John Roberts and the Supreme Court Disparage "International Law." Good.

Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao do Vegetal et al.: On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit,” by John Roberts et al, Supreme Court of the United States, 21 February 2006,

While not quite as succinct as Justice Antonin Scalia’s criticism of international law, Chief Justice has officially put “” in its place

John Roberts: Lord of International Law

The case, which struck down a federal drug law, was well decided. That is good. The government gave an incompetent and lackluster defense. That is typical. But what’s wonderful is this paragraph

The fact that hoasca is covered by the [U. N. Commentary on the Convention on Psycho­tropic Substances], however, does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV’s sacramental use of the tea. At the present stage, it suffices to observe that the Government did not even submit evidence addressing the international consequences of granting an exemption for the UDV. The Government simply submitted two affidavits by State Department officials attesting to the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs. See Declaration of Gary T. Sheridan (Jan. 24, 2001), App. G to App. to Pet. for Cert. 261a; Declaration of Robert E. Dalton (Jan. 24, 2001), App. H, id., at 265a. We do not doubt the validity of these interests, any more than we doubt the general interest in promoting public health and safety by enforcing the Controlled Substances Act, but under [the ] invocation of such general interests, standing alone, is not enough.

In other words, the Court has affirmed two principles

  • First, treaties have to meet a “compelling interest” before they trump certain domestic laws, such as the
  • and Second, international law is only valid in the context of “international consequences,” not as laws unto themselves

Those who support America’s submission to “international law” often cite the second paragraph of Article VI of the US Constitution

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and 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, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Constitution lists three sources of the “supreme law of the land”

  • the Constitution itself
  • the laws of the United States
  • all treaties made

However, in the same sentence, the Constitution instructs all judges to be bound by that, notwithstanding

  • “anything in the Constitution,” or
  • “the laws of any State”

In other words, the Constitution identifies three sources of Supreme Law (the Constitution, Laws, and Treaties), and then identifies the Constitution and the Laws as the most important of these. The Supreme Court may listen to government pleas that it has an interest in some treaty, or that some treaty beneficial consequence to the United States.

Treaties are the least democratic source of “law,” because they are enacted by the joint action of the President (who is indirectly elected through the Electoral College) and the Senate (which represents the States, and thus has equal representation for states regardless of the population). Under our democratic system of government, treaties are rightfully deprived of much power and influence.

As the historian Mark Safranski wrote:

Most of what passes for ” International Law ” are simply arguable moral claims advanced by interested parties. The most solidly ” legal ” core of international law is considered binding because nations-states have agreed almost universally to restrict themselves with certain provisions out of self-interest. Enforcement comes only in the cases of the most egregious violations when the moral outrage of the world can be coupled with the selfish interests of the great powers to intervene. That is about the best we can expect from such a system and if ardent advocates of International Law Theory get their way, we won’t even have that much.

International law is best taken with a healthy dose of common sense.

The recognizes this.


6 thoughts on “John Roberts and the Supreme Court Disparage "International Law." Good.”

  1. Umm…you misread “anything in the Constitution or laws of any State to the contrary notwithstanding.”

    That sentence clearly means that judges are bound by the three sources (Constitution, Treaties and laws of the United States) even if the Constitition or the “laws of the United States” state that judges are not bound by them. Note that the “laws of the United States” in the fist part is different than “the laws of any State” from the second.

    What it was, in effect, conveying is that (a) *state laws* cannot order or permit judges to ignore federal all and (ii) the Constitution should not be interpreted to permit judges to ignore federal law.

    The implication of your argument is that if a *treaty* were say “judges are not bound by constitutional law” … then that pronouncement would be permissable. It does not fall within the dismissive “notwithstanding” clause, and as such statements in a treaty would not be dismissed.

    If your reading were correct, treaty law could trump the Constitution by ordering judges to ignore it. Luckily, I do not think that is the preferred reading.

  2. Kurt,

    That sentence clearly means that judges are bound by the three sources (Constitution, Treaties and laws of the United States) even if the Constitition or the “laws of the United States” state that judges are not bound by them. Note that the “laws of the United States” in the fist part is different than “the laws of any State” from the second.

    In your reading, is it thus impossible to amend the Constitution to override the effect of a treaty, because the Treaty would be the Law of the Land, notwithstanding the Constitution?

  3. Dan, Kurt is right, the Supremacy Clause says that the Constitution, treaties, and federal law all override the laws and constitutions of states when they conflict. The Clause does not expressly specify what happens when those three categories of Supreme law conflict, but it’s well established that the Constitution always controls, and when treaties and federal law conflict the winner is whichever was made more recently.

    The Supreme Court ruling does not establish that treaties are only important insofar as they create a “compelling government interest”, RFRA is a special law which says that any other law (whether a treaty or federal law) shall not be applied to prevent someone from doing something their religion requires unless it serves a “compelling government interest”. In this case the government tried to justify a domestic drug law by saying that it was required to enforce a treaty, the Supreme court found that RFRA trumped that domestic drug statute nonetheless. Treaties ratified by the senate generally are directly enforceable as law, except in some cases where they are not self-executing.

  4. And the clause Means notwithstanding state constitutions, it doesn’t mean notwithstanding the United States Constitution. Obviously a treaty that conflicts with the US Constitution is unenforceable.

  5. Guy,

    Generally I agree. Treaty law gets convoluted quickly. IRRC, the only case where the US Congress sacrificed state sovereignty in a treaty was relating to bird hunting rights.

  6. Depends what you mean by “sacrificing state sovereignty”. The federal government has enumerated powers, and one of those is the treaty power. Maybe there would be less resistance to that if Senators were still chosen by the state governments directly. The reason treaty ratification is given to the senate is because there the states have the ability to choose whether or not they wish to be bound as sovereign. Under the 17th Amendment, that decision is now made by the representatives of the people of the states directly, rather than the representatives of the states government.

    I think it’s important, generally, to emphasize the distinction between treaties (which the people’s representatives have agreed the United States should be bound by) and customary international law (which is only relevant insofar as Congress has incorporated it into domestic law, or when it becomes relevant under the Charming Betsy Canon which roughly says that Congress should not be presumed to have passed a statute that conflicts with international law when there is ambiguity about how it should be interpreted).

    Incidentally, under the modern understanding of the Commerce Clause, it’s unlikely that the Feds would still have to rely on a treaty to be able to regulate the hunting of birds that migrate across state lines.

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