13 Jul Get Ready to Parse Sotomayor on Foreign Law
So far in opening statements from Sotomayor confirmation hearings, we have John Cornyn and Tom Coburn condemning the use of foreign law in constitutional interpretation. You can be sure that they will follow up in colloquys — in Cornyn’s, possibly his first. (Michael Chertoff made it one of his suggested questions on the Times op-ed page this morning; and one might also expect the likes of John McGinnis and Ilya Somin to touch on the subject as witnesses for the Minority, given their (co)writing in the area.)
You can also be sure that Sotomayor’s response on the issue will have been well rehearsed. What will she say? Easy money would be on a “it is above all our Constitution” line to lead, with some allowance for international practice by way of an empirical aid. I can’t imagine she’ll acknowledge any greater place for it. That’s progress from the unalloyed rejections of Roberts and Alito during their hearings, but hardly sets the stage for any more Ropers, at least not in the short term.
We can hope for, but surely not expect, better reasoning in Supreme Court opinions.
I honestly don’t understand this “International Law & the Constitution” debate going on in the US… I mean, Sen. Cornyn wants to ask Judge Sotomayor about foreign/int’l law in Constitution interpretation, because he says that the US Constitution was “ordained and established by ‘We the people of the US'”, and thus one cannot use a UN Treaty as a basis to interpret US Constitutional Law; yet, doesn’t the UN Charter start with “We the proples of the UN”?
I know my argument is simplistic and maybe I simply just don’t know enough about the US Constitution to get the problem, or whatever. But I just don’t think its such a terrible thing to use foreign law to complement one’s approach to domestic law.
Response…
One can hope that Sotomayor will be prepared to say:
The laws of humanity have always been part of our constitutional debate, that a “decent respect to the opinions of mankind” requires that we conduct ourselves in a way that merits respect.
It is doubtless too far afield but worth recalling that Gov. Morris of New Jersey at the Federal Convention denounced broadly the proposal to enhance the votes of the slaveholding states by adding 3/5 of a vote for every slave owned:
“The admission of slaves into the Representaiton when fairly explained comes to this: that the inhabitant of Georgia and South Carolina who goes to the Coast of Africa and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondage, shall have more votes in a government instituted for the protection of mankind, than the Citizen of Pennsylvania or New Jersey who views with a laudable horror, so nefarious a practice.”