International Influence and Constitutional Law
The opening night of the International Law Association's International Law Weekend began with bang-up discussion of the Supreme Court's recent citations of international law in last term's decisions, and the prospects for its use this coming term. The scholars tend to refer to such citation as a subset of "comparative constitutionalism". Personally, I think that's a bit overwrought; but let me present the views of the panelists before I go further.Four interesting views were presented by four leading constitutional scholars, and all had merit. Two were con, two were pro. The first was Roger Alford, who attempted to bridge the gap between the court's citation of international law, and the theories of analysis which underlie many of the court's decisions. Alford's theme was that this could not be comfortably done. Originalists, who believe the Constitution should be interpreted according to the original intent of the Founding Fathers and are today's conservatives on the court, use comparative material (Scalia has a yen for Blackstone), but only comparative material that is very old. Majoritarians, who embrace sovereign exercises of majoritarian will in their decision making, necessarily eschew comparative constitutionalism unless it fits within the will of the majority. Living Constitutionalism, which Alford described as "interpretive majoritarianism", views the Constitution as a document which must be reinterpreted by each generation to fit the needs and believes of that generation, generally base their conclusions in the national experience, and thus, according to Alford, are unlikely to find international law useful and thus would not be a good theoretical candidate.
The final part of Alford's presentation a presentation of two good theoretical candidates for an application of comparative constitutionalism: natural law and pragmatism (putting aside for the moment that pragmatism is not much of a theory). Natural law advocates, says Alford, are likely to use phrases such as "implicit in the concept of ordered liberty", the modern definition of substantive due process rights first used in the free speechPalko case, and thus, may see the weight of international opinion as further proof of the correctness of their decisions. The pragmatists, who will necessarily use whatever is necessary to prove their point, will use international law as well, albeit as a gloss on other materials.
Michael Ramsey was the second con. Ramsey, a former Scalia clerk, argued that those who sought to use international law ran into a logic problem. The problem was that those who favored using international law and opinion to make decisions wanted to rely on international law and opinion, but only when it suited them, suggesting Alford's pragmatist view. This, he argued, was hardly principled. If one was going to rely on international law and opinion, one would have to take the good with the bad to be consistent. If the juvenile death penalty were overturned because the vast majority of the international community is against it, why not abandon the Fourth Amendment's protections, since they are further-reaching than almost anywhere else in the world? If international law is a reason to invalidate sodomy laws which persecute gays, what about those countries, and there are many, that continue to hold the homosexuality is an abomination?
The problem with Ramsey's argument, airtight as it was from a certain logical standpoint, was that it was effectively a condemnation of all dicta and all persuasive citation. When a New York court examines a matter of first impression that two other state courts have examined and come to disparate conclusions upon, does not the New York court citation of the opinion of the court it agrees with constitute the same logical problem?
The Pros will come in my next post.
posted by Michael Brenner @ 4:16 PM
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