RIP Justice Antonin Scalia: The Misunderstood Internationalist

by Julian Ku

Like many lawyers who study constitutional law, I was saddened when I heard last night of the unexpected death of U.S. Supreme Court Justice Antonin Scalia. The internet being what it is, commentators have already offered their quick takes on Scalia’s substantial and multifaceted jurisprudential legacy (indeed, I think we’ve already moved on to debating his replacement). Most of these analyses have been fair, but I have been a little irritated with the glib and mostly inaccurate descriptions of Justice Scalia’s attitude toward international law.

For instance, Rosa Brooks writes at Foreign Policy that while many in the U.S. will mourn Justice Scalia’s passing,

The global legal and judicial communities, however, will mostly be indulging in joyful private choruses of “Ding, Dong, the Witch is Dead.” Or maybe not so private.

There was no love lost between Justice Scalia and foreign jurists. Scalia was famously dismissive of foreign and international law, which he considered good enough for, well, foreigners — but not for the great United States. “I doubt whether anybody [in the United States] would say, ‘Yes, we want to be governed by the views of foreigners,’” he scoffed in 2005.

Brooks’ piece highlights one of Scalia’s more famous intellectual crusades: to reject the use of foreign and international law in the interpretation of the U.S. Constitution. Scalia was the leading critic of using foreign and international law to interpret the Constitution and, in due course, he has often been derided as a judicial sovereigntist or even as a know-nothing contemptuous of all foreign or international law.

I have always felt this criticism of Justice Scalia was unfair for at least two reasons.

First, Justice Scalia was an “originalist” with respect to constitutional interpretation. To him, this meant that interpreters should privilege the original meaning of the Constitution’s text over any other sources of interpretation. Scalia was famously skeptical of legislative history in statutory interpretation, and he was fairly skeptical of even of using the Constitution’s drafting history in constitutional interpretation. He wanted judges to look at the text, standing alone, as much as possible.

Given these jurisprudential commitments, it is odd to criticize Scalia for rejecting the use of foreign and international law in constitutional interpretation. Unless one could show that foreign and international law was relevant to determining the original meaning of the constitution’s text, Scalia believed it was irrelevant. And so he criticized judges who relied upon such sources, just as he criticized them for relying upon their own personal preferences or on what he thought were simply the latest intellectual or social fads.

Secondly, Scalia was actually one of the most cosmopolitan members of the Supreme Court. Few justices enjoyed foreign travel more, and he was always willing to go abroad to lecture at foreign law schools or in front of foreign bar associations. Indeed, he was in Hong Kong just last week giving lectures and he had planned to teach in France this summer.

More importantly, Scalia was not afraid or contemptuous of international law when that was the governing law in a case before him. Indeed, when he started law teaching at the University of Virginia, comparative law and private international law were his primary research and teaching interests. And as Duncan pointed out in a post back in 2007, Justice Scalia was not unwilling to interpret statutes to conform to international law or treaties, nor was he unwilling to rely upon foreign judicial opinions interpreting international treaties. He did not think foreign judicial decisions or international law was irrelevant or meaningless. He simply objected, on grounds of intellectual consistency, to using those sources when interpreting the U.S. Constitution.

I did not agree with Scalia on every constitutional question. And no doubt he should take his lumps for mistakes he may have made. But he was not a judicial sovereigntist or a constitutional know-nothing. And contra Rosa, I rather think many foreign jurists and academics (especially those he met personally) will miss this remarkably effective and important representative of American jurisprudence in the world.  I certainly will.

4 Responses

  1. Dear Sir,

    allow me to ask a precision about your post: do you imply that the consequence of this so-called “internationalist” position of Justice Scalia is that, if I think that my domestic law needs to be interpreted in a way that disregards binding international law on the matter (not only treaties, but also customs and maybe ius cogens) that is referred to by my Constitution, that’s a correct interpretation?!?!?!?!?

    Take just one of the multiple erroneous interpretations given by Justice Scalia: its take on the legality of torture.
    His interpretation is legally preposterous (beside being morally outreageous).
    Here are the two alternative explanations why, the first assuming he had a moderate knowledge about international law, the second one even assuming he’s basically ignorant about international law.

    1) Anyone who has a basic knowledge about international law knows Art. 27 of the Vienna Convention on the Law of Treaties (to which the US is bound, plus it’s customary international law), so the US, that ratified the Convention against Torture, is bound by its provisions, in particular not only the absolute legal ban on torture but its clear definition of torture as a particularly grave cruel punishment, which can inter alia be referred back to the 8th Amendement of the US Constitution.
    Let’s aside the legal norms on torture in customary international law and ius cogens, it would definitely too sophisticated an approach…

    2) Even if someone doesn’t know the Vienna Convention and how the interplay between international and domestic norms plays out on the basis of international law, it is sufficient to read Art. 6 of the US Constitution to know that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby”.
    This allows anyone to the same obligatory reference to the CAT and its provisions.

    It is not about “originalist interpretation”. It’s about knowing or not what is written in the Constituion.
    As you requested in your post, I just showed that, yes, the Constitution itself refers to international law as relevant in the issue of torture.
    But Justice Scalia, for ignorance or for other reasons, disregarded it.

  2. Does no one want to comment on the outrageous fact that Antonin Scalia has plunged this country into a constitutional crisis by failing utterly to take care of his own health? There is constitutional irresponsibility of the highest magnitude.

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