June 13, 2006
Foreign Law Fuelling Judicial ActivismBy Seth Cooper
The U.S. Supreme Court's decision in Hamdan v. Rumsfeld is expected to be handed down this month. The case could quite likely become the most high—profile instance of justices redefining the U.S. Constitution using contemporary foreign law. Hamdan would thereby constitute an unprecedented foray into foreign affairs by the federal judiciary.
The case concerns the constitutionality of military tribunals for enemy combatants in Guantanamo Bay. Foreigners citing foreign law sources submitted amicus curiae briefs to the high court. In a recent speech in South Africa, Justice Ruth Bader Ginsburg even noted international disapproval of America's detaining enemy combatants at Guantanamo Bay. She defended use of foreign law in interpreting the Constitution.
By giving meaning to the Constitution through foreign court decisions and statutes, justices engage in judicial superactivism. This runs contrary to the Constitution's original understanding and undermines American self—government. The Declaration of Independence and the Constitution affirm: our republic and laws are based upon consent of the governed.
Two cases wherein Supreme Court majorities cited modern foreign law as a partial basis for their conclusions contravene the consent of the American people. In Lawrence v. Texas (2003), the Supreme Court declared unconstitutional a state sodomy law. Reversing its prior decision in Bowers v. Hardwick (1986), Justice Anthony Kennedy's opinion cited British Parliament action and a European Court of Human Rights' decision.
In Roper v. Simmons (2005), the Supreme Court declared that execution of convicted murderers under age 18 violates the Eight Amendment's prohibition against cruel or unusual punishment, reversing its decision in Stanford v. Kent ucky (1989). Reversal came, in part, through Justice Kennedy's invocation of a United Nation's convention on the rights of children the U.S. Senate never ratified, and upon a provision in the U.N.'s convent on on civil and political rights that the Senate affirmatively rejected.
Foreign sources cited in Lawrence and Roper were completely detached from any constitutional or statutory provisions authorized by American institutions or the American people. Nonetheless, laws enacted by majority rule were struck down, with the Supreme Court partially supplanting those jurisdictions' legislative authorities. They partly shifted that authority to foreign decision—makers.
Early America justified judicial review as an exercise on behalf of the citizenry. Wrote James Iredell, judges must ensure that enforced legislation is "warranted by the constitution" in using their powers "for the benefit of the whole people." By contrast, Supreme Court majorities in Lawrence and Roper brought American law closer to foreign opinion.
The Declaration of Independence states the basis of republican government. Governments exist to secure inalienable rights, "deriving their just powers from the consent of the governed." Consent of the governed is a matter of first principle—the joining of people in into a nation—state. While statutes of the Congress or state legislatures are not consented to in the sense of the original compact, the principle of majority rule in legislation owes its source to that original consent.
America's founders rejected anti—republican philosophies from the Old World. Here there would be no monarchs, aristocracies or despots. Governments would not be dispensers of rights, taking them away when convenient. Nor would rights hinge upon the whims of neighboring tribes or rogues. America set itself apart. As George Washington maintained,
Rights inhere in the people by nature. Government is entrusted only with powers delegated to it.
The Constitution was ratified by state conventions of "We the People." Ratification constituted Americans' consent to a new government. It was their answer to the question Alexander Hamilton posed in The Federalist No. 1:
The Constitution did away with vestiges of monarchy, including titles of nobility, corruption of blood and religious tests. State legislatures eliminated primogeniture and entail. American courts questioned the applicability of Old World doctrines in constitutional and common law cases. How Americans answered those questions is instructive today.
Article III provided federal courts with jurisdiction in
Following ratification of the Constitution (and Bill of Rights), Americans debated that jurisdiction's boundaries. Did the common law of England remain enforceable under the Constitution? Would constitutional provisions be accorded meanings corresponding to inherited understanding of English common law? State courts, charged with upholding federal law under Article VI, faced similar questions.
Anti—federalists, including Thomas Jefferson, criticized the common law as a monarchical and aristocratic schema. Federalists constituted conservative advocates of common—law liberty. For instance, the common law embodied popular consent by recognizing commercial custom and enforcing party expectations in contracts. To be sure, methods of common—law reasoning deeply informed American understanding of law. Also, federalism and separation of powers factored into whether English common law was incorporated into federal common law. (It was eventually settled that there was no federal common law of crimes.)
But not even High Federalist Chancellor James Kent accepted wholesale incorporation of English common law in America. Republican government was incompatible with many English doctrines. America's affirmation of human equality and popular consent required judicial reevaluation of the appropriateness of common law doctrines. Rules for monarchies, supreme parliaments, or arbitrary authorities were discarded.
A crucial distinction exists between older international sources of law that shed light upon the original understanding of the Constitution, and recent foreign sources that do not. One can embrace the former while rejecting the latter.
Provisions in the Magna Carta (1215) concerning deprivation of liberty "by the law of the land" illuminate original understanding of the Fifth Amendment's Due Process Clause. (By contrast, recent court decisions from Zimbabwe do not helpfully expound the Fifth Amendment's prohibition against takings of private property "for public use, without just compensation.")
The natural rights' tradition and the common law permeated early America's legal lexicon. To the extent the Constitution codified natural law and/or common law terms of art, "We the People" consented through ratification. But they never consented to foreign law sources recently cited by Supreme Court majorities.
Beyond contravention of the Constitution's text, judicial reliance upon contemporary foreign law disregards concern for republican principles. In a 1999 dissenting opinion concerning death—row inmates' Eight Amendment rights, Justice Stephen Breyer described decisions by the Supreme Court of India, the European Court of Human Rights, and the Supreme Court of Zimbabwe as "useful." But even a cursory examination of republican principles shows them to be at odds with those principles underlying such contemporary foreign law sources.
Federal judges swear an oath to uphold and defend "this Constitution." Their decisions are made within the context of separated powers. They are accountable to impeachment. But multi—national tribunals of jurists appointed by other appointees do not operate within such a dynamic. Nor do judges operating under systems of parliamentary supremacy. Neither are remotely accountable to the American people.
Federal judges serve lifetime appointments on good behavior to ensure they follow the rule of law, rather than mob rule leading to destruction of private rights and property by political officials. If the legal traditions of England were often considered inappropriate in early America, more clearly should today's jurists disregard decisions of foreign tribunals that contributed nothing to America's constitutional tradition.
Constitutionalists can only hope that the disturbing trend seen in Lawrence and Roper will receive strong setbacks in a future decisions. Confirmation hearings of Chief Justice John Roberts and Associate Justice Samuel Alito suggested their respective disinclination toward using contemporary foreign law to interpret constitutional provisions. But the trend may require repeated rejection by the newly—constituted Supreme Court.
We cannot count on Hamdan to provide an occasion for such a blowback. The new Chief is unfortunately recused in Hamdan.
James Madison wrote that it is
By recalling that the American government derives from the consent of its own and by rejecting foreign, anti—republican principles, our judges must secure the rights of "We the People."
Seth Cooper is an attorney in Washington State. He is a contributing blogger at Guns and Butter.