The New Isolationism -- Senator Cornyn Joins Scalia in Rejecting All Reference to Foreign Law

Senator John Cornyn (R - Texas (so you just know this is going to be good)) has introduced a Senate resolution for consideration, which would deny the Court the prerogative to use foreign law in its decisions affecting constitutional law except insofar as as it serves an originalist interpretation. Why, you ask? Well, his alarmist press release tells the tale:

“Step by step, with every case, the American people may be losing their ability to determine what their criminal laws shall be – losing control to foreign courts and foreign governments,” Cornyn said. “And if this can happen with criminal law, it can also spread to other areas of our government and of sovereignty.”

Heavens!!!

Below, I take the resolution apart premise by premise.

Expressing the sense of the Senate that judicial determinations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States.

First, note, that it not-so-subtly indicates a clear opinion as to the task of the Supreme Court as arbiter of the Constitution, advising the Court to advert to foreign law only where it "inform[s] an understanding of the original meaning of the Constitution." This is obnoxious in two regards: a) originalism is by no means the dominant school of constitutional interpretation and b) this appears to say, you can only use this source of law you've previously used to support decisions I and my party find untenable when you're supporting our preferred outcomes. Not that this doesn't resemble the general tenor of the GOP right now -- for one example among many, consider it's rampant and fiscally reckless expansion of government and its intrusion into matters traditionally managed at the state level -- it does. Nevertheless, in its results-oriented undertone, it reflects the flagrant contempt in which the party holds the judiciary generally. There is, of course, a more modest reading -- that this Resolution is careful to permit the Court to refer to the Anglo-American legal tradition in discovering the original meaning of the Constitution, something the Court has done many times before. But I'm in no mood to grant benefit of the doubt right now, nor have I been given one reason to do so in recent memory.

Whereas the Declaration of Independence announced that one of the chief causes of the American Revolution was that King George had "combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws";

Now he invokes the Declaration of Independence itself, noting the American Revolution's impetus deriving from King George's subjection of the country "to a jurisdiction foreign to our constitution, and unacknowledged by our laws." I'm as melodramatic as the next cat, but everything about this invocation is offensive. No one is subjecting us to anything. It's true that the Court, in an effort to develop a sense of where our moral compass might lay, has sometimes sought guidance -- not governance -- in legal and social trends found elsewhere, but this is a far cry from subjecting us to anything. And even to the extent that it has done so, it has done so at the hands of the Court interpreting the law of the land -- its constitutional function, to which all Americans are subjected as a matter of course.

Whereas the Supreme Court has recently relied on the judgments, laws, or pronouncements of foreign institutions to support its interpretations of the laws of the United States, most recently in Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002), Lawrence v. Texas, 539 U.S. 558, 573 (2003), and Roper v. Simmons, 125 S. Ct. 1183, 1198-99 (2005);

The three cases mentioned are those finding the death penalty to be cruel and unusual punishment when applied to the mentally retarded (Atkins), those who committed their crime of conviction when under 18 (Roper), and the case finding it unconstitutional to criminalize homosexual sodomy among consenting adults (Lawrence). It is beyond cavil that the majority opinions in all three cases made some reference to international norms in reaching its holding.

Cornyn suggests that in the three focal cases that didn't come out the way the far right wanted the Court "relied" on foreign law. Nothing could be further from the truth. The evolving standards of decency relied upon in Atkins and Roper had nothing whatsoever to do with foreign law. For rhetorical support, the majorities in those cases did note the consonance of their decisions with foreign law, but only in those western cultures from which our own culture is inescapable derived, and again not in any sense reliant thereon. Indeed, in Roper the section on foreign law followed what I read as the dispositive section of the opinion, which had everything to do with legal trends at the state level and nothing to do with foreign law. If anything, the majority's reference to foreign law was a reminder of just how pathetic is the company we keep in executing juveniles -- a rogues gallery of countries we want nothing to do with in virtually every other regard. This premise also must be rejected as disingenuous and misleading.

Whereas the Supreme Court has stated previously in Printz v. United States, 521 U.S. 898, 921 n.11 (1997), that "We think such comparative analysis inappropriate to the task of interpreting a constitution ...";

Here's the problem -- if, and as I've hopefully illustrated that's a big if, the Court indeed relied on foreign law in the three cases named above, those cases all followed Printz and hence speak more authoritatively. Stare decisis is not about invariant law forever and anon, as the Court has often said. The law as articulated by the Supreme Court changes, in ways even the right would be hard-pressed to disparage (notwithstanding its revanchist rhetorical posturing), and if Printz is properly applied here -- a separate question I needn't get into -- surely it's irrelevant in the face of three subsequent opinions rejecting (Cornyn would have it) the very premise for which Printz is cited. Put another way, if Printz governs in the way suggested, then Plessy v. Ferguson can come back to haunt us to. Thank goodness it doesn't work that way.

Whereas the ability of Americans to live their lives within clear legal boundaries is the foundation of the rule of law, and essential to freedom;

The "clear legal boundaries" premise is a red herring. Nothing in the three cases excoriated has done anything but advance the cause of freedom. Clear legal boundaries are required by things like the ex post facto clause and the constitutional prohibition on bills of attainder. Nothing the three cases cited did was akin to the abuses these constitutional provisions were designed to prevent, unless it's somehow punishment to deny the bloodthirsty their day eating popcorn across the plexiglass from some 15-year-old receiving a lethal injection. And even if that is a "punishment" of sorts, it's not a legal punishment of the sort the Constitution protects against, as Cornyn insidiously suggests with this bowdlerized suggestion of changing criminal rules. Liberalizing sentencing rules mid-stream is something that has happened a hundred times without an outcry; the evolving understanding of the Eighth Amendment is nothing more than that.

Whereas it is the appropriate judicial role to faithfully interpret the expression of the popular will through the Constitution and laws enacted by duly elected representatives of the American people and under our system of checks and balances;

Here we find the ephemeral majoritarianism of a party in power with a slim majority. To the extent the Constitution reflected a popular will, it reflected one over 200 years old. It is what it is -- a powerful, brilliant document -- but what it isn't is a step by step user's manual for a nation of 300 million people. The Framers had the wisdom to leave play in the joints by using such nebulous terms as "cruel and unusual punishment," "life, liberty, and property," due process, and so on. I wouldn't argue that all of these terms are so open-ended as to lose meaning, but the Framers knew the difference between a civil system and a commonlaw system, knew how to draft statutes and constitutions and how to avoid overlap, and in particular they knew the danger of short-lived majorities that would wreak havoc with a salutary stability, a steady incremental progression of the law that would reflect the steady incremental progression of a country. If the laws passed by the duly elected representatives were so sacrosanct there would be no need for a constitution, no need for a judiciary. The Framers did not frame some cosmic practical joke; they did not hold with the tyranny of majorities, or mass movements that would level everything in their path every few years. This premise, too, is fatuous.

Whereas Americans should not have to look for guidance on how to live their lives from the often contradictory decisions of any of hundreds of other foreign organizations; and

Puh-leeze. The Court hasn't adverted to hundreds of foreign organizations; it's mentioned in passing that, by comparison to most of our peer states, we are hopelessly backward when it comes to matter of sex and punishment. This hardly hands over the reins to petty despots. And in the matters so decided, no one has had to look anywhere, for the reasons stated above: this would be a legitimate concern if the Court were inventing new crimes by reference to foreign laws, but it simply is not a legitimate concern when such authorities are mentioned to reinforce reasoning liberalizing criminal punishment or allowing people to have sex with any consenting adult they choose to.

Whereas inappropriate judicial reliance on foreign judgments, laws, or pronouncements threatens the sovereignty of the United States, the separation of powers, and the President’s and the Senate’s treaty-making authority:

Huh? Sovereignty? No. Separation of powers? No. Treaty-making authority? How? the only bearing on treaty-making authority I can discern is the Court's noting that our execution of juveniles created some problems for at least one international treaty, but merely by reading our Constitution in such a way that incidentally (and it was incidental, insofar as the Court simply did not rely for its ruling on any treaty ramifications) brings us more closely into line with various treaties that are out there hardly interferes with the government's treaty-making authority. Just because you say it doesn't make it so.

Now, therefore, be it

Resolved, That it is the sense of the Senate that judicial interpretations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States.

And again, don't do it unless it permits us to continue to uphold the anachronistic biases of our Framers where they match our own.

Ironically, Cornyn accuses his opponents of precisely this sin:

This is not a good faith effort to bring U.S. law into global harmony. I fear that this is simply an effort to further a particular ideological agenda. Because the record suggests that this sudden interest in foreign law is political, not legal; it seems selective, not principled. U.S. courts are following foreign law inconsistently – only when needed to achieve a particular outcome that a judge or justice happens to desire, but that is flatly inconsistent with U.S. law and precedent.

Hi, Pot? This is the kettle. You're black.

But Cornyn has another agenda. Granted, it's one wholly separate from the one reflected in the Senate resolution, but helpfully his above-cited press release, if that's what it is, reproduces the entirety of his floor remarks from Sunday. They're long, but a few bear reproducing.

In 2002, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the commonwealth of Virginia could no longer apply its criminal justice system and its death penalty to an individual who had been duly convicted of abduction, armed robbery, and capital murder, because of testimony that the defendant was “mildly mentally retarded.” The reason given for the complete reversal in the Court’s position? In part because the Court was concerned about “the world community” and the views of the European Union.

This simply is not true -- the "views" of the European Union had little to do with the rhetoric of the opinion, and absolute nothing to do with the grounds of decision.

Take another example. The U.S. Supreme Court has long held that the American people, in each of their states, have the discretion to decide whether certain kinds of conduct that has long been considered immoral under our longstanding legal traditions should or should not remain illegal. In Bowers v. Hardwick (1986), the Court held that it is up to the American people to decide whether criminal laws against sodomy should be continued or abandoned. Yet once again, because some foreign governments have frowned upon that ruling, the U.S. Supreme Court has seen fit to take that issue away from the American people. In 2003, in a case called Lawrence v. Texas, the U.S. Supreme Court held that the state of Texas could no longer decide whether its criminal justice system may fully reflect the moral values of the people of Texas. The reason given for the complete reversal? This time, the Court explained, it was in part because it was concerned about the European Court of Human Rights and the European Convention on Human Rights.

Two problems here: first, he skips right over the Court's decision in Romer v. Evans, in which the Court denied Colorado voters the right to codify practices discriminatory against homosexuals, notwithstanding that such a vote presumably reflected the majority sentiment of Coloradans that homosexuality was immoral. Furthermore, in the years since Bowers the Court never once cited it favorably in any subsequent majority opinion. If the Court didn't take much pride in it, why should Cornyn.

Then he moves to his concerns moving ahead, which involve the case Medellin v. Dretke, which must face concerns regarding the jurisdiction of the International Court of Justice. This has nothing to do with the cases discussed above -- here, international law is directly at issue, whereas in those cases the Court merely mentioned it in passing in dictum, language of no legal effect.

The real sin here is Cornyn's shameful attempt to confuse the above issues with issues directly involving international law, particularly the ICJ. The two simply have nothing to do with each other, and the language of the Resolution appears to have little or no bearing on issues surrounding the ICJ. By masking the true intent of the resolution behind rhetoric concerning the ICJ, to which he will likely find a more sympathetic audience, he attaches a sort of effete roll-back of judicial review like a rider to an issue of far more imminent and complex concern.

Cornyn concludes, rousingly I'm sure he imagined:

I believe that the American people do not want their courts to make political decisions; they want their courts to follow and apply the law as it is written. The American people do not want their courts to follow the precedents of foreign courts; they want their courts to follow U.S. law and the precedents of U.S. courts. The American people do not want their laws controlled by foreign governments; they want their laws controlled by the American government, which serves the American people. The American people do not want to see American law and American policy outsourced to foreign governments and foreign courts.

I wonder if even he knows what he is talking about by this point. American courts do apply the law as written, and if "cruel and unusual" had been comprehensively defined we wouldn't be having these arguments. American courts follow U.S. law and its precedents. American laws are not now nor will any time soon be controlled by foreign governments. And god knows, neither American law nor American policy are outsourced -- if they were, maybe one country would be on our side for reasons of political concurrence rather than geopolitical expediency, biting the strop all the way.
In a humorously a propos side-note, it was business as usual at the Supreme Court today, where Justice Scalia sneered at an attorney's heretical reference to the Royal Navy during oral argument. Maybe Cornyn doesn't have so much to worry about just yet.