It hasn’t gotten a lot of attention, but Judge Gorsuch’s exchange with Senator Ben Sasse about international and foreign law at his confirmation hearing offers helpful clues that he’d rule properly in this area:
SASSE: As a sitting Supreme Court justice tasked with upholding the U.S. Constitution, is it ever appropriate to cite international law? And if so, why?
GORSUCH: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt foreign law. That’s an appropriate time . . .
Treaties sometimes require you to look at international law by their terms. But if we are talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own . . .
And so as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution . . .
Judge Gorsuch is absolutely right. In his answer to Senator Sasse, he has articulated a vision of the Constitution which guards against the surreptitious importation of standards from other countries which have no bearing on our Constitution (but which the Supreme Court has done from time to time).
Meanwhile, he properly admits that a foreign legal standard in a “choice of law” provision may be consulted (in these cases, the parties to the agreement have stipulated that the laws of another country shall be used to adjudicate disputes between them, and it is entirely proper to consult whatever source of foreign law has been stipulated).
He also made proper reference to treaties as a valid source of international law.
International law (laws between nations) is distinct from foreign law (the laws of a foreign nation), as properly understood, only consists of two areas.
The first is the treaty, or agreement between nations. When nations become parties to a treaty, they agree to be bound explicitly by the treaty’s terms. Yet legal activists, as they so often do in the United States with regard to the Constitution, recognize that their preferred radical policies aren’t contained within the treaty, so they twist its terms or use other mechanisms in the international legal order to push their policies, which they try to term as “law.” Yet the fact that they call them law doesn’t make them so. Just as we must guard against activist attempts to read new “rights” into statutes and the Constitution domestically, we must guard against efforts to read them into the text of treaties internationally.
The second area of international law is customary international law, which is defined as a longstanding practice engaged in by a very large number of states who engage in it because they believe they are legally bound to do so. This is a high standard and not much reaches it. But that doesn’t stop activists from trying to claim their radical policies are “customary international law.” Again, just because they say so over and over again doesn’t make it true.
Judge Gorsuch will not be hoodwinked by such shenanigans. He has articulated a limited (and proper) view of international and foreign law which shows he understands the dynamics in this area. Once again, he has shown that he will be a great originalist and is eminently qualified to be confirmed to the Supreme Court.