Prof. Franck writes in relevant part:
Scalia is a good originalist in Lawrence, and a lousy one when it comes to "federalism" and other Loch Ness monsters of the Constitution.
Comment: It is not so clear to me that Scalia is a "good originalist" in Lawrence. He fails to recognize that the Eur.Ct.H.R. cases cited in the Court's opinion reflect customary international legal obligations with which the 14th Amendment's due process clause must be construed because of the Constitution's status as a treaty --something which both Federalist and Anti-Federalist recognized. See Federalist No. 5; Anti-Federalist No. 75. Customary international law is evolving -- also something that the Founding Fathers recognized. See Ware v. Hylton (1796). Good originalism recognize that the Constitution's provisions (viz., due process clause) must be construed in conformity with this evolving customary international law. Scalia misconstrues the constitutiona! l relevance of the Eur.Ct.H.R. cases by indicating that they are merely foreign law -- not evidence of the U.S.' customary international legal obligations. This is particularly contrary to originalism because the Founders specifically saw European customary international law as binding on the U.S.
Comment: It is not so clear to me that Scalia is a "good originalist" in Lawrence. He fails to recognize that the Eur.Ct.H.R. cases cited in the Court's opinion reflect customary international legal obligations with which the 14th Amendment's due process clause must be construed because of the Constitution's status as a treaty --something which both Federalist and Anti-Federalist recognized. See Federalist No. 5; Anti-Federalist No. 75. Customary international law is evolving -- also something that the Founding Fathers recognized. See Ware v. Hylton (1796). Good originalism recognize that the Constitution's provisions (viz., due process clause) must be construed in conformity with this evolving customary international law. Scalia misconstrues the constitutiona! l relevance of the Eur.Ct.H.R. cases by indicating that they are merely foreign law -- not evidence of the U.S.' customary international legal obligations. This is particularly contrary to originalism because the Founders specifically saw European customary international law as binding on the U.S.
By the way, how is Scalia's federalism lousy?
Francisco Forrest Martin
