Adapted from remarks delivered by Alan Sears to a group of people interested in law & justice issues in San Diego March 2004. From our perspective at the Alliance Defense Fund, and with our religious liberty and marriage and the family allies, we are becoming increasingly concerned about yet another growing legal attack on the Constitution and our nation’s sovereignty.
With the lawlessness of the mayor’s actions in San Francisco, officials in New Mexico, Oregon, and New York, it seems that every day, everywhere we look, there is another assault from the homosexual and other radical legal agendas on the rule of law.
But I suggest you haven’t seen anything yet.
I want to focus discussion on our concern for the growing use of foreign, international law, in the domestic courts of the United States on matters involving United States citizens, and the growing push for this from many sources, on many issues.
I am going to cite some of the extra-judicial comments of members of the Supreme Court, some of the judicial references, the growing push in legal scholarship and law reviews, and finally mention the ACLU, some at the ABA, and other radical activist organizations, particularly the advocates of homosexual behavior, and their avowed strategy to use more and more foreign law in domestic courts involving American citizens, and American law.
We believe this is contrary to the Constitution and our nation’s history and heritage.
Robert Bork said in his latest book,
“International law is not law but politics. For that reason, it is dangerous to give the name ‘law’, which summons up respect to political struggles that are essentially lawless.” *** The result is that,
“international law becomes one more weapon in the domestic culture war.”1 Justice Sandra Day O’Connor, 2003, quote:
“Because of the scope of problems we face, understanding international law is no longer just a legal specialty, it is becoming a duty.” 2 “The impressions we create in this world are important and they can leave their mark.”3 Justice Ruth Bader Ginsburg, 2003, quote:
“On the question of dynamic versus static, frozen in time constitutional interpretation, the Court’s opinion [in Lawrence 2003] instructs: “They [who drew and ratified the constitution] knew that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress...” And on respect for the “opinions of [Human]kind” the Court [with Justice Kennedy writing for the majority]4 emphasized: ‘The right the petitioners seek in this case [which was sodomy] has been accepted as an integral part of human freedom in other countries. [Citing] the leading European Court of Human Rights opinion.” 5 More from Justice Ruth Bader Ginsburg, 2003, quote:
“[America’s] ‘island’ or ‘lone ranger’ mentality is beginning to change. Our justices...are becoming more open to comparative and international law perspectives."6 Justice Stephen Breyer, 2003, quote:
“...the world is growing together...through commerce and globalization...its becoming more and more one world of different kinds of people. ...“whether our constitution and how it fits into the governing documents of other nations I think will be a challenge for the next generation.”7 In 1988 Justice John Paul Stevens, in a death penalty case (involving teenagers), cited a report from Amnesty International, bringing a stinging rebuke from Justices Scalia and Rehnquist that this was
“totally inappropriate as a means of establishing the fundamental beliefs of this nation.” As Scalia strongly noted, quote,
“...it is a Constitution for the United States of America we are expounding.” 8 In 2002, a brief was filed by American diplomats arguing their missions abroad were “difficult” because of U.S. practices regarding the death penalty. The High Court in decreeing state death penalties were not properly applied under the Constitution for the mentally retarded, noted “world opinion.”
Justice Scalia, joined by Justices Rehnquist and Thomas, dissented, quote:
9 But the Prize for the Court’s Most Feeble Effort to fabricate “national consensus” must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called “world community,” and respondents to opinion polls. [Ante, at 11—12, n. 21. I agree with the Chief Justice, ante, at 4—8 (dissenting opinion), that the views of professional and religious organizations and the results of opinion polls are irrelevant.] Equally irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people. “We must never forget that it is a Constitution for the United States of America that we are expounding. … [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.” Thompson, 487 U.S., at 868—869, n. 4 (Scalia, J., dissenting). In 2003 in determining that the University of Michigan’s racial preferences would continue, Justice Ginsburg, cited by Justice O’Connor with apparent approval in a speech later that year, wrote:
10 The Court’s observation that race-conscious programs “must have a logical end point,” ante, at 2345-2346, accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, see State Dept., Treaties in Force 422—423 (June 1996), endorses “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.” Annex to G. A. Res. 2106, 20 U. N. GAOR Res. Supp. (No. 14) 47, U. N. Doc. A/6014, Art. 2(2) (1965). But such measures, the Convention instructs, “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.” Ibid; see also Art. 1(4) (similarly providing for temporally limited affirmative action); Convention on the Elimination of All Forms of Discrimination against Women, Annex to G. A. Res. 34/180, 34 U. N. GAOR Res. Supp. (No. 46) 194, U. N. Doc. A/34/46, Art. 4(1) (1979)11 In 2003, in discovering a right to sodomy heretofore unknown either by the authors of the Constitution and most other Americans, Justice Anthony Kennedy, as I noted, cited the European Court of Human Rights as authority.
And not to be outdone by the federal courts, the Supreme Judicial Court of Massachusetts in its amazing discovery
12 last November of the right to same-sex “marriage” – or as they put it,
“We construe civil marriage to mean the voluntary union of two persons as spouses to the exclusion of all others” – cited a decision by the provincial Court of Appeal for Ontario.
13 Five of the sitting justices of the United States Supreme Court have now expressed, in some detail, their support for the growing use of foreign, or international law in American jurisprudence in helping to interpret what the United States Constitution means and how it should be applied.
Of course there has been an arbitrary and selective approach to which international law is used – picking the nation or court which appears to best fit the desired outcome – favorable references have been made by American jurists to opinions from such courts as those of Jamaica and Zimbabwe.
This is all despite the radical conflict in legal traditions between the United States – with its English Common Law tradition, belief in a higher law and of inalienable rights endowed by a Creator – and the much different sources for foreign law – including the Roman law tradition of much of Europe – needless to mention other countries that have differing beliefs in both the source of, and substance of, the rights of man.
It is as if our justices forgot that one of the reasons for massive immigration to this country was for the protection its Constitution has afforded – for all people – like no other.
An outpouring of scholarship on this issue has begun. A number of law review articles, which we know often give way to judicial activism, have been published.
The
Bibliography Resource represents just a fraction of what’s going on in the media, the courts, and the law reviews.
The trial lawyers have not only discovered what many call a “legal Rip Van Winkle” in the Alien Tort Claims Act of 1789, but have begun a steady stream to the courthouse doors to try to expand its application and use. Of note is that the Ninth Circuit’s en banc review – and pending decision – of the Unocal case involving a U.S. lawsuit on the rights Burmese workers – in Burma – and the Bush Administration’s brief on the legal issues.
In 1999 homosexual activists held a major planning session at King’s College, University of London.
14 One hundred and fifty law school professors, trial lawyers, judges, and homosexual activists discussed strategies to go international with their focus on the use of courts to bypass the democratic process. Conference participants included Clinton Appointee United States District Judge Deborah Batts (S.D.N.Y.) and judges currently or previously serving the European Court of Human Rights, the U.K., Australia, Canada, South Africa, and Europe. A theme of the conference was not just same-sex marriage – but the steps beyond – including the abolition of government recognized marriage entirely.
Last fall the ACLU held a national training conference in Atlanta (with Judge Myron Thompson of Roy Moore infamy as a speaker) on “Human Rights at Home: International Law in U.S. Courts” advocating expanded – “forceful and persistent” – use of foreign law in U.S. Courts on behalf of U.S. clients – particularly to “advance women’s rights (as they define them), children’s rights (as they define them), and gay, lesbian, bi-sexual, and transgendered rights” (as they define them).
Another effort launched by 50 leftist groups is a network to work to end what they call “U.S. exceptionalism” and to make the U.S. ever more submissive to international law.
Finally I would note that among the radical advocates of homosexual behavior, the mantra of “international law,” the citation of courts in Canada and Europe, and claims of “international human rights to marriage and sex partnering” have become a constant element of their pleadings, litigation, and other strategies.
What can we do about this?
- We can educate others who share a common concern, the religious liberties groups, as well as grassroots conservative and libertarians groups who need to be much more aware of this concerted push.
- ADF, as our resources permit, is planning to launch a monitoring project for citations in cases involving our issues of religious liberty, the sanctity of life, and preserving marriage and the family. We welcome others to join in this effort as well as taking it to a broader scale.
- We intend to file amicus briefs or other pleadings as appropriate in cases where efforts are being made to inject international, foreign law. We would welcome allied organizations to be parties amicus, as well as for other legal groups to join in the briefing of these cases.
- It would be good to encourage the Bush Administration to weigh in from Solicitor’s Office as often as possible.
- We must increase use of the media and alert our fellow citizens of these concerns.
- A legal training conference is in the planning stages; from this conference and other efforts we would like to see law review articles produced.
Get involved
There are many ways that you can be part of helping to fulfill this dream:
Footnotes1 Neuhaus, Richard John, The Public Square, First Things, January 2004
2 Justice Sandra O'Connor, Remards, Southern Center for International Studies, October 28, 2003
3 Ibid and Chronwatch
4 Lawrence v Texas, 123 S. Ct. 2472 (2003)
5 Justice Ruth Bader Ginsburg, Remarks, Idaho Law Review, 2003
6 Ibid.
7 Justice Stephen Breyer, ABC News This Week, July 7, 2003
8 Thompson v Oklahoma, 487 U.S. 815 (1988)
9 Atkins v Virginia, 536 U.S. 304 (2002)
10 Grutter v Bollinger, 539 U.S. 306 (2003)
11 The City of San Francisco "adopted" this convention in 1998
12 Goodridge v Department of Public Health, November 18, 2003
13 Halpern v Toronto (City), 172 O.A.C. 276 (2003)
14 Legal Recognition of Same-Sex Partnerships: A conference on National, European, and International Law, July 1-3, 1999. Sponsored by the Center for European Law at the School of Law and others.