Prof. Funk writes: > [Ginsburg in Grutter] 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.
Comment: This is an irrelevant distinction. Are you really telling me that Ginsburg does not believe that CERD legally binds the U.S. -- that a treaty that the U.S. ratified is not legally binding on the U.S.?! Prof. Funk continues: > 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. Comment: I now understand your point. However, my point was directed at Scalia in his dissent who should have referred to the ECHR cases as international legal -- not "foreign" -- cases. Prof. Funk continues: > > 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. Comment: I chose Kansas v. Colorado because the Supreme Court described itself in that case as an international tribunal applying international law. (I could also have used Pehallow v. Doane.) We do not describe Kansas v. Colorado as foreign law in the same way that we should not be describing ECHR caselaw as foreign law. (Foreign law usually means foreign domestic law.) The Constitution as a multilateral regional treaty established an international tribunal (viz., U.S. Supreme Court) in a similar way as the Articles of Confederation established boards of commissioners, the ECHR established the European Commission and Court of Human Rights, etc. Prof. Funk continues: > 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. Comment: I agree. Prof. Funk continues: >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. Comment: This is not quite right. It is pretty clear from state and federal case law that customary international law trumps state law. There is a division of authority over whether customary international law trumps federal statutes and executive orders. When the Supreme Court has spoken in dicta, it has said that customary international law (concerning the laws of war) trumps Congressional acts. Prof Funk continues: > > 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. Comment: I believe that some of our disagreement arises over the fact that I was addressing Scalia and Rehnquist, whereas you were addressing Ginzburg. Prof. Funk continues: > 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. Comment: How do you square this statement with your earlier statement appearing to recognize that customary international law and foreign law may be binding on the U.S. in certain cases? Francisco Forrest Martin
