Commentary Magazine


International Law

To the Editor:

At the heart of Andrew C. McCarthy’s “International Law v. United States” [February] is a series of dichotomies: Americans, he suggests, can assert the right to self-determination through representative government or follow transnational elites who impose legal duties from abroad. We can take pride in a noble particularism, or we can join the self-deluded who fancy themselves citizens of the “so-called international community.” We can stand by our constitutional traditions, venerable and pure, or we can suffer their adulteration by Europhiles peddling international and foreign law.

But we do not live in a world of simple dichotomies. Nor did those who wrote and ratified our Constitution. Though the framers rejected much of the Old World, they continued to borrow from it. They were bold experimenters, but they and early American jurists readily incorporated into the American legal system widely shared understandings about the nature of law, sovereignty, and territoriality. These understandings, sometimes articulated and sometimes not, were drawn from English common law, natural law, classical antiquity, European legal systems, and the law of nations. From the founding to the present, American law has always drawn from and contributed to the wider legal world.

The relationship between international law and our Constitution is not superficial. From the 18th-century law of nations came pervasive conceptions of sovereignty, comity, and reciprocity. In the libraries of Federalists and anti-Federalists were well-thumbed copies of Blackstone, Grotius, Huber, and Vattel. These authors and the established practices of European states influenced not only the drafting of Article I and its reference to the law of nations but other constitutional provisions: the Due Process Clause, the Full Faith and Credit Clause, Article III’s grant of jurisdiction to federal courts. The international legal obligations of a young country in need of trade and allies assumed special importance to the authors of The Federalist and to the first Congress.

This cross-fertilization did not end in 1789. The list of American judges who have looked to international and comparative law in interpreting our own statutes and constitutional provisions is a Who’s Who of great jurists, beginning with John Marshall, Joseph Story, and James Kent. Story in particular was prodigious in bringing European principles of private international law to the U.S. His Commentaries on the Conflict of Laws: Foreign and Domestic (1834) greatly influenced how American courts in the 19th century exercised jurisdiction, both in international cases and purely domestic ones. Early Supreme Court cases arising from trans- national controversies—Charming Betsy (1804), U.S. v. Smith (1820), Antelope (1825)—became important precedents on fundamental aspects of the U.S. legal system: interstate extradition, limits on legislative power, statutory construction.

The list of “importers” of international and foreign law also includes Oliver Wendell Holmes and Learned Hand. Both looked to international law as an aid in interpreting congressional intent and the geographic reach of American statutes. In American Banana (1909), Holmes concluded that U.S. antitrust laws did not apply to foreign cartels because of a global consensus as to limits on the extraterritorial application of a country’s laws. Four decades later, in a landmark departure from Holmes’s precedent, Hand applied a similar interpretive approach: “We are not to read general words, such as those in [the Sherman] Act, without regard to the limitations customarily observed by nations upon the exercise of their powers.”

Other importers of international law included Justices Benjamin Cardozo, Robert Jackson, and John Harlan II. In a New York Court of Appeals case, Cardozo, working from Marshall’s Antelope opinion, concluded that international law shed light on one state’s leeway in fulfilling the constitutional duty to apply the laws of another. Jackson’s approach to comity and his studied weighing of competing sovereign contacts in Lauritzen v. Larsen (1953), an international maritime case, greatly influenced subsequent jurisprudence on how courts should choose the applicable law in wholly domestic disputes. And in Sabbatino (1964), Justice Harlan considered the extent to which the Act of State Doctrine had deep roots in international law before going on to transform the doctrine in ways that have become important to domestic facets of federalism and separation of powers.

In short, those today who pause to consider how other legal systems confront complex issues are not doing something “downright unthinkable,” as Mr. McCarthy would have it. They are tracking some very giant footsteps.

Paul R. Dubinsky

Wayne State University Law School

Detroit, Michigan

 

Andrew C. McCarthy writes:

Paul Dubinsky’s stage-setting “dichotomies” hold that Americans can either side with me by persevering in constitutional self-government or follow transnational elites and “suffer [the] adulteration” of their traditions. But these are false dichotomies. I never claimed that Americans may not follow transnational progressives or even alter our fundamental law. I happen to think this would not be wise, but the point of my article was that there are legitimate legal processes for doing so, and that these are not being followed.

America could become France tomorrow. If it did so by way of its own choices and in compliance with the Constitution’s requirements, I would not have a thing to complain about, regardless of how daft I found such a transformation. In his paean to the glories of international progressivism, Mr. Dubinsky misleadingly suggests that its incremental grip on our lives is simply our “legal system” in operation—“system” being the benign substitute for “choice.” But Mr. Dubinsky’s gospel is being spread by stealth and judicial fiat rather than by democratic persuasion.

No one would dispute that the framers borrowed from a wide variety of international sources. But ultimately, their handiwork was democratically ratified. Nor have I suggested that when the application of international law is indicated—and the Constitution expressly contemplates its application—judges should shun it. Mr. Dubinsky points to some such judicial decisions and intimates that they legitimize the whole internationalist project. But when international law has been made pertinent by the political process, that is democracy in action, not a license for allowing judges to decide when foreign pieties should trump self-determination.

In any event, my essay was about nongovernmental organizations and other transnational progressives using their own dubious constructions of international law and human-rights law to restrict or reverse democratic choices, and about courts using foreign law to divine the meaning of our constitutional provisions. Concerning these matters, Mr. Dubinsky has virtually nothing to say.

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