United States Supreme Court Justice Antonin Scalia wants to have it both ways. While he claims to have the only objective theory of constitutional interpretation, his theory is internally inconsistent. Scalia calls himself a “textualist” who purports to follow the precise text of the Constitution. But he also labels his theory “originalist,” as he subjectively attempts to divine the original intent of the founders. Whichever method he chooses to employ in any given case, however, he invariably uses it to oppose the application of treaties and customary norms of international law to protect human rights.
Imagine you were one of the authors of the Constitution adopted in Philadelphia in 1787. Fast forward 214 years. Your spirit is now floating around the Supreme Court in Washington D.C. in 2001, listening to arguments about constitutional interpretation. Justice Antonin Scalia is frustrated. After consulting the dictionary, his preferred source for ascertaining the meaning of constitutional text, he tries to divine how you, in 1787, would have interpreted the textual provision at issue.
This is how Scalia described his “originalist” or “textualist” method of constitutional analysis at a program last year at Thomas Jefferson School of Law in San Diego. He chided the “evolutionists” on the Court, who would likely agree with Justice Thurgood Marshall’s words: “I do not believe that the meaning of the Constitution was forever fixed at the Philadelphia convention. The true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making.”
Scalia criticized the “evolutionists” for their lack of a theory. “I have a theory,” he told us. “It is original. If you convince me that this is the way it is in 1791 [when the Bill of Rights was adopted], you got me.” He told us, “Seems to me you have to be limited by whatever is said in the text of the document. . . I look at the text, I say it’s not in the text; it was never the constitutional tradition.”
The Supremacy Clause, Article VI, section 2, of the Constitution says that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
When I cited the Supremacy Clause to Scalia and asked him why the Supreme Court doesn’t use more treaty principles in its decisions, he said that treaties aren’t binding unless they’re implemented, or “executed” by an act of Congress. I went back and read the words in Article VI, section 2, looking in vain for text that said treaties only become the supreme law of the land once they’ve been executed.
Scalia was referring to the doctrine of self-executing versus non-self-executing treaties, established by Chief Justice John Marshall in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829), 42 years after the Constitutional Convention. Marshall first defined treaties which “are in fact law of the land of their own accord,” now called “self-executing.” But Marshall said other treaties, which create an obligation the United States promises to perform, must be executed like a contract before they become binding.
Scalia apparently has no quarrel with the fact that nowhere in the text of the Supremacy Clause do the words “self-executing” appear. Nevertheless, this doctrine has become an accepted part of our jurisprudence. But while non-self-executing or executed treaties don’t create a private cause of action, they can be raised as defenses in civil or criminal cases.
Another source of international law besides treaties is customary international law, or the law of nations. I asked Scalia whether he thought customary international law is part of our jurisprudence. He said, “International customary law is irrelevant to the meaning of the U.S. Constitution and to American jurisprudence in general, except to the extent that it’s been adopted by Congress as part of a statute of the U.S. or through a self-executing treaty.”
Apparently, Scalia has forgotten The Paquete Habana, 175 U.S. 677, 700 (1900), where the Supreme Court ruled that customary international law is “part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”
It is well-settled that customary international law has the same status as treaty law. The Restatement of the Foreign Relations Law of the United States recognizes: “Matters arising under customary international law also arise under ‘the laws of the United States,’ since international law is ‘part of our law’ . . . and is federal law.”
Customary international law is part of our domestic law in the absence of contrary subsequent federal statutes, not, as Scalia maintains, only when it’s been implemented through a federal statute or a self-executing treaty. Under well-settled principles, courts must construe federal statutes to avoid conflict with the law of nations wherever possible.
Scalia’s disdain for the human rights law of nations pervades his decisions. When he was on the U.S. Circuit Court of Appeals for the District of Columbia, he scornfully referred to “the law of nations—the so-called ‘customary international law.’” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (1985). Scalia’s dissent in Thompson v. Oklahoma, where the plurality struck down capital punishment for 15 year-olds, dismissed the international customary law of human rights. When Scalia wrote the decision in Stanford v. Kentucky, 492 U.S. 361 (1989), allowing the execution of a 16 year-old, he rejected the contention “that the sentencing practices of other countries are relevant” to American standards of decency.
While in San Diego, Scalia repeatedly mocked the well-settled doctrine that the human rights provisions of the Bill of Rights should be analyzed in light of “the evolving standards of decency that reflect a maturing society,” first enunciated by the Supreme Court in Trop v. Dulles, 356 U.S. 86, 101 (1958). Scalia ridiculed his colleagues who follow that doctrine for being evolutionist, i.e., subjective. His “scientific” analysis, however, requires him to divine the intent of the founders, an equally subjective determination.
Unlike Scalia, many other members of the Court take our international human rights obligations seriously. Both Justice John Paul Stevens’ plurality decision and Justice Sandra Day O’Connor’s concurrence in Thompson cited the Court’s commitment to consider international human rights instruments in determining constitutional standards.
Also, in Farmer v. Brennan, 511 U.S. 825 (1994), Justice David H. Souter referred to evolving standards of decency in finding a prison official’s “deliberate indifference” to the substantial risk of serious harm to a transsexual inmate to be cruel and unusual punishment. And O’Connor, over Scalia’s dissent, looked to contemporary standards of decency in determining a handcuffed and shackled inmate’s beating by two prison guards was cruel and unusual punishment in Hudson v. McMillan, 503 U.S. 1 (1992). Justice Stephen Breyer has also cited practices of other countries to judge the constitutionality of long delays in capital cases.
Citing U.S. treaty obligations is an additional weapon in the arsenal of a criminal defense lawyer. When we challenge the admissibility of a coerced confession under the due process clause, we should also cite the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States has ratified. It forbids public officials to use coercion to obtain confessions.
We must educate judges about our treaty and customary international legal obligations. Raising these provisions will influence some members of the Supreme Court, if not the duplicitous Scalia.