Sandra Day O'Connor and International Law

I heard there was a speech given by Justice O’Connor that said International Law should replace the Constitution in Supreme Court cases. Did she really say this this? Anybody know where I can get a copy of the speech? Was the sotry just misreporting what she said?

Firstly, Welcome to the Boards!

As for the speech, it was given Oct. 28 at the Southern Center for International Studies in Atlanta. I can’t find a copy of it, but apparently it raised quite a few eyebrows, and there is no shortage of commentary about it on the web. The following Google link, are hits when searching for a selection of the speech quoted in a paper, so there are lots of link to start looking for info.
Links

As far as I can tell, having not yet had any coffee, she said in part:

If I find the speech I’ll put it up.

That is to say, I have not yet had any coffee. Whether or not Ms. O’Connor had any coffee prior to the speech, I do not know.

Apparently she did - Irish.

I don’t know why anyone is surprised; many countries place international law on the same footing as domestic law, or sometimes even above domestic law (Russia, for example). The U.S. Constitution does, as well.

Why would the U.S. ratify a treaty knowing it was in disagreement with U.S. law? Any international law or Constitutional scholars out there?

Cite please.

What the US constitution does is incorporate international treaties (which are one of the foundations of international law) which the USA has duly ratified as part of US law.

The US Supreme Court has held that the US government is bound by the whole body of international law, not only treaties.

I could expound further if we were in GD.

Article VI, clause 2, US Constitution.

I think that clause just means that treaties made by the federal government are binding on the states and supreme over state law, not that some law promulgated by the EU is relavant to US law.

What is legitimately scary is that some justices are beginning to rely on foreign legal precedents to support their reasoning. I think they did this in the case that found a fundamental right to practice homosexual sex. This reliance on foreign precedents is scary for a variety of reasons, not the least of which is that the SCOTUS has taken making the law murky to a new level.

A big problem with “international law” is that it doesn’t really exist. Of course there are treaties, which are really nothing more than a contract between two countries. There is no international legislature, no international elections, no international executive or police, no international judiciary. If one breaks a contract in a specific jurisdiction, there is a court that will enforce ascertainable remedies to that contract. To say that the breach of a treaty can be enforced in a similar way is quite a stretch. And to call something that cannot be readily ascertained “law” is sophistry.

I couldn’t find a transcript of the speech, but it seems that much of the ado stemmed from this article in the Atlanta Journal-Constitution, and this one from the Washington Times.

LemonThrower: EU law is not international law. Not even in the EU. We call it ‘supranational law’, meaning it is above national law in Europe, but is not international law.

International law does exist. It is no law in exactly the same way as national law, but there is literature, discussion, and precedent. There are international courts of justice, in particular the International Court of Justice.

Of course, you may keep your opinion that law means something more specific than that. The good professors at law schools who are teaching International Law are not going to be impressed. (see for example Harvard International Law Journal, Yale Journal of International Law, and their editors)

There are several things wrong with your argument here.

First, it is unquestionably part of the Constitution that a treaty made in accordance with it is the law of the land. See the cite above. A breach of a treaty to which the U.S. is a party is enforceable in courts under the laws of the United States.

Secondly, any court looks for binding** precedent in order to make its decisions conform to the law of the land. In the absence of binding precedent, it seeks out guiding precedent. The Supreme Court has no binding precedents – it is free to overturn any precedent when five or more members agree that it should be overturned. But that leaves it at sea so far as guiding precedent is concerned. It can review the decisions of lower courts or its own previous decisions for precent – but it is not limited to doing so. If a novel issue is raised, it can examine how France or Australia’s highest court resolved it in view of that country’s constitutional guarantees, and then, if it so chooses, employ the reasoning as modified to match our own constitutional guarantees. Note that it is free to do so, not that it must do so.

The nature and enforceability of international law is something that serious legal scholars have spent enormous amounts of time analyzing. Dismissing it altogether because the answers are not clearcut is absurd, IMHO.

Third, “some justices are beginning to rely on foreign legal precedents” is absurd – every court in America has been doing this for the duration of this country’s existence. There is a little matter called the Common Law that you may have heard of.

Fourth, “the case that found a fundamental right to practice homosexual sex” does not exist. In the case in question, presuming you’re referring to Lawrence v. Texas, the majority found in the Due Process Clause a right to autonomy in personal relationships that is not subject to the police powers of the states. That the particular instance of the states invading this autonomy involved a couple having a gay sexual relationship was not the issue at stake. There are problems with this decision, which I will not go into, in terms of constitutional interpretation. But nowhere does it guarantee “a fundamental right to practice homosexual sex” in any explicit terms. You might do well to read the opinions rather than some commentator’s views on what they are supposed to say.

Common law is not foreign law. Its origins arose in England during Henry I’s reign, wherein he set forth that all the various laws in England should be governed by a common law, common to all of England. It consists of all case laws, and even now in the USA we still have common law being set by case law, but usually when we refer to “the common law” we are referring to the common law of England which this country adopted when we won our independence - all of this country except for Louisiana.

>> Common law is not foreign law

I do not think anybody has said otherwise. The point is that the main basis for the Common Law was custom and precedent (which is also one of the pillars of International law) and it was and is a perfectly working system of law, just like international law is. Denying the existance of International Law is just plain ignorant. there are entire college courses dedicated to it and there are plenty of court judgments based on it, including the SCOTUS.

I thought Polycarp said otherwise, when he said that we are not just “beginning to rely on foreign legal precedents.”

If I may add a comment: it looks as if this thread has gotten side-tracked. The occasion was about U.S. law (or court judgements) being influenced by international and foreign court decisions.

The issue about influence of international courts has been satisfactorily answered by refering to the recognition of international law (and thereby international court judgements) in U.S. law. However, this doesn’t say anything about recognizing foreign (as opposed to international) courts’ judgements.

FWIW I do not see much of an issue here. Courts listen to arguments. One possible (though not decisive) argument is that many people who have given the issue proper thought think something is right. Of course you still want the argumentation behind their standpoint, but it is suitable material to consult. Foreign court decision may (I hope we can agree on that) fall into this category of material for possible arguments.

So SCOTUS may very well examine foreign court decisions; it surely will never consider itself bound by them.

I cited the EU as an example of foreign law, not international law.

I agree that the supremacy clause applies to US treaties. I see nothing in the supremacy clause that authorizes US courts to rely on foreign precedents as was suggested above.

I submit that international law is a misnomer. I am aware it exists, but its existence is very different from national law - there are not elected legislators or an executive, etc. That is why SCOTUS’ reference to precendents outside the US legal system concerns me.

As for a US court enforcing a US breach of a US treaty, I think that begs the question. What happens if the US breaches a treaty it made, and then a US court refuses to provide a remedy? In other words, isn’t asking a US court to enforce a remedy against the US akin to asking a party to a contract to abide by its terms?

I doubt that very much. Could you please direct me to the case?

Somewhere in the thirteen states on July 5, 1776, a judge made a ruling based on the law established by the courts of an English king whose dominion we had just repudiated or his predecessors. Common law continues to be based on writs and precedents established in England. (Louisiana and Puerto Rico, of course, modify this by partial reliance on the code of a French Emperor.) In both cases, precedents established in the U/S,. and statute have continued to shape the law – but the principle that it is founded on, and the oldest precedents, remain those of foreign courts.

I think Tusculan made the case better than I did, Lemon Thrower. When an overseas court has performed the exercise of reshaping a wheel to an almost precise size and shape, so that all our courts need do is adapt it to our own standards, it ill behooves them to reinvent it. That is all that IMHO Ms. Justice O’Connor meant.

This side argument is not on topic, but pray tell upon what law the judge could make his ruling, as the newly created nation had no law of itself. All of the preexisting law was English law.

BTW, we don’t use many of the CL writs any more. Although those writs are the bases of much of our law, the writs themselves were too cumbersome for modern day usage.