-Caveat Lector-
is in a libertarian law professor's blog
AOL
link: The Volokh
Conspiracy
Text URL:
http://volokh.com/
Quote - with links to the original
article:
"
[Eugene Volokh, 10:35
AM]
Signing treaties may erode the Bill of Rights: American decisions
to sign on to international treaties may erode the protections of the Bill of
Rights, for instance the First Amendment. Yes, the Supreme Court has
supposedly said otherwise, in Reid v. Covert (1957): "[N]o agreement
with a foreign nation can confer power on the [federal government] which is
free from the restraints of the Constitution" (speaking of the Bill of
Rights). But it turns out that this supremacy of the Bill of Rights really
isn't that strong: The President and the Senate can, in the long run,
"insinuat[e] international law" that would create "a partial displacement of
constitutional hegemony" (for instance, with "an international norm against
hate speech . . . supply[ing] a basis for prohibiting it, the First Amendment
notwithstanding"). "In the short term," international norms would and should
be "relevan[t] . . . in domestic constitutional interpretation." But "In the
long run, it may point to the Constitution's more complete
subordination."
These quotes are not from
some anti-internationalist "The U.N. is coming to take away our liberties"
conservatives. They are from a recent article by Prof. Peter Spiro, one of the
leading American international law scholars; the article, called Treaties,
International Law, and Constitutional Rights, was published in the
Stanford Law Review, which is generally seen as one of the top 3
legal journals in the country.
Prof. Spiro
is both defending the notion that treaties should be able to trump
constitutional rights -- "If some constitutional norms are more
appropriately set at the international level" (and he believes they are),
"that should justify a treaty power that, in some cases, overcomes even the
Bill of Rights" -- and predicting that treaties will over time do so.
Courts, he acknowledges, would try to "maintain[] the formal hegemony of the
domestic constitution," but "this formal hegemony may disguise a loss of
domestic constitutional autonomy over the long run." "Constitutional rights
'adjusted' by treaty norms are changed by them. The Constitution is read to
conform with the treaty."
Of course, some
people may be quite happy about this: They might well conclude that parts of
the Bill of Rights should be superseded by "international" norms. They
may think the international lawmaking community (mostly, I suspect, composed
of European legal and political elites, plus of course those segments of
American legal and political elites that are involved in this field) will
indeed reach better results than those provided for by the current
understanding of the U.S. Constitution.
But
those of us who disagree should vigilantly watch for, and resist, the
"displacement of constitutional hegemony" that the article welcomes. We should
insist that the President and the Senate consistently stress in all the
treaties they sign and ratify that our agreement to the treaty is constrained
by our Constitution, and that the treaty should be read to conform to the
Constitution, and not the other way around. We should criticize judges who
rely on international norms in interpreting American constitutional provisions
(in this respect, reading Prof. Spiro's article has led me to reconsider some
of my views in this post, and to view with much more alarm reliance on
international law in American constitutional interpretation). And we
should assiduously publicize the ways in which international rules are, in our
view, worse than ours, for instance to show that foreign bans on "hate speech"
actually end up banning (as American First Amendment thinking would have
suggested) a good deal of speech that deserves to be protected (see, for
instance, this
post by David Bernstein).
Our Constitution
is far from perfect, both as written and as interpreted. I think courts should
indeed change their views on many issues, and people should try to press
courts to do so. But this should be our decision as Americans. We should not
cede our control over our constitutional rights to international bodies,
international professional elites, or even to our own President and
Senate.
In any event, that's just my opinion.
Read the
Stanford Law Review article, which is fortunately quite readable
and not terribly long (30 law review pages) for a different
view.
"
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