Originalism on the Web
Professor Epps is a fine scholar and a creative thinker, but his principal argument here confuses two points that ought to be kept separate. It’s true, as he says, that founding-era Americans had an attachment to international law (what they called the law of nations) and built it into the Constitution in various respects. In particular, not only did Congress receive the power to “define and punish” offenses against the law of nations, but Article VI made treaties, a key component of international law, directly enforceable as the “supreme Law of the Land” – a sharp departure from British practice, in which treaties were diplomatic instruments. As David Golove and Daniel Hulsebosch explain in an important new article, Americans’ interest in the law of nations grew in significant part from a desire to be accepted into the European family of nations as an equal, rather than being regarded as unruly and unreliable band of rebels.
But none of this history has anything to do with the modern purpose to which Professor Epps wants to put it. Epps criticizes conservatives’ objections to recent cases such as Lawrence v. Texas and Roper v. Simmons, in which the Supreme Court has sometimes used the modern tenets of international human rights law (or the domestic law of foreign countries) to support the expansion individual constitutional rights within the United States. This interpretive practice may or may not be a good idea, but it’s not supported by international law’s position at the founding.
First, founding-era international law didn’t have anything to do with domestic individual rights; the push to internationalize domestic rights is an invention of the 20th century. Second, while the founders had an appreciation for international law, they did not constitutionalize it – that is, they left it under the control of Congress, rather than incorporating it directly into constitutional law. No provision of the Constitution requires absolute U.S. adherence to international law. Giving Congress the ability to “define and punish” offenses against it shows a willingness to leave much of it to Congress, and early on the Supreme Court indicated that Congress could override customary international law if it was clear about doing so. Even the elevation of treaties to “supreme Law” does no more than place them on an equivalent footing to statutes – implying, as the Supreme Court later held, that Congress can override treaties as well.
To the (small) extent cases like Lawrence and Roper rely on international law, they go beyond the role the framers envisioned for it: they elevate it to constitutional status, beyond the reach of Congress. They also represent a relatively new way of using international law by the Court: as this book describes, using international (or foreign) law to expand domestic rights has (with minor exceptions) roots only in the latter half of the twentieth century. Thus Professor Epps’ critique of conservatives on this point doesn’t really work – acknowledging the Constitution’s original relationship with international law doesn’t require one to accept where the modern Supreme Court has been trying to take it.
(In fact, the Lawrence/Roper type cases, and the debate surrounding them, are mostly about selective appeals to foreign law – that is, the laws of foreign nations – not international law. That, however, is a topic for another day.)