customary international law

The Supreme Court is back in session. Today, it is hearing a challenge to a federal law banning depictions of cruelty to animals brought by a defendant convicted of selling pit-bull dogfight videos. A federal appeals court struck down the 1999 law as a violation of the First Amendment. The government is asking the Supreme Court to reinstate the law, and rule that animal cruelty depictions are not protected speech, the way some other kinds of speech, like obscenity, are considered unprotected by the Supreme Court.  (While the Supreme Court has ruled that obscenity is not protected speech, it has required that obscenity be defined narrowly so as not to reach sexually-oriented speech that either has artistic, literary, or political value, or is not patently offensive.)  At oral argument today, the Justices suggested that the law is overbroad and vague.

The Supreme Court also recently agreed to hear a challenge to Chicago laws banning handguns, in a case called McDonald v. City of Chicago. I explained earlier why the lower court ruling upholding the ban was based on flawed reasoning about how Second Amendment rights apply to state and local governments.

The court will also hear a challenge to the imposition of life sentences without parole on teenage offenders who have repeatedly committed violent crimes (like rape and sexual battery) against victim after victim, but not yet succeeded in killing someone. If the challenge is successful, it may be harder for states to deter violent crimes by minors against children and adults alike. (The death penalty and life sentences are significant deterrents to those who commit violent crimes, reducing the murder rate.  For example, a recent Emory University study says that each execution deters approximately 18 murders.)

The Heritage Foundation explains why life sentences without parole are appropriate, and why it would be a bad idea for judges to make up limits on such sentences.

A gaggle of left-wing lawyers and religious groups are asking the Supreme Court to rule that the Eighth Amendment’s ban on cruel and unusual punishment restricts the imposition of life without parole on juveniles, even when they have repeatedly committed violent crimes. Their long-run goal is to make it as difficult to impose life sentences as it currently is to impose the death penalty, which cannot be carried out without years of endless and expensive appeals, most of which focus on aggravating or mitigating factors, rather than the defendant’s guilt or innocence (even admittedly-guilty death row inmates often succeed in delaying for years, or even overturning, their death sentences).  (Most murderers never even get the death penalty, even when they outrageously torture the dying victim.)

The left-wing lawyers and religious groups are also unjustifiably seeking to use fuzzy notions of “customary international law” to override U.S. law, as the Cato Institute and others have pointed out in their court brief.

“Customary international law” threatens America’s security and civil liberties.  Piracy flourished in the crucial shipping lanes off the coast of Somalia partly due to a treaty that the U.S. has not ratified yet — but which is often described as “customary international law” binding on all nations. Partly as a result of the LOST Treaty, billions of dollars worth of cargo, and human lives, have been lost due to piracy. Harold Koh, appointed by Obama to be the State Department’s chief lawyer, argues that “customary international law” like LOST is binding on the U.S., even when it is reflected in treaties that the U.S. has refused to sign.  (European human-rights conventions and an indecisive White House also have delayed action against the pirates.)  That’s just one reason U.S. policymakers should think twice before following vague “international norms.”

Since customary international law is vague, liberal lawyers invariably use that ambiguity to claim that it dictates a host of controversial requirements that few countries would voluntarily adopt on their own, like banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.”

One of the arguments in the animal-cruelty video case — that the government can prohibit an entire category of speech to promote a “compelling interest” — is quite dangerous, because courts now routinely find even trivial government goals to be “compelling interests.” It is almost considered bad manners for a judge to candidly say that a law passed by a legislature is not supported by a compelling interest, which is why judges usually strain to find that the other Supreme Court requirement for upholding a ban on speech (“narrow tailoring”) is missing instead. (In my 2007 law review article, I listed some of the not-very-crucial interests widely recognized by the courts as “compelling,” like “preventing splintered political parties and establishing professional standards.”  Courts sometimes find interests to be “compelling” even when they logically contradict each other — for example, courts have found “compelling” interests justifying both governmental discrimination against gay people, and governmental bans on discrimination against them (even purely private discrimination by religious groups or clubs).  Some court rulings finding “compelling interests” are just wrong.)

The Supreme Court cases challenging life without parole are Graham v. Florida and Sullivan v. Florida. The animal cruelty video case is U.S. v. Stevens.