An Originalist Reading of the Law of Nations
The Peace Palace, seat of the International Court of Justice, July 2017 (Ankor Light / Shutterstock.com)Our Declaration of Independence from Foreign Law
This Sunday, in the print edition of the New York Times Magazine, Garry Wills joined Justice Ruth Bader Ginsburg in contending that the Declaration of Independence favors interpreting our Constitution in light of foreign law. They note that the Declaration is prompted by a “decent respect for the opinions of mankind.” The colonists are moved by that respect to recount publicly the causes of their need for separation from Britain. Wills and Ginsburg appear to believe the same decent respect should encourage Americans, including our justices, to resort to foreign law to help construe our Constitution.
But using this sonorous phrase of the Declaration as a support for resorting to foreign or international law has defects that are obvious from the text and context of the great document itself. First, the Declaration makes clear that this “decent respect” requires us to explain our own views to the world, not accept the views of others.
Second, the Signers appealed to a combination of natural law and their own historic rights as justification for their break with the mother country. They did not refer to foreign and international law as support for their position. For good reason. The Enlightenment age in which Declaration was written may have been cosmopolitan, as Wills argues. But the sovereign law in the monarchies of Europe and in despotisms elsewhere were not noticeably solicitous of the rights, like representation and freedom from unreasonable searches, that the Framers thought their birthright.
The Truth is Marching On
Conference leaders at Church services during the Atlantic Charter Conference.The universal human rights régime, under which we live, originated in response to the racial and other atrocities committed by Nazi Germany and its allies. The architects of the post-War system intended to institutionalize the liberal and egalitarian vision that had animated the Allied war effort. Drawing from the constitutional practices of liberal Western societies, they placed the rights-bearing individual at the center of the new global order. They thus refashioned the pre-War states system in four major ways.
When the Prince Flunks Diplomacy 101
By its handling of China’s claim of a defense zone in international waters, Obama & co. violated diplomacy’s timeless fundamentals. First they loudly declared that America continues to regard the zone as international waters, and sent nuclear-capable B-52 bombers into the area to underline the point. Then they told US airline companies that the US government would not try to protect them in these international waters and advised them to submit to Chinese authority therein. Finally, when the Japanese government asked for US support for its own claims in the area, Vice President Biden told the Japanese to deal with China as best they can – much as the Administration had told US citizens. People who act this way should not be allowed near positions of power. They could not pass a basic exam in the field.
An Oppressive Power From the Beginning
Eliga Gould has written an intriguing new history of the diplomatic engagement of the United States in the long period spanning the Seven Years’ War to the Monroe Doctrine. It is different from most such histories of foreign policy in registering the perspective of various excluded groups—French Acadians who were expelled from their homeland in 1761 by Great Britain; loyalists consigned to exile by the American Revolution; the Native American nations and British hangers-on who contested possession of the Ohio Valley and the southern borderlands from the Peace of 1763 to Jackson’s War on the Seminoles in 1818; pirates and…
Taming International Law with Presidential Supremacy
Editor's Note: John Yoo responds here There has long been a tension between the requirements of the U.S. Constitution and the commitments of the United States under international law. Indeed, that tension surfaced early in the history of the new republic. The revolutionary government in France—and many of its American supporters—argued that the United States was obligated under its treaty of alliance to help that country in its armed struggles against Great Britain and other conservative European monarchies who sought to overturn the revolution. Alexander Hamilton and other advisers to President George Washington, however, argued successfully that the United States had…
Facilitating not Hindering American Compliance with International Law
In response to: Debating Sovereignty: Globalization, International Law, and the United States Constitution
State sovereignty is the fundamental building block of the international legal system. International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty. At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so. Today’s international legal system is a strongly positivist, consent-based system. In general, states are not bound by any rules of international law that they have not themselves created or otherwise consented to. While states have chosen to greatly expand the scope and substance of international law, most of…
More Responses
Concerns about sovereignty in an age of globalization are common, and often take a defensive posture that seeks to limit the reach of international law. But sovereignty and international law are not incompatible. Broadly understood, sovereignty may be defined as the advancement of the national interest, and the reality of globalization requires the United States…
The Transnationalists are Coming!
In this edition of Liberty Law Talk, I speak with John Yoo about how the American Constitution should interact with the proliferating sources of international law in treaties, conventions, agreements, and customary international law. A growing array of transnationalist legal scholars believe international law should be more easily incorporated into America’s constitutional and domestic law however much it may interfere with popular consent. Yoo’s new book, co-authored with Julian Ku, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, provides sturdy constitutional arguments for dealing with these questions. The Constitution's core structure of separation of powers and…
Taming Globalization: A Conversation with John Yoo
In this podcast, John Yoo discusses his new book, co-authored with Julian Ku, Taming Globalization: International Law, the U.S. Constitution, and the New World Order. Yoo focuses attention on the proliferating sources of international law in treaties, conventions, agreements, and customary international law that transnationalists believe should be more easily incorporated into America's constitutional and domestic law. Yoo's arguments, however, are not reactionary. After highlighting the constitutional and philosophical arguments made by transnationalists on behalf of this posture, Yoo discusses how the Constitution's structure of separation of powers and federalism can be utilized in aiding America in the growing international…
