04 Dec Constitutional Comparativism and the Voluntary School Integration Cases
To the best of my knowledge the issue of constitutional comparativism did not come up in the voluntary school integration cases that were argued today. (Please correct me if I am wrong. See transcripts here and here). But there were two important amici briefs that squarely presented the issue. (See here for the brief of Human Rights Advocacy Groups (“HRAG Brief”) and here for the brief of Interested Human Rights Clinics (“IHRC Brief”)).
There are numerous problems with the briefs. First, a fundamental argument in the briefs is the remarkable proposition that “the U.S. Constitution should be interpreted consistently with international law….” HRAG Brief at 5. This is a maximalist approach to constitutional comparativism that seeks uniformity between international human rights law and constitutional civil liberties. This is an explicit call for the U.S. Constitution to be in international equilibrium. I have articulated in some detail the problems with such an approach in this recent article.
Second, both briefs incorrectly state the Charming Betsy doctrine. It is simply wrong to cite Charming Betsy for the proposition that “[f]rom its earlier opinions, the Supreme Court has stated that the Constitution and relevant statutes should be read consistently with treaties and international law.” IHRC Brief at 6; HRAG Brief at 1. Conflating a “constitutional Charming Betsy” with a statutory “Charming Betsy” is an uncommon and fundamental mistake. As I have argued in a forthcoming article in the Ohio State Law Journal, it makes no sense under the Supremacy Clause to argue that the Constitution should be read to conform to treaty obligations in the same way that one might argue that statutes should be read consistent with international law.
Third, the briefs articulate an improper motive when they state that recognizing the validity of interpretations from foreign and international courts ensures the Court’s continued presence and leadership in the international arena of human rights issues. IHRC Brief at 9-11; HRAG Brief at 5. The Court’s constitutional mandate is to resolve cases and controversies, not engage in foreign diplomacy. Enhancing the Court’s “prestige and influence” abroad should not be viewed as a legitimate factor in constitutional decisionmaking.
Fourth, the IHRC Brief relies on “positive discrimination” cases from the ECHR, and other affirmative action cases coming out of Canada, India, and South Africa. IHRC Brief at 11-18. But, of course, the standards applied in those countries are not uniform or necessarily the same as our standards, underscoring that any such comparisons would be to compare apples and oranges. For example, they concede that the ECHR is asking only if positive discrimination favoring women or minorities serves a “legitimate purpose.” That is a far different standard than we apply in affirmative action cases. And unlike the U.S. Constitution, the Canadian Charter, the Indian Constitution, and the South African Constitution each have an express “affirmative action for disadvantaged groups” clause. IHRC Brief at 14-17. Obviously it is extraordinarily difficult to compare in any meaningful way constitutions that have such textual distinctions.
Fifth, the briefs rely on international law, but do so in controversial ways. IHRC Brief at 19-26; HRAG Brief at 7-15. They cite the relevant treaties, but cannot point to any explicit language in those treaties authorizing affirmative action. So instead they rely on human rights bodies–the ICCPR Human Rights Committee and the CERD Race Committee–to fill in the gaps. Both Committees interpret the treaties to allow affirmative action, and thus the briefs read international law through the lens of the Human Rights and Race Committees. The argument thus devolves into the unusual suggestion that the Supreme Court should interpret the Constitution in the same way that human rights committees have interpreted comparable human rights treaties.
Sixth, the IHRC Brief discounts if not ignores the relevant RUDs for these treaties. (See the CERD RUDs here and ICCPR RUDs here) These RUDs include the “non-self-executing” declaration, the “federalism” understanding, and the “constitutional” proviso. The effect of these RUDs should dramatically undermine arguments that seek to give constitutional effect to these treaties in these cases.
It will be interesting to see whether the Court relies on constitutional comparativism in deciding these cases. Frankly, I rather doubt it.
While it sounds like some of the amicus briefs you cite are not perfect, they do reflect the concern for the status of disfavored minorities around the world which has been a human rights concern for years. The approaches in other countries and even the standards used in evaluating those approaches can help inform an understanding of how a state can go about addressing these types of difficulties. While those experiences can not be necessarily on all fours with the American experience, the tensions and concerns in these countries might help to inform the United States as it looks at its own set of tensions and concerns. I always like to mention dangerious foreign law like the English case of Hadley v/ Baxendale which was incorporated into US common law after 1854 and flourishes today. The essence of the discussion will always be – what kind of America will there be? Given the appalling lack of diversity in the American public international law community it seems it would behoove us to make sure that educational opportunity is done in a way to ensure that disfavored minorities can more frequently rise in this area also. One Condoleezza Rice, or Colin Powell,… Read more »
Roger, Thanks for ferreting out the international and comparative law issues buried in the amicus briefs. I’d like to focus on one aspect of your post. Assume that a provision of the US Constitution is ambiguous. One interpretation of that provision, if adopted by the Court, would violate a non-self-executing human rights treaty that the US has previously ratified. Is this fact relevant to the Court’s interpretation of the constitutional provision? One answer, of course, is that, under the Reid v. Covert line of cases, a treaty cannot contravene an express provision of the US Constitution, or, presumably, the US Supreme Court’s interpretation of that provision. If the meaning of the provision had been settled at the time the US ratified the human rights treaty, presumably the US would have taken a reservation to the relevant article of the treaty or not ratified the treaty. But I don’t think US courts have ever faced a situation in which US obligations under a previously-ratified treaty collide with a subsequently-developed interpretation of the Constitution. This scenario seems to me to present a stronger, although not unproblematic, case for a “constitutional Charming Betsy” canon than many of the other possible scenarios for such… Read more »
Roger, you say that the briefs “cite the relevant treaties, but cannot point to any explicit language in those treaties authorizing affirmative action.” I haven’t read the briefs, but I would think CERD art. 1(4) is pretty explicit: “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.” Cheers, John
John,
Thank you for your comments. You are right to point out that provision of CERD. Article 4 of CEDAW is similar, stating that “adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.” I should have been more clear in my original post. Both treaties authorize special measures, but those special measures cannot lead to the maintenance of separate rights or separate standards for different racial or gender groups. Thus, those provisions are quite confusing as to their precise application regarding affirmative action. It would have been more accurate to say that the treaties authorize certain types of special government measures, but prohibit the establishment of separate rights or separate standards. The briefs rely on interpretations by the human rights committees to argue that international law would authorize the specific type of affirmative action at issue in this case.
Roger Alford