Volokh’s Call Against Judges Who Use International Law
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.