Magazine | March 28, 2016, Issue

Sovereignty Assaulted

Will the Constitution be cast aside in favor of international law?

From his first days on the Supreme Court in 1986, Justice Antonin Scalia insisted that judges read the Constitution as it was understood when drafted and ratified. He also demanded that they resist the temptation to substitute their own political views for those of our elected representatives. As the battle over his seat on the Court begins, these critical insights about the Constitution and the judicial role should occupy the very center of the fight.

One crucial issue facing the Supreme Court has been and will continue to be American national sovereignty. On this question, Scalia was stalwart in rejecting the idea that foreign law could be used to interpret the Constitution. Unbeknownst to most Americans, foreign countries (most of them European), international organizations, and international-law professors, lawyers, and activists regularly appear before the Court and press the justices to adopt foreign norms. Justice Scalia publicly worried that this phenomenon could be “the wave of the future.”

He had good reason for concern. The outcome of the 2016 presidential election, in which national security will figure prominently, could well decide the matter for decades. We are not going out on a limb to predict that a Hillary Clinton administration would only accelerate the Obama administration’s foreign-policy mistakes, including its withdrawal of American leadership from world affairs and its deference to foreign governments and international institutions.

Before it resonated throughout the Obama administration’s foreign policy, the idea of deferring to international and foreign law got its start on the Supreme Court. In cases ranging from the death penalty to gay rights, several justices have resorted to foreign law as a tool to interpret the Constitution. In Atkins v. Virginia, for example, the Court required states to consider the intelligence level of defendants before imposing capital punishment. “Within the world community,” the majority wrote, “the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” Never mind that most countries in the world also don’t impose the death penalty. In Lawrence v. Texas, the majority struck down state laws banning homosexual conduct by relying, in part, on recent British legislation and decisions of the European Court of Human Rights. Liberal opponents of the Court’s halting steps in defense of federalism have sought support from European and other countries’ weaker protections for state sovereignty.

Justice Scalia criticized this tendency with his signature verve and wit. “If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are governed.” Why, then, would American judges seek to adopt foreign legal practices? Because it is part of the fundamental struggle over constitutional interpretation. Once judges believe they should “update” the Constitution in line with contemporary opinions, they are writing a new constitution, not interpreting the old one. Foreign law ultimately increases the power of judges — which Scalia consistently opposed — because it gives them a bigger tool kit with which to reach their desired results. Criticizing the growth of judicial activism abroad, Scalia declared, “If you are a living constitutionalist, you are almost certainly an international living constitutionalist.”

Justice Scalia diagnosed this problem early, but the temptation to cede U.S. sovereignty in favor of foreign and international law has spread well beyond the courts. The Obama administration has gone to unprecedented lengths in its eagerness to concede U.S. military and political leadership to international organizations and international law.

Take the U.S.–Iran nuclear agreement. Rather than seek approval for it as a treaty (which requires approval by two-thirds of the Senate) or as a congressional–executive agreement (with consent of both houses of Congress), President Obama acted unilaterally to make the deal. Obama-administration supporters claimed the agreement was binding because of a U.N. Security Council resolution, and the State Department did little to dispel the notion while Congress debated whether to disapprove the Iran deal. On global warming, the administration seeks to participate in the Paris agreement without going through the constitutional process for protecting our sovereignty required by the treaty clause. Instead, the administration  claims the U.S. must reach pollution targets given meaning only by international law, but it will no doubt use the Paris agreement to justify ever more burdensome EPA regulations on industry. Even some hawks challenging China’s territorial claims in the South China Sea hope that the parchment barriers of the Law of the Sea Treaty, rather than a rejuvenated U.S. Navy, will protect our interests. The Obama administration would not intervene in Syria, where the death toll now measures in the hundreds of thousands, without some form of international approval. Similar arguments are made that the United States should limit the use of land mines, cyber weapons, drones, or its operations in outer space, relying on the promises of international law rather than the U.S. military to guard our security.

International law represents a threat to U.S. sovereignty not just because of the activist effort to constrain American freedom of action within a straitjacket of international rules. International law today is fundamentally different from traditional international law, which took the form of agreements between nations or at least universal rules that had received unanimous consent from all states. For hundreds of years, international law represented the agreement of states pursuing their own self-interest, and so states not only benefited from it but also had a high likelihood of complying with it.

Today, however, an elite group of activists, lawyers, and international officials drives international law. They identify their preferred policies first, and then seek to pressure states to adopt them. Consider the 1996 Ottawa convention banning land mines. The apparent success of the treaty, which now includes about 80 percent of the world’s nations, did not result from the agreement of nations at war. Indeed, many nations with the most at stake — such as the United States, Israel, and India — refused to join. Rather, the Ottawa convention was the work of international activists, representing no states, who were eventually awarded the Nobel Peace Prize for their efforts. Ottawa “spawned a new politics, new partnerships, new ways of thinking about the international environment. It was the forerunner of a clear notion of global citizenship,” writes Lloyd Axworthy, a former Canadian foreign minister and currently president of the World Federalist Movement. “It challenged conventional notions of sovereignty and set in motion a form of coalition politics at the global level that could be used to shift power and political relationships.”

Relying on foreign law threatens American sovereignty not just by restricting American foreign policy. It also would bring about significant changes in domestic policy. Some critics of the Second Amendment — which Scalia, writing for the Court’s majority, definitively found to guarantee an individual right to bear arms in District of Columbia v. Heller — seek to limit the sale of guns by urging that America join the Arms Trade Treaty. Critics of the death penalty point to its dwindling use internationally, arguing that this foreign consensus should help establish that capital punishment has become cruel and unusual.

Justice Scalia correctly saw the use of foreign law as boosting judicial activism. By giving judges freer rein to read their policies into the Constitution, looking abroad helps short-circuit Madisonian representative government and the very concept of separation of powers. Interest groups lobby international organizations in forums that are anything but democratic: In most international bodies, each nation, regardless of population, political system, or economy, has an equal vote. Transnational advocacy groups then try to impose these global norms down from the international organizations upon the United States. How much easier it is to enact gun control, for example, when advocacy groups can simply bypass the states, Congress, and the U.S. political process to do so.

If Hillary Clinton wins the presidency this November, we can only expect more efforts at evading the Constitution. In a sign of the importance of these ideas to the Democratic-party worldview, President Obama appointed Yale Law School professor Harold Koh to serve as legal adviser to the State Department, where he was a member of Clinton’s inner circle. Koh is the very model of the modern American lawyer who wants to bring international law, without democratic process, into the U.S. political system. He clerked for Justice Harry Blackmun, worked as a young lawyer in the Reagan Justice Department, and became a professor of law at Yale before serving as a political appointee in Bill Clinton’s State Department. In his scholarly work, Koh has only praise for what he calls “transnational legal process,” and he has supported lawsuits seeking to have courts enforce international law against the U.S. government and American corporations, even though Congress had never enacted legislation on the issues involved.

In several articles and speeches, Koh has defended the work of “transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, and interpretive communities” — anyone, it seems, other than an official democratically elected to represent the people — to “internalize international legal norms into domestic law.” Koh has described this process as “downloading” international law into U.S. law, as if the former were higher wisdom and America a sort of primitive tablet computer. Koh returned to Yale Law School after Clinton left the State Department, but in a Clinton presidency, his star would likely rise even higher in the executive branch or even on the Supreme Court. The contrast could not be sharper between traditional understandings of American sovereignty and Koh’s new world of “transnational legal process.” So strong are his views about the binding nature of international law that in 2004 he linked Iraq, North Korea, and the United States as “the axis of disobedience.”

To protect individual liberty, the Constitution’s framers created a political system sharply at odds with Europe. They believed American sovereignty was precious precisely because it preserved our right to govern ourselves contrary to the prevailing wisdom. “The men who founded our republic did not aspire to emulating Europeans, much less the rest of the world,” Scalia wrote. With the passing of Justice Scalia, our nation not only lost one of its greatest defenders of American sovereignty, but also received a clear reminder of what is at stake this November.

– Mr. Bolton is a senior fellow at the American Enterprise Institute and a former U.S. ambassador to the United Nations. Mr. Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute.

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