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Another Reason to Reject International Law


A number of entries on C&C have questioned the growing influence of international law in Supreme Court jurisprudence.  This influence has been particularly noteworthy in the Court's criminal law decisions  --  ones where outcomes favoring the criminal have been supported by reference to international law (as opposed, say, to the law adopted by the various states).  See, e.g., Roper v. SimmonsGraham v. Florida; Atkins v. Virginia.  The Court usually disclaims that it finds international law controlling  --  while recurring to it again and again.  This is not exactly a non-denial denial, but it has its similarities.

A New York Times article by Adam Liptak illustrates more vividly than I could one of the best reasons the Supreme Court  --  the ultimate guardian of our Constitution  --  should reject, rather than embrace, international law:  The law of other nations increasingly and explicitly turns its back on our founding document.  Our Constitution, we are told, is too parsimonious with individual rights and entitlements  (e.g., education and health care); too hidebound; too old-fashioned and too  --  well, just too darn nasty.  Must be that pesky American exceptionalism.

One very conspicuous omission from the article is any reference to the death penalty.  This is odd, because international law is a distressingly familiar referent in the Court's decisions limiting capital punishment.  On the other hand, Mr. Liptak might be onto something the Court seems (or perhaps wants) to miss:  That while European law disfavors the death penalty, the majority of the world's people, and its four largest nations (none of them European) all have, and use, capital punishment.

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