Will International Law Reign Supreme?

Steven Mosher
By Joseph A. D'Agostino
PRI Weekly Briefing
8 July 2005
Vol. 7 / No. 26
Reproduced with Permission

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fs 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.