Volokh’s Call Against Judges Who Use International Law

by Peter Spiro

Eugene Volokh has an interesting post over at VC on emerging international norms against hate speech (and hate speech against religions in particular). Though I won’t do the argument justice here, the basic line is that these norms are bad and (more perhaps controversially) actually dangerous. (See also his related posts here, here and here.)

For the latter proposition, he works from this Stanford Law Review piece of mine to the effect that contrary to Reid v. Covert and the conventional wisdom that the Constitution is supreme against international norms, there’s an alternative account in which international rights have in fact come to trump constitutional ones. In response, Eugene suggests

criticiz[ing] judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro’s article has led me to reconsider some of my views in this post, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on “hate speech” actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected.

I think this is a lost cause over the long run, which is to say nothing about the merits of hate-speech bans or any other particular international norm. There are too many ways in which international law now insinuates itself to mount this sort of centralized defense. For instance, if the states start to pick up on an international norm, it will eventually be indigenized, making its way upwards to the organs of the national government (think what’s happening now with Kyoto). Ditto for non-state actors (think universities and hate-speech codes). I think the Supreme Court is likely to desist from the open use of IL sources for the moment, in the face of the push-back after Roper, but that won’t stop justices from incorporating IL norms under cover. Over the long run resistance will be futile.

Which all might be by way of a call to arms of a different sort: to try to influence international norms at the international level, rather than wasting time trying to shut them at the border. The US is obviously a powerful actor in the making of international law. It won’t win every battle (and this particular one may be a loss) but over the long run that will present the better strategy for protecting (and projecting) our conception of constitutional liberties.

UPDATE: Ilya Somin has these thoughts in response. I want sometime soon to set out more detailed thoughts on the piece he’s co-authored with John McGinnis on the incorporation of international law. For the moment, I’d just say that unlike Ilya and John I would take account of the many non-formal (or at least non-federal) channels through which IL is making itself felt in the US. Just because it’s not working its way through the federal government doesn’t make it illegitimate. Is there a process problem with California adopting Kyoto’s standards? With a university adopting international standards on hate speech (again, leaving the merits aside)? My point is that this is where the action is. Formal incorporation (political or judicial) comes in the way of a mopping-up exercise or as an afterthought, after the real battles have been fought in the trenches.

http://opiniojuris.org/2007/02/07/volokhs-call-against-judges-who-use-international-law/

13 Responses


  1. I think the Supreme Court is likely to desist from the open use of IL sources for the moment, in the face of the push-back after Roper, but that won’t stop justices from incorporating IL norms under cover. Over the long run resistance will be futile.

    Provide a reason as to why the latter is true. If the electorate disagrees with the concept of incorporating IL norms, and elects a president who then appoints Supreme Court justices who share the same opinion, I see no reason why IL norms should ever prevail.

  2. ‘Resistance is futile..’ We are the Borg, eh?

    I do agree with you that, in the long-term, international law will be and is making an indelible mark on US law. I do also think, however, that the US, as any country, can legitimately strive for striking a different balance between some human rights, as it does here with discrimination and freedom of speech. I do not think it is contradictory, for example, for the US to conform to global opinion on the matter of juvenile death penalty, but for it to insist on its own tradition of near-absolute freedom of speech and not conform there.

  3. Marko, Yes, good point. This is where the margin of appreciation can come into the picture. I don’t know enough about the hate speech context to know what that margin might allow, but it is important to keep in mind that IL doesn’t always require homogenity.


  4. I think the Supreme Court is likely to desist from the open use of IL sources for the moment, in the face of the push-back after Roper, but that won’t stop justices from incorporating IL norms under cover.

    This is, indeed, the extent of what Justice Scalia has argued for, in his dissent in Roper and elsewhere. In particular, I seem to remember an exchange in a discussion somewhere between him and Justice Breyer, in which the latter Justice defended his right to draw inspiration from foreign and international sources, and Justice Scalia explained the scope of his disagreement by saying: ‘[Alright], but don’t put it in your opinions’.

    I could, if really pushed, see the merits of not referring to any foreign or international sources at all in constitutional interpretation (more so with respect to foreign than international material).

    [I agree with what I take to be inherent in Marko Milanovic’s point, namely that the objection to the use of international law is often inspired by a wrong understanding of what international law really says on the subject]

    But I absolutely fail to see why it should be legitimate for judges to use non-US material, and then fail to disclose the fact in their judgments. This is to turn the work of judges into a black art known only to those privy to the actual deliberations (9 people at most in the SCOTUS), and to utterly dissolve any pretext that the authority of the judges has anything to do with the quality of their reasoning.

    If the principles controlling a judicial decision, and any act of judicial legislation that may be achieved at the same time, are not transparent, then it is very difficult to see why the judges, with their somewhat slender democratic legitimacy, should have their very considerable powers.

    Also, intellectual honesty and academic integrity requires, of judges as of students, that they disclose where they get their points. This should be the same whether the source is Supreme Court precedent, other US precedent, a law review article, a blog post, or some foreign material, whether authoritative in its own jurisdiction or not.

    In my opinion, if judges are going to use any kind of material, they should always do so openly, whether their colleagues and parts of the academia go ballistic or not. And as for the latter, if the result and the stated aim of their criticism is not so much to put an end to the methodology they so abhor, but to merely consign it to the unacknowledged background of judicial decisions, then such criticism seems to me to be unprincipled in the extreme.

  5. Peter, have you been to a Federalist Society meeting recently? Opposing the use of international law is the number one rallying cry of legal conservatives right now. They are incredibly passionate about it; point out the controversy and faces immediately turn red. Mentioning opposition to international law leads the crowd to break into spontaneous applause, and it takes awhile for the applause to stop.

    Of course, international law may be hip among law professors. But the Federalists outnumber you by 1000 to 1, and they’re the ones that are appointing the judges right now.

  6. My sense, and I could be wrong about this, is that no one is arguing that we should follow international or foreign law generally. Rather, they want to pick out certain aspects of foreign/international law that they approve of, and then argue that we should follow those (e.g., as noted above, international views of the death penalty versus free speech). To me, this undermines the argument quite a bit, as people just seem to be looking for confirmation of their positions.

  7. @Emperor (or, er, Your Majesty),

    You are indeed wrong. Neither Peter nor myself were arguing that international law should be followed selectively. That is, at least for me, totally unacceptable.

    Our point was that international (human rights) law itself leaves a significant freedom to each state to adapt the rules of international law to its own domestic peculiarities. In the European context, that freedom is called the margin of appreciation. As Peter pointed out, the universality of human rights does not demand total uniformity.

    This is especially so when (1) it is necessary to balance two conflicting rights, and (2) when there is no global/European/inter-American (depending on the treaty) consensus on an issue. The juvenile death penalty is a good example, which was outlawed before Roper by every single country in the world except the US and Somalia. Free speech is a completely different matter, as hate speech regulation comes in many, many different forms, and as I think the First Amendment is much more fundamental for the peculiarities of US constitutionalism than the question of whether the permissible age for the death penalty is 16, as it was before Roper, or 18, as the entire world demands.

    Another venue that human rights law leaves open for states is for them to make reservations to specific parts of treaties that they disagree with, as for instance the US did in respect of the ICCPR. But this brings us to the extremely complicated area of the validity of such reservations.

  8. I’m no expert here, so forgive me if I mis-state your views on this. As I understand it, you are saying that there are hierarchies within international law. A norm adhered to by virtually all states is more powerful then one held by just a few. That seems like a logical approach to me.

    My concern is that many people (not necessarily you) seem to cite international and foreign law selectively. For example, in the gay marriage debate, people cite to the few foreign jurisdictions who have allowed gay marriage as support for allowing it in the US, ignoring the fact that the vast majority of the world does not accept it. (Personally I think it should be allowed, but that’s a different issue).

    In your original post, you said that it was OK for the “US to conform to global opinion on the matter of juvenile eath penalty, but for it to insist on its own tradition of near-absolute freedom of speech and not conform there.” I took that as a selective approach, but if I understand your second post, the distinction is based on the level of support for each norm. As I said, I’ll buy that distinction. But outside of that distinction, I’m skeptical of any selectivity. To me, it’s all or nothing. It’s fine if people want international/foreign law to apply, but they can’t just pick the laws they like. If they do, it’s a completely unprincipled and not very credible approach.

  9. A couple of thoughts in response to these interesting comments:

    To Tobias’ observation questioning the sub rosa use of international law sources by judges, I agree completely, but I’m afraid that won’t stop it from happening, which is another way of saying IL will insinuate itself one way or another.

    To Federalist: thanks for the report from the trenches. I had some idea that this was already a rallying call, but no, I haven’t been to a meeting lately, and so was unaware of the intensity of the opposition on this front. But I’m not sure that it’s responsive to my point, which is to the effect that whatever happens on the bench won’t stanch the slippage here.

    As for “The Emperor”, your last observation suggests another emerging development here, namely, the discovery on the part of conservatives that IL can sometimes serve to advance their agendas. The line here, playing off the last decade of constitutional interpretation, is that “we’re all internationalists now.” Just as originalism doesn’t always support conservative positions (in war powers debates, for example), IL won’t always advance progressive ones.

  10. I’m not sure I agree that “we’re all internationalists.” My general sense is that there are three basic groups:

    1) Those who cite international law when it supports their views and ignore it where it does not

    2) Those who think international law should either trump domestic law or play an important role in its interpretation and formation, regardless of whether they agree with the substance

    3) Those who think international law should play at most a minor role in the interpretation and formation of domestic law, regardless of whether they agree with the substance

    Most of what I read, in both the popular press and from legal experts, falls into 1). People in 2) are true internationalists who believe, for various reasons, that the international is inherently good. People in 3) are true sovereigntists who believe, for various reasons, that the international is inherently bad. But people in 1) really only care about the particular issue they are interested in (e.g. to prohibit gay marriage or to allow it) and cite to international/foreign sources of law that support their view. Thus, they are only “internationalists of convenience.” (The same observation probably applies to “originalists” as well).

  11. With regard to your update:

    Is there a process problem with California adopting Kyoto’s standards? With a university adopting international standards on hate speech (again, leaving the merits aside)? My point is that this is where the action is. Formal incorporation (political or judicial) comes in the way of a mopping-up exercise or as an afterthought, after the real battles have been fought in the trenches.

    I don’t think there are many people who object, leaving aside the merits, to legislatures or even universities adopting policies that are similar to those in foreign jurisdictions or under international law. The problem arises when U.S. courts interpret U.S. law based on international or foreign law. It’s essentially a problem of twin democracy deficits. The court system is anti-majoritarian enough without bringing in international or foreign law. When you bring in international or foreign law, it seems like the American people have no say whatsoever. Raising the issue of legislatures and university actions obscures this a bit.


  12. I’m not sure I agree that “we’re all internationalists.” My general sense is that there are three basic groups:

    1) Those who cite international law when it supports their views and ignore it where it does not

    2) Those who think international law should either trump domestic law or play an important role in its interpretation and formation, regardless of whether they agree with the substance

    3) Those who think international law should play at most a minor role in the interpretation and formation of domestic law, regardless of whether they agree with the substance

    I suggest you add a third category, those who believe in international law and treaty law in general, but believe customary international law has no role in domestic decisions.

  13. I suggest you add a third category, those who believe in international law and treaty law in general, but believe customary international law has no role in domestic decisions.

    Yes, you’re probably right. Not all international law is equal.

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