Supreme Inconsistency on Foreign Law

by Hans Bader on April 13, 2009

in International, Legal, Personal Liberty, Politics as Usual, Sanctimony

Justice Ruth Bader Ginsburg says that American courts should look more to foreign court rulings in interpreting our Constitution. But she herself does so only when it is ideologically convenient.

For example, Justice Ginsburg cites foreign court rulings to advocate cutting back on the use of the death penalty. Some liberal lawyers go further, claiming that since most European countries don’t have capital punishment, the death penalty must be against “customary international law” and the weight of world opinion (even though ordinary citizens in many European countries, like the United Kingdom, typically support the death penalty).

But Justice Ginsburg, and American lawyers, tend to ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries’ courts have for the American practice of letting virtually unguided juries award punitive damages. In most of the world, punitive damages are forbidden.

Justice Ginsburg is the biggest advocate of punitive damages on the U.S. Supreme Court. She opposes any limits on punitive damages under the Due Process and Excessive Fines clauses of the Constitution, and interprets federal laws as authorizing punitive damages even when they are silent on the issue.

Another example is abortion; while most European countries recognize the right to an abortion, they recognize that that right, like all rights, has limits, and typically require that abortions be performed prior to the end of the first trimester (unlike in the United States, where third-trimester partial-birth abortion was long de facto legal, and remains difficult to regulate as a result of court rulings).

Justice Ginsburg, by contrast, dissented against the Supreme Court ruling upholding limits on partial-birth abortion.

Foreign constitutions are often very different from ours, but that doesn’t stop Ginsburg from citing court rulings interpreting those constitutions as if they were relevant to ours. Yet she ignores relevant foreign court rulings involving provisions that are identical to American laws when it is convenient to do so.

For example, both the U.S. and foreign countries signed the Warsaw Convention, and helped craft it, so U.S. courts should look to foreign court rulings for any insights they may have about what its vague provisions mean and what its drafters intended. But in Olympic Airways v. Husain (2004), Justice Ginsburg did just the opposite, joining a Supreme Court decision that, as Justice Scalia noted in dissent, rejected the rulings of every foreign court that has considered the meaning of the Warsaw Convention. (The ruling that Ginsburg joined, not surprisingly, was “liberal” in that it allowed for more liability than foreign courts would have permitted). That ignored the longstanding principle that in interpreting a treaty, courts of one country are supposed to “accord the judgments of our sister signatories considerable weight.”

American lawyers also ignore foreign law when it comes to privacy. Many foreigners are puzzled by the multibillion dollar lawsuits brought by lawyers against phone companies for cooperating with government antiterror surveillance programs after 9-11. Other countries like Sweden permit their governments to engage in much broader surveillance than the FISA bill would permit the U.S. government to do. The belief by many liberal commentators that the government should have to obtain a warrant before monitoring communications with foreign terrorists strikes many foreigners as peculiar. So, too, does the claim that the phone companies should be subject to punitive damages, even if the government itself doesn’t have to pay a dime.

There are risks to looking to “international law” in interpreting our Constitution. So-called “international law” has been a major obstacle to combatting piracy in the crucial shipping lanes off the coast of Somalia, leading to killings, kidnappings, and billions of dollars in losses.

“International law” is also vague and manipulable. International tribunals and “human rights” bodies issue rulings that purport to have the force of law. But much of their reasoning is based not on written laws found in any law book, or agreed to by any legislature or citizenry. Instead, it is based on vaguely-defined “customary international law,” principles of so-called “natural law” derived from a supposedly “clear consensus” by enlightened people across the globe. But that “consensus” is often illusory, since it can easily be fabricated, manipulated, or distorted by international lawyers.

Lawyers are, on average, further to the left politically than the average citizen. And so-called international lawyers are even more so. Just as the grass always seems greener on the other side of the fence, lawyers often claim that the law is more liberal elsewhere in the world than in their own benighted country, and that such liberal norms — at odds with their own country’s law — constitute customary international law. Thus, it is commonly argued that customary international law bans the death penalty for mass murderers, and requires countries to ban disfavored forms of speech (such as “hate speech,” or criticism of any religion), although in reality, the strongest support for bans on such speech actually comes from undemocratic regimes like Cuba and China.

It is hard to fight these claims even when they are false, because ordinary people (and even most lawyers) don’t know much about foreign law. The lawyers who fashion “customary international law” are thus largely unaccountable. Perhaps as a result, customary international law is generally of poorer quality than domestic law. Scholars have cited this fact in celebrating the Supreme Court’s recent decision in Medellin v. Texas (2008), which refused to make Texas hear yet another challenge to a murderer’s conviction (which had already twice been upheld by different court systems) when ordered to do so by the International Court of Justice (a ruling at odds with the fact that virtually all ICJ member countries permit only one appeal of a conviction, not successive appeals).

Misleading the public about foreign law is common among “human rights” officials. For example, an official in Australia’s new Labour government claims that people accused of race discrimination should have to prove themselves innocent, rather than being proved guilty. To justify this outrage, he and Australia’s “human rights” commission claim that is the practice in America, when in fact it is quite the contrary.

American law puts the burden of proof on the complainant and the government, not the alleged offender, in discrimination cases. The U.S. Supreme Court explicitly so ruled in Texas v. Burdine (1981) and St. Mary’s Honor Center v. Hicks (1993). But Australia’s Race Discrimination Commissioner, Tom Calma, and the Australian Human Rights and Equal Opportunity Commission falsely claim that under American law, “the onus of proof” is on “the person who has been accused of discrimination.” (See “Call to Switch Onus on Racist Offenses,” The Age, News, April 5, 2008).

Joseph H.H. Weiler, a law professor who co-drafted the European Parliament’s Declaration of Human Rights and Freedoms, made American legal thinking seem more liberal than it is, by inviting to Europe to represent it two of America’s most radical law professors: the University of Michigan’s Catharine MacKinnon, who considers most heterosexual sex to be rape; and Harvard Law School’s Duncan Kennedy, who advocated having law school professors periodically exchange their positions with college janitorial staff in order to promote diversity and social equality.

By contrast, when laws across the world are more conservative than a law professor’s own, they are studiously ignored in formulating “human rights” law (like the world-wide aversion of most countries’ legal systems toward civil punitive damages and late-term abortions, which U.S. law often permits).

The very international “human rights” lawyers who insist that “hate speech” should be curbed are often radicals who are blind to certain forms of prejudice. A classic example of this is the disturbing Richard Falk, recently appointed by the U.N. Human Rights Council to investigate Israel. Falk, a liberal Princeton professor emeritus, has likened Israel to the Nazis, praised the Ayatollah Khomeini (the Iranian dictator whose regime ordered the killings and torture of many religious and ethnic minorities in Iran), and promoted 9/11 conspiracy theories that accuse the U.S. government of complicity in the 9/11 attacks. Falk’s wackiness may offend the general public and Israel, which plans to bar him from coming to Israel, but it apparently does not offend lawyers and state judges very much: it did not stop the Washington State Supreme Court from citing his advocacy of affirmative action to uphold a discriminatory, gender-based affirmative-action set-aside in public contracting, in Southwest Wash. Chapter v. Pierce County, 667 P.2d 1092 (1983).

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