Wednesday, February 22, 2006
John Roberts and the Supreme Court Disparage "International Law." Good.
"Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao do Vegetal et al.: On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit," by John Roberts et al, Supreme Court of the United States, 21 February 2006, http://www.supremecourtus.gov/opinions/05pdf/04-1084.pdf.
While not quite as succinct as Justice Antonin Scalia's criticism of international law, Chief Justice John Roberts has officially put "international law" in its place
John Roberts: Lord of International Law
The case, which struck down a federal drug law, was well decided. That is good. The government gave an incompetent and lackluster defense. That is typical. But what's wonderful is this paragraph
The fact that hoasca is covered by the [U. N. Commentary on the Convention on Psychotropic Substances], however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. See Declaration of Gary T. Sheridan (Jan. 24, 2001), App. G to App. to Pet. for Cert. 261a; Declaration of Robert E. Dalton (Jan. 24, 2001), App. H, id., at 265a. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under [the Religious Freedom Restoration Act] invocation of such general interests, standing alone, is not enough.
In other words, the Court has affirmed two principles
- First, treaties have to meet a "compelling interest" before they trump certain domestic laws, such as the RFRA
- and Second, international law is only valid in the context of "international consequences," not as laws unto themselves
Those who support America's submission to "international law" often cite the second paragraph of Article VI of the US Constitution
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Constitution lists three sources of the "supreme law of the land"
- the Constitution itself
- the laws of the United States
- all treaties made
However, in the same sentence, the Constitution instructs all judges to be bound by that, notwithstanding
- "anything in the Constitution," or
- "the laws of any State"
In other words, the Constitution identifies three sources of Supreme Law (the Constitution, Laws, and Treaties), and then identifies the Constitution and the Laws as the most important of these. The Supreme Court may listen to government pleas that it has an interest in some treaty, or that some treaty beneficial consequence to the United States.
Treaties are the least democratic source of "law," because they are enacted by the joint action of the President (who is indirectly elected through the Electoral College) and the Senate (which represents the States, and thus has equal representation for states regardless of the population). Under our democratic system of government, treaties are rightfully deprived of much power and influence.
As the historian Mark Safranski wrote:
Most of what passes for " International Law " are simply arguable moral claims advanced by interested parties. The most solidly " legal " core of international law is considered binding because nations-states have agreed almost universally to restrict themselves with certain provisions out of self-interest. Enforcement comes only in the cases of the most egregious violations when the moral outrage of the world can be coupled with the selfish interests of the great powers to intervene. That is about the best we can expect from such a system and if ardent advocates of International Law Theory get their way, we won't even have that much.
International law is best taken with a healthy dose of common sense.
The Roberts Court recognizes this.