Rep. Sensenbrenner on Foreign Law and Constitutional Interpretation

Rep. Sensenbrenner on Foreign Law and Constitutional Interpretation

Rep. James Sensenbrenner, the chairman of the House Judiciary Committee, gave a speech on Monday at Stanford that has drawn some criticism for its vaguely threatening reference to an Inspector General of the federal courts. What is interesting about the speech hoever, is that one of Sensenbrenner’s main beefs with the judiciary is its citation of foreign and international law in constitutional interpretation. This suggests that this issue is not going to go away and is becoming a central part of the “judicial activist” critique that is already being levelled at the federal courts.

Now it is easy to dismiss this as overwrought and overblown, but I think Sensenbrenner’s speech actually touches on the most objectionable part of the judicial fad for citing foreign law in constitutional cases.

Federal courts have increasingly utilized foreign sources of law, as well as international opinion to interpret the United States Constitution. If this trend takes root in our legal culture, Americans might be governed by laws of other nations or international bodies that Congress and the President have expressly rejected. Inappropriate judicial adherence to foreign laws and tribunals threatens American sovereignty, unsettles the separation of powers, presidential and Senate treaty-making authority, and undermines the legitimacy of the judicial process.

. . .

To support the Court’s invalidation of the law of 20 states, the Roper majority cited among other things, the U.N. Convention on the Rights of the Child, a treaty in which the United States government expressly reserved “the right . . . to impose capital punishment on any person (other than a pregnant woman) . . .” when signing. Even more troubling is the fact that the United States Senate never ratified this Treaty. As a result, the Court was expressly citing a Treaty to which the United States has never formally assented. Remember the first 3 words of the Constitution’s preamble: “We the People.” Public servants swear an allegiance to uphold the Constitution of the United States, not to look to French popular opinion or the ruling of a court in Zimbabwe.

Now I don’t agree with everything Sensenbrenner is saying, but he does have a point about the judicial citation of treaties that the U.S. government has expressly rejected. This doesn’t violate “sovereignty” (whatever that means) but it does seem to run into serious separation of powers concerns. Effectively, the Court is bringing the U.S. into compliance with an international treaty that the Senate has refused to endorse. No wonder Congress is mad.

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If the Supreme Court had instead cited half a dozen articles in American law reviews saying the same thing, would anyone be complaining?
Eric M. Freedman
Hofstra Law