international law in decision-making, and this practice is perhaps
implicitly supported in the section on treaties.  Since the United States
accepts the validity of, and actively participates in, the creation and
application of international law, the argument goes, and since such law is
supposed to apply to all nations, why shouldn't American courts rely on it
in their decision-making?
 
In many matters, international law can be cited without seeming to violate
any specific provisions of the Constitution.  There is nothing in the
Constitution that explicitly prohibits same-sex marriage, caps on carbon
dioxide emissions as part of interstate commerce, or abortion.  In fact,
the Massachusetts Supreme Court used international law to justify its
imposition of same-sex marriage in its Goodrich decision, and the U.S.
Supreme Court used it to help justify its decision to outlaw the execution
of juveniles in Roper v. Simmons.
 
According to Professor Roger Alford of Pepperdine, few American legal
scholars are battling against this strengthening trend in American
jurisprudence.  Even William Rehnquist, the generally conservative Chief
Justice of the United States, gave a speech in which he praised the use of
international law.
 
"Comparative law is not new," said Alford in an interview, referring to
the practice of comparing constitutions and law in different countries in
order to better understand legal issues and what has worked in other
nations.  Referencing English law and other British-descended common law
countries' laws, in order to throw light on our own traditions, laws, and
Constitution, has a long and distinguished history.
 
More recently, however, the use of comparative law has been dangerously
expanded.  It now includes other countries outside our broad legal
tradition, and is used to justify ignoring our own traditions and laws.
Two new disturbing elements have been added: "Referencing international
tribunals is new," said Alford.  "Referencing international law is new."
International law per se is not the domestic laws of other countries, but
laws agreed upon in international fora to apply to everyone.
 
The original role of international law was to determine how nations should
deal with one another and with each others' citizens, but it has now
expanded to include universal individual rights and duties of governments
to their own citizens.  If the U.S. Supreme Court begins to use
international law to decide cases, then the values of international
diplomats and bureaucrats will be substituted for what's left of those of
our elected representatives.

For example, international treaties enshrine "reproductive rights" and
"reproductive freedom."  The compliance committee of the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) has
decided that this includes the right to abortion.  So have other
international agencies, many connected with the United Nations.  As I
write, the CEDAW committee is trying to force the government of Colombia
to abandon its protection of the unborn based on this supposed
international legal right.  Though the United States has not adopted
CEDAW, other international agencies of which we are a member have taken a
similar view of the phrase "reproductive rights."  What if the U.S.
Supreme Court decided to adopt that view?  After all, nothing in the
Constitution forbids "reproductive rights"-nor does anything grant them.
 
Banning discrimination on the basis of sexual orientation is fast becoming
a cornerstone of international law.  Couldn't that lead to the imposition
of same-sex marriage on America by an activist court?
 
The current Supreme Court is already selective when it comes to citing
international law.  In Lawrence v. Texas, the court cited the repeal of
laws against sodomy in Europe as justification for its invention of an
American constitutional right to sodomy, ignoring the laws against sodomy
that still dominate in Asia, Latin America, and Africa.  Unlike Roper,
which relied on the fact that almost all countries do not execute minors,
the use of comparative law in Lawrence "was much more selective," said
Alford.  He also noted that the court has not invoked comparative law in
free speech cases, perhaps because the court does not fancy diluting the
1st Amendment in this regard.  "We're more protective of free speech than
virtually any other country in the world," he said.
 
We also have the most permissive abortion regime in the world, and the
court has studiously avoided citing the more restrictive laws of other
countries in making its abortion rulings.  "When partial-birth abortion
comes to the court again," said Alford, "international practice could be
cited."  Law-and-order conservatives on the bench could also cite the
practices of other nations, almost all of whom have fewer protections for
criminal defendants than the United States.
 
The temptation to welcome the international law trend, which could be used
to pro-life advantage in some circumstances, should be entirely resisted.
Granting more influence to international diplomats, bureaucrats, and
jurists can only lead in the end to the triumph of their anti-life,
anti-family, and socialist agenda.

The Supreme Court, in recent years, has contributed to this trend, as it
reinforces the court majority's own prejudices and preferences.  "The
final conclusions in Roper merit close scrutiny, for they may suggest an
even more searching role for comparativism, in which constitutional
liberties can be confirmed or denied based on their affirmation or
rejection abroad," wrote Alford about the juvenile death penalty case.
 
Certainly, some experts explicitly advocate this globalization.  Alford
cites one in another article, for the February UCLA Law Review: "Harold
Koh's 'transnational legal process' theory posits the internalization of
international norms into domestic law, with the judicial branch as a
central channel for making international law part of U.S. law.  He
justifies this approach to constitutional interpretation in part because
failure to reference such material 'invites charges of parochialism, and
undermines U.S. influence over the global development of human rights.'"
 
Retiring Justice Sandra Day O'Connor has been a moderate on the use of
international law, said Alford.  Justices Scalia and Thomas have been the
most skeptical of its use.  When President Bush nominates replacements to
the Supreme Court in the mold of Scalia and Thomas, as he has said he
wants to do, he should ensure that they, too, have a skeptical attitude
toward international law.
 
 
Joseph A. D'Agostino is Vice President for Communications at PRI.


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