Justice Antonin Scalia has weighed in once again to express his opposition to the use of foreign law as a basis for Supreme Court decisions about the U.S. Constitution. At the same time, however, he takes it upon himself to warn Congress against any legislation intended to forbid this practice. His rationale: Congress shouldn’t tell the Court how to conduct its affairs, just as the Court shouldn’t meddle in the affairs of the legislature.

Scalia’s recent remarks to a forum on Capitol Hill suggest that thoughtful conservatives must temper their gratitude for his right opinion, with their dismay at his apparent failure to understand the reasoning behind it. Why is it wrong for the Court to base its decisions on foreign laws? It is wrong because those laws are not sanctioned by the consent of the American people.

The principles of self-government on which our Constitution is based hold that the just powers of government derive from the consent of the governed. Accordingly, our Constitution assigns the lawmaking power to a legislature composed of representatives periodically elected by the people, whose subsequent actions presumably enjoy their consent. The laws of foreign countries do not satisfy this requirement of principle, since they do not derive in any way from the consent of the American people. In fact, in many countries, both the laws and the actions of the courts do not derive from the consent of their own people, much less the people of the United States.

When the Supreme Court purports to apply foreign laws to the American people without their consent, its action implies the existence of some other principle that the Court regards as more authoritative. But if the principle of consent, which is the basis for the U.S. Constitution, is not the basis for the just powers of government, the Supreme Court established by the Constitution has no claim to such powers. The Court’s use of foreign law is thus illogical and self-defeating, since the authority invoked by its own action vitiates the principle from which its general claim to governmental authority derives.

In his remarks, Justice Scalia notes that it is as absurd to prohibit the courts from applying foreign laws as it would be to require that they ignore the laws of logic. As we have just seen, however, once the principle of consent is accepted as a prerequisite for just government, the rules of logic require this prohibition. In fact, the principle of consent itself is derived, by logical reasoning, from the more fundamental principle that all men are created equal and endowed by their Creator with certain unalienable rights. Its ultimate premise is respect for the will of the Creator, as it is reflected in human nature, i.e., the way we are all made. The laws of logic, as Scalia calls them, derive their authority in the same way, from the nature of human reason.

Unfortunately, like most of the lawyers of our era, Justice Scalia ignores or rejects this derivation in favor of the view that human law derives its authority from the successful assertion of human will in the form of law. But in that case, any such assertions must be granted equal authority, allowing no pride of place to those that reflect the consent of the governed. Legal positivism, as it is called, thus denies the understanding of justice, and therefore of law, on which the U.S. Constitution is based.

In this respect, the members of the Supreme Court who boldly assert the power to impose foreign law upon the American people are at least acting consistently. As legal positivists, they make no distinction between laws based on consent and those based on the fiat of tyrants, party dictatorships and other un-representative regimes. They are egalitarian at least to this extent, that anything clothed in the outward form of law is a fit instrument for the assertion of their judicial power. Justice Scalia, on the other hand, holds an opinion (that the application of foreign law is inappropriate) that can only be justified on grounds inconsistent with the legal positivism he otherwise espouses.

Our sense of this inconsistency is confirmed when we consider the implications of his assertion that Congress has no right to object to the Court’s application of foreign laws. As a constitutional principle, the fact that just laws must be based on the consent of the governed makes the constitutionally determined will of the people the source of all government authority. As Hamilton observes in Federalist 78, this is the basis for the Court’s much-touted exercise of judicial review. Hamilton makes clear, however, that judicial review does not “by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to them both. …”

If the power of the people is superior to them both, judicial review allows the Court to ignore the will of the legislature only when it can demonstrate that the legislative act conflicts with the more permanent and fundamental expression of the will of the people in the Constitution. By itself, the Court has no legitimate authority, i.e., no right whatsoever to speak for that will. When the justices make use of foreign law they substitute a foreign authority for that of the American people. They overthrow the constitutional sovereignty of the people and with it the republican form of government. Since Article IV, Section 4 of the U.S. Constitution requires that the federal government maintain our republican institutions, these justices explicitly violate its provisions. Now, I would say that a persistent assault upon the Constitution and the form of government it requires surely constitutes a high crime and misdemeanor, within the meaning of the Constitution’s impeachment provisions. However, the final judgment in that regard is not up to me, and it is not up to the justices of the U.S. Supreme Court. It is assigned by the Constitution to the Congress of the United States.

The body that must ultimately decide whether the justices have committed an offense that warrants impeachment and removal from office is surely free to signify by law what constitutes such an offense. This in no way involves meddling in the affairs of the Court. Rather, it reflects Congress’ obligation to defend the Constitution against the misbehavior of the justices. The passage of a law that fairly notifies the justices of the rule or standard the Congress intends to apply to their behavior is obviously a proper legislative function. In the final analysis, the efficacy of such a law depends upon the size of the majority that supports its application in any given instance.

But the justices should beware. In cases of impeachment and removal from office, the Constitution entrusts to the same branch of government the power to legislate, to judge and to execute judgment. In this instance, the assembled representatives of the people fully embody the undivided sovereign power of government. Thus, unlike the Supreme Court justices, the Constitution consistently reflects the logic of democratic, constitutional self-government. If the Supreme Court continues to ignore this logic, it is the right and obligation of the elected representatives of the people to remind them, first by law and then by action, that their sworn allegiance is not to legal forms or international norms. It properly belongs to the sovereign people of the United States, whose will alone ordains and establishes the Constitution that gives the Supreme Court its limited powers.

 


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