Elena Kagan on International Law (Very Short Post)

by Peter Spiro

It doesn’t look like she’s written anything even remotely related to international law (it is surprising how little she’s written on anything, for an academic).

On the now-standard question of what role IL should have in constitutional interpretation, we have this out-on-a-limb answer from her confirmation as Solicitor General:

I do not believe that international law (assuming it has not been incorporated into domestic federal law) can prevent federal and state governments from broadening the application of the death penalty should they wish to do so.  In a case like Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) [finding use of the death penalty unconstitutional for rape], the appropriate question is whether the Eighth Amendment of the U.S. Constitution forbids the application of the death penalty to a particular kind of crime, not whether international law does so.

Correct response!  Expect more of the same come this summer.  That will make it four nominees in a row that will have disclaimed the relevance of IL to constitutional interpretation.  It becomes an interesting case study in how the nomination process and hearings check the Court.  I doubt either Kagan or Sonia Sotomayor (“I will not use foreign law to interpret the Constitution”) would dare so much as drop a footnote to international authorities in defining constitutional rights for some time to come.


One Response

  1. Response…
    NO!  Incorrect response.  For example, Article VI, cl. 2 of the United States Constitution mandates that “all” treaties are supreme law of the land for supremacy purposes.  That’s “all” unless you are a radical judge who would re-write the language of the Constitution.  Moreover, vis a vis the treaty power, the 10th Amendment is of no consequence, since the treaty power is expressly delegated to the federal government and is also expressly denied to the States (so per terms of the 10th Amend., it is of no applicability).  That main issue would be whether the death penalty is proscribed by a treaty or CIL — certainly not by a treaty that the U.S. has ratified.

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