04/17/2010 05:12 am ET | Updated May 25, 2011

Thoughts on International Law in US Courts: Our Constitution or Blackstone's?

The past weeks have seen interesting commentary on the recent hearing in Abbott v. Abbott before the Supreme Court. The case involves the custody of a 14-year-old child whose parents divorced while living in Chile. The child is a U.S citizen, and his American mother, who held primary custody, was unable to work legally in Chile, yet she was also legally unable to leave the country with her son. After some time she ended up 'kidnapping' him away to Texas, leaving the child's British father eager to defend his parental rights.

The Associated Press discussed the history of the case:

Timothy Abbott asked an American court to order the child returned to Chile, based on the treaty [The Hague Convention on Child Abduction]. The mother argued that she has exclusive custody of the boy and that U.S. courts are powerless under the treaty to order his return. The New Orleans-based 5th U.S. Circuit Court of Appeals agreed with the mother, Jacquelyn Abbott.

Dahlia Lithwick at Slate wrote an entertaining piece on what was noteworthy about the Abbott hearing -- including the fact that Supreme Court Justice Scalia broke with his usual dismissive stance on the value of international law in the US courtroom:

Scalia adds that the countries that have found a right of custody "include some biggies, like the House of Lords, right? And since the purpose of a treaty is to have everybody doing the same thing, we should try to go along with what seems to be the consensus in other countries that are signatories."

Most of the news coverage I've seen on Justice Scalia's expressed inclination toward honoring the consensus of an international treaty came with thinly-veiled allegations to the effect of, "What a hypocrite! Scalia has spent his entire judicial career tearing his colleagues apart for using international law to support their opinions!" How could he do such thing?!

Because inquiring minds want to know, I decided to research Justice Scalia's views on international law. In the process I stumbled on the transcript of a talk Scalia gave with Justice Stephen Breyer. Justice Scalia states explicitly:

I do not use foreign law in the interpretation of the United States Constitution. Now, I will use it in the interpretation of a treaty. In fact, in a recent case I dissented from the Court, including most of my brethren who like to use foreign law, because this treaty had been interpreted a certain way by every foreign court of a country that was a signatory, and that way was reasonable, although not necessarily the interpretation I would have taken as an original matter. But I thought that the object of a treaty being to come up with a text that is the same for all the countries, we should defer to the views of other signatories, much as we defer to the views of agencies -- that is to say if it's within ball park, if it's a reasonable interpretation, though not necessarily the very best.

Now, as a non-lawyer I may be lacking the legal acumen needed to discuss the many angles of US use of international law in a thoroughly convincing way -- but it makes sense to me that a treaty the US has signed would merit different treatment than foreign laws to which we have no obligation or allegiance. Furthermore, this argument sounds entirely consistent with his stance in the Abbott case. Scalia himself would agree: "Whatever my faults are, I am not wishy-washy."

In this same talk, given at American University in 2005, Scalia goes into detail about his philosophy on international law, which he suggests relies in large part on a philosophy on law known in legal circles as "originalism." As Scalia argues, originalism is the notion that the US Constitution has a fixed and knowable meaning, which was established at the time it was written.

While Justice Scalia acknowledges that our nation's founders did study foreign law while formulating and writing our Constitution, he insists that modern-day judicial interpretation of the Constitution should not do so:

If you told the framers of the Constitution that we're after is to, you know, do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it's full of, you know, statements that make very clear they didn't have a whole lot of respect for many of the rules in European countries.

We're trying to be independent here, people! But if the Founders relied on foreign law, why shouldn't we?

Returning to Scalia's views on the Constitution:

Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then.

Now, obviously if you have that philosophy -- which, by the way, used to be orthodoxy until about 60 years ago -- every judge would tell you that's what we do. If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like "due process," the "right of confrontation" and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law.

In any case, Scalia's fondness for English law is not what I expected to hear from someone rumored to shun all laws un-American. Scalia expands on his affinity for English law:

MR. DORSEN: But suppose old English law tells you that the way this provision ought to be interpreted is in light of contemporary conditions, as the Commerce Clause may have, for example?

JUSTICE SCALIA: You'll find some English law that says that, and I'll use it -- 

JUSTICE BREYER: Blackstone. (Laughter.)


Whatever his faults may be, no one can claim that Scalia isn't sassy.

I'm not a legal scholar, and I cannot claim more than Wikipedia-level knowledge of Blackstone's legal theories. Interestingly, though, I just happened across a reference to Blackstone in some decidedly-non-academic reading this past week. I quote:

To further enforce controls over wealth management and stabilization, courts all across Europe were now seriously upholding the legal notion of couverture - that is, the belief that a woman's individual civil existence is erased the moment she marries. Under this system, a wife effectively becomes "covered" by her husband and no longer has any legal rights of her own, nor can she hold any personal property. Couverture was initially a French legal notion, but it spread handily across Europe and soon became entrenched deep in English Common Law. Even as late as the nineteenth century, the British judge Lord William Blackstone was still defending the essence of couverture in his courtroom, insisting that a married woman did not really exist as a legal entity. "The very being of the woman," Blackstone wrote, "is suspended during marriage." For that reason, Blackstone ruled, a husband cannot share assets with his wife even if he wanted to - not even if those assets were once technically the woman's property. A man cannot grant anything to his wife, for doing so would presuppose "her separate existence" from him - and such a thing was clearly impossible.

Are we to understand that Scalia would like to preserve the legal framework from a period of time in which women (or slaves, for example) had no personhood? Call me crazy, but I'm not really up for that.

I know this can't be precisely what Justice Scalia has in mind, so let's give him another chance to explain his fetish for 18th Century British law (which, as fate would have it, seems to have incorporated its fair share of foreign law as well):

I wouldn't -- I don't use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase "the right to be confronted with witnesses against him" -- what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn't so for every provision of the Constitution.

The one you mentioned -- what does sovereignty consist of? -- that is probably one on which I would consult English law, because it was understood when the Constitution was framed that the states remained, at that time in 1789, separate sovereigns. Well, what were the prerogatives of a sovereign, as understood by the framers of the Constitution? The same as was understood by their English forebears.

While I follow Scalia's logic, I'm not convinced. How is it, exactly, that states can be sovereign yet women cannot? Am I the only one who's noticed that no one ever talks about our nation's Founding Mothers? Blackstone is clearly no friend of mine.

Also, didn't we fight the Civil War over the so-called sovereignty of the states? Didn't we then amend the Constitution after the Civil War to make clear that we all have basic rights, regardless of which state we live in?

I harbor no illusions that I will single-handedly convince Justice Scalia and his followers of the folly of their 1700's-leaning ways. On the contrary, recent Supreme Court nominations appear to be moving Court dynamics somewhat further in that direction.

Whatever his faults may be, though, Justice Scalia is not shy about offering his opinions. He has various other complaints about the use of international law in US courtrooms that I'll leave for another day. Consider this Part One in a series!

"I attack ideas. I don't attack people," Scalia has said. It is my hope, though, that some day soon our society will understand that Scalia's ideas are too often responsible for denying the civil and human rights of anyone who isn't white, male, and named Washington, Adams or Jefferson.