Francisco Martin wrote:
Prof. Funk writes: "Justice Ginsburg's concurrence in Grutter referred
to the International Convention on the Elimination of All Forms of
Racial Discrimination as evidence of "international understanding," not
as a US treaty obligation.>
Comment: I do not understand your points here. The U.S. is a party to
CERD; therefore, CERD is a U.S. treaty obligation. Ginsburg recognized
this when she stated in Grutter that the U.S. had ratified the CERD.
She did not "recognize" any "obligation." She expressly stated that the
convention was evidence of international understanding. To imply that
she suggested any "obligation" arising from the Convention is not just
misleading; it is dishonest.
Prof. Funk continues: "The Court in Lawrence referred to the European
Court of Human Rights cases (and unnamed other nations' domestic cases)
as "evidence of values we share with a wider civilization" to attack
Justice Burger's contrary statements that condemnation of homosexual
sodomy is "firmly rooted in Judaeo-Christian moral and ethical
standards," see Lawrence, 123 SCt at 2481, and to rebut Bowers to the
extent that it "relied on values we share with a wider civilization,"
see id, at 2483.
Comment: I was not referring to the Court's opinion but to Scalia's
dissent in Lawrence (and Rehnquist's in Atkins.) Scalia should have
properly characterized the ECHR cases as international law
(specifically, evidence of U.S. customary international legal
obligations) -- not foreign law.
In your posting to which I referred, you stated that in Lawrence the
"law cited" (actually the "law" cited were European Court of Human
Rights cases as well as foreign national cases) was "reflective of a
U.S. customary international legal norm." My point was that in
Lawrence, the Court did not cite to any "law" from these foreign (non
U.S. cases); it noted these decisions as reflective, not of law, but of
values held by western democracies. Thus, both the Court and Justice
Scalia were in agreement that these "foreign" cases were not evidence of
U.S. customary international legal obligations. They were in
disagreement as to whether these "foreign" cases might be relevant to
whether the values of western civilization could not abide a right to
homosexual sodomy.
Mr. Martin continued: This should not be a controversial
matter. Otherwise, it's like saying Kansas v. Colorado is
foreign law for Florida.
Huh? Kansas v. Colorado, the famous long standing dispute over the
meaning of the Arkansas River Compact? I fail to see the relevance of a
U.S. Supreme Court decision acting under its original jurisdiction to
the effect of a foreign court decision on United States' courts.
Obviously, the Supreme Court's decisions on matters of federal law are
not foreign law in state courts, any more than federal law is foreign
law in state courts. But I am obviously missing something here.
Indeed, what I am saying is that the
"foreign" (i.e, ECHR) cases are international law cases providing
strong EVIDENCE of U.S. customary international legal
obligations.
Even I would agree that foreign cases may be evidence of international
customary law. Whether they are "strong" evidence depends upon a number
of factors. Whether customary international law, assuming that a given
norm is established as such, is an obligation upon domestic U.S. courts
also depends upon a number of factors. The extent to which customary
international law can trump domestic U.S. law is an unknown. There are
few if any domestic cases decided upon the basis of customary
international law that was in conflict with the otherwise applicable
domestic law.
Prof. Funk appears to be making the same mistake as
Scalia and Rehnquist by making international law equivalent to foreign
law.
Mr. Martin has me wrong. If I am making a mistake, it is the same
mistake as the Court in Lawrence and Justice Ginsburg in Grutter.
International and foreign law are interesting and may provide some
enlightenment as to generally accepted norms, but they are not law in
domestic Constitutional law cases.
Bill Funk
Lewis & Clark Law School
