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VOL. 12, NO. 1January 12, 2010
"We the People of What"?

Foreign/International Law v. Our Constitution


"The assault by judicial supremacists (activist/liberal or "Reconstructionist" judges) against the Constitution and the rule of law is the most serious issue facing our political system today. If unchecked, judicial supremacy will continue to grow like a cancer and destroy our republic." So wrote the "Mother of American Conservatism," Eagle Forum's Phyllis Schlafly, in her 2004 book, The Supremacists.

Mrs. Schlafly's assertion is even truer today — if possible — than when it was first written. And no weapon of Reconstructionist judges is more deadly than their invocation of foreign and international law to interpret the U.S. Constitution. This fact is starkly evident in a U.S. judicial decision rendered just a week ago — Al-Bihani v. Obama. Here a 2-1 panel of the District of Columbia Court of Appeals (sometimes called "the nation's second most powerful court") ruled that Al-Bihani's detention at Guantanamo Bay, Cuba since 2002 was constitutional.

Both the majority opinion and a concurring opinion in this case were written by Judge Janice Rogers Brown, whose nomination to this D.C. Circuit Court was vigorously supported by Constitutionalists in 2005. These Al-Bihani opinions provide an excellent summary of some of the most forceful arguments against the implementation of foreign/international law in the U.S., specifically in cases involving military/war issues. Al-Bihani relied heavily on the "international laws of war" in arguing that his Gitmo detention was unconstitutional. But Judge Brown rightly rejected this approach, stating that, "The international laws of war as a whole have not been implemented by Congress and are therefore not a source of authority for U.S. courts." Al-Bihani's case — and Reconstructionists' case for America's implementation of foreign/international law in general — are further attacked by Brown. She declared that ". . . the internatational laws of war [indeed "international laws" in general] are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid . . . ." She explains further that, "(. . . there is 'no precise formula' to identify a [an international] practice as custom and that '[i]t is often difficult to determine when [a custom's] transformation into law has taken place')."

The accuracy of Brown's characterization of international law is obvious, as are the other fatal flaws of efforts by Reconstructionist American judges to inject foreign/international law into American law. Two recent U.S. Supreme Court decisions make this especially clear. These two are Lawrence v. Texas (2003), which threw out the Texas sodomy law, and Roper v. Simmons (2005), which forbade states to impose the death sentence on offenders who were under the age of 18 when they committed their crime. (Christopher Simmons, at age 17, clearly committed murder, bragging in "chilling, callous terms" about the crime both before and after its commission.)

One cogent summary of the dangers of American judges' invoking foreign/international law can be found by careful analysis of an assertion made by the six pro-sodomy Justices in their majority opinion in Lawrence.

. . . we think that our laws and traditions in the past half century are of most relevance here. . . . [S]weeping references [in past cases upholding sodomy laws] to the history of Western civilization and to Judeo-Christian moral and ethical standards [opposing sodomy] did not take account of other authorities pointing in an opposite direction [i.e., the 1963 Wolfenden Report in England, an early 1980s decision by the European Court of Human Rights, and the Universal Declaration of Human Rights. The Lawrence brief by Mary Robinson, former UN High Commissioner for Human Rights, asserted that "a court ruling favorable to sodomy laws 'will generate controversies with the United States's closest global allies".)

From this quote, as well as other Court comments in Lawrence and Roper, we uncover egregious attacks on America's constitutional system. Among the worst of these attacks are the following.

  1. In order to inject the virus of foreign/international law into the lifeblood of America's constitutional system, the Reconstructionist Supreme Court Justices continue their practice (observable in numerous recent decisions) of usurping authority over the Constitution. They admit this in Roper. ". . . the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death sentence." (The Constitution contemplates no such thing, nor did American jurists through most of American history contemplate such.) This is likewise clear in Lawrence, where the Court baldly admits that "we think" (not "the Constitution provides") that recent law is supreme over earlier law.

    Of course, it is impossible for foreign/international law to play a significant role in U.S. constitutional interpretation unless the judges make themselves supreme over the Constitution because nothing in the Constitution's text or our American and classical English traditions allow for foreign/international law to influence the meaning and application our fundamental law. Millennia of America's foundations are erased with this one judicial act by six Supreme Court Justices who occupy their seats for, at the most, thirty to forty years.

  2. The foreign/international law cited by the U.S. Supremes is squarely opposed to out Constitution's text and constitutional/jurisprudential traditions. This is clear in the comment quoted above from Lawrence. The "history of Western civilization and Judeo-Christian and moral and ethical standards" point "in an opposite direction" from current foreign/international law, some of which legalizes sodomy. Our American system and the classical British system are founded squarely on a Judeo-Christian foundation. Current foreign/international laws are infused with Humanistic worldview arguments, upholding homosexual rights. These two legal systems are polemic and irreconcilable.

  3. The Court's assertion that inserting foreign/international law into American jurisprudence is based on "certain fundamental rights" held by other nations which are central to "our own heritage." What rights? The Court just told us in Lawrence that our Judeo-Christian and Western traditions are "opposite" the current positions of much of the rest of the world on homosexual conduct. When two legal systems disagree on an issue as basic as the nature of man and human sexuality, one wonders how "the rest of the world" and America can agree on much of anything in our system of fundamental constitutional principles.

    The impossibility of finding fundamental agreements on basic principles between America and "the rest of the world" becomes clearer when we view the list of foreign nations and international agencies that the Court cites as sources for its interpreting our Constitution. This list includes India, Zimbabwe, Jamaica, the European Court of Human Rights, the European Convention on Human Rights, Canadian courts, the United Nations Convention on the Rights of the Child, the European Union, etc. Even the United Kingdom can no longer be cited (although the Court does so) as a legitimate source for understanding the U.S. Constitution. As Justice Scalia points out in his Roper dissent (joined by Chief Justice Rehnquist and Justice Thomas), ". . . with increasing speed, the United Kingdom [has submitted] to the jurisprudence of European courts dominated by continental jurists — a legal, political, and social culture quite different from our own."

  4. If the U.S. Constitution's standards regarding sodomy and use of capital punishment are to be shaped at least partially by foreign/international laws, shall we then adopt non-American legal standards in other areas where there is current disagreement? These current "discrepancies" between American and non-American law include law related to America's exclusionary rule, separation of church and state, and abortion. Scalia's Roper dissent highlights some of the irreconcilable conflicts between current American and non-American law. For example, "The Court-pronounced exclusionary rule, . . . is distinctively American." Since this rule is considered to work generally to the advantage of the Humanistic worldview's tenets, would Reconstructionists support the elimination of this rule because it is not common to "foreign and international law"?

    Similarly, "most other countries — including those committed to religious neutrality — do not insist on the degree of separation between church and state that this Court requires." But American Reconstructionists' insist on radical "separation of church and state" — in total opposition to foreign/international law in general. Are the Americans willing and eager to therefore abandon their insistence on "separation of church and state" in the U.S. in order to conform to foreign/international law?

    Looking further in differentiating between American and foreign/international law, we encounter an issue we cannot ignore — of abortion. Unbelievably to some of us, the U.S. Court's abortion law is extraordinarly pro-abortion — "makes us one of only six countries that allow abortion on demand until the point of viability." As with separation of church and state jurisprudence, the American Court's Reconstructionist-created law is out of line with foreign/international law. Are the U.S. Reconstructionists eager to toughen constitutional protections for the unborn child in order to bring American law more in line with foreign/international law?

  5. Our Supremes' invocation of foreign/international law in interpreting our matchless Constitution destroys "law" as a basic concept. As Scalia observed in his Roper dissent, "the concept of 'Law' ordinarily signifies that particular words have a fixed meaning." But an even cursory view of the law of other nations reveals that they include — or are even based on — concepts and values nonexistent in American law. American constitutional concepts of "life, liberty, and due process of law" are not found in many legal systems, or bear quite different meanings from ours if such concepts do exist. There is no fixed list of basic principles among the world's legal systems, and no universal fixity in the priority or meaning assigned by various nations to the legal phrases they do use in common with one another.

    As for "international law," there is no such thing. "Law" requires an agency with sufficient authority and ability to enact and enforce its mandates on the entire jurisdiction it purports to cover. There is simply no such authoritative agency existing in today's world. Furthermore, there is no genuine "world community" over which an international government could rule. Therefore, "international law" is an oxymoron.

The conclusion of the matter is that Justice Scalia was absolutely right in arguing in Roper that "To invoke alien law when it agrees with one's own thinking [i.e., the thinking of a tiny group of Justices on our Supreme Court], and ignore it otherwise, is not reasoned decision-making, but sophistry." So long as our Supremes persist in invoking even some foreign/international law, our legal system and culture cannot rely on America's courts to provide certainty, consistency, and continuity. Yet these qualities are what British scholar H.L.A. Hart asserted are necessary if any legal system is to be healthy and mature. To argue otherwise (i.e., in favor of foreign/international law) is to severely threaten our Constitution and our entire culture.

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