Globalizing the ‘Supreme Law of the Land’?

By Christopher Armstrong

In a rare television interview on ABC’s Sunday morning public affairs show "This Week," Supreme Court Justice Stephen Breyer commented in July that "[t]hrough commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people. And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations."

Figuring out whether the U.S. Constitution "fits into the governing documents of other nations" is a challenge of the next generation? James Madison must be turning over in his grave.

It may be, in fact, correct that we are becoming "more and more one world of many different kinds of people," and it may also be true that deciding "how [we’re] going to live together" is a challenge facing the next generation. That is plausible, but the job of figuring out how we’re all going to live together is not one to be made by nine unelected, and hence unaccountable, lawyers with life tenure. It is the job of the political branches, the President and the Congress, both of which are elected by the people and remain directly accountable to them day-to-day and election-to-election.

The question of "whether [and how] our Constitution fits into the governing documents of other nations" is both irrelevant and disturbing. Why should this generation or any other care whether our founding and most fundamental governing document, the longest operating of its kind, is in complete harmony with the litany of laws and resolutions passed by the likes of the European Union and the United Nations? The United States – like any independent nation, including the member states of the UN or EU – retains its sovereignty, which means that if the President and the Congress wish to agree to treaties or conform U.S. law to those abroad, they are free to do so under the Constitution. But just like state and federal laws, any treaty or legal change that conflicts with the U.S. Constitution is overridden by it.

Putting this new balance-of-powers theory – balancing away what the Constitution says for what other countries say – into practice, several Justices have increasingly looked beyond our borders to decide what our domestic law means. Two of the most controversial decisions of the U.S. Supreme Court’s past term serve as examples.

In the recent case invalidating Texas’ sodomy law, Lawrence v. Texas, Justice Anthony Kennedy referenced both the European Court of Human Rights and the British Parliament in his majority decision.

Justice Kennedy wrote that the reasoning in Bowers v. Hardwick, an earlier case upholding Georgia’s sodomy law, had been "rejected by the European Court of Human Rights." He also referred to the "Report of the Committee on Homosexual Offenses and Prostitution," a committee which had recommended the repeal of sodomy laws to the British Parliament in 1957. Justice Kennedy’s references were meant to rebuff Chief Justice Warren Burger’s references to historical international precedent in his concurrence to Bowers v. Hardwick, in which Burger cited ancient Roman law, courts during the English Reformation and Sir William Blackstone in support of outlawing homosexual acts. The international citations in both cases were cherry-picked from international opinion, which is both irrelevant to text and meaning of the Constitution and a perverting force in its interpretation.

In this year’s landmark affirmative action case, Grutter v. Bollinger, Justice Ruth Bader Ginsberg filed a concurring opinion which referenced international law as supporting and consistent with the majority’s decision to allow racial preferences in admissions to institutions of higher education. Justice Ginsburg’s opinion opened with the statement, "The Court's observation that race-conscious programs 'must have a logical end point,' accords with the international understanding of the office of affirmative action." Likewise, the University of Minnesota Human Rights Center filed an amicus curiae brief in support of race-based admissions, arguing that foreign "treaties are helpful for interpreting United States standards."

Even if we are willing to cede the quasi-comprehensible argument that "treaties are helpful for interpreting United States standards," it remains unseen how this is the province of the judiciary. The task of the judiciary is to interpret America’s duly enacted laws, not to conform them with those enacted by foreign nations unaccountable to and unrepresentative of the American citizenry.

The question of why Americans would want their constitutional heritage altered by the lack thereof in the rest of the world remains unanswered. Is it proper to attempt to reconcile Saudi Arabia’s complete lack of women’s rights with our Fourteenth Amendment? Does the land-grabbing dictatorial kleptocracy of Zimbabwe have something to teach us about the proper understanding of the Takings Clause in the Fifth Amendment? Of course not, because for the moment those justices prone to look beyond our shores for constitutional guidance only acknowledge the parts of the globe where current legal precedent "fits with" these justices’ own – Eurocrats that prefer a centralized, economically liberal system of governance.

There is no question that the road to globalization will be a bumpy one, and indeed will probably be the central task of this and the next generation. But the thought of our nation and its Constitution being steered down the bumpy road of globalization by Justice Breyer & Co. is a frightening one. Surely, the American people should have more to say about rewriting the Constitution than those who don’t even live under its grand design.

Christopher J. Armstrong is a law student at the Catholic University of America Columbus School of Law and is interning at the Center for Individual Freedom this fall.

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