Do as I Say, Not as I Do: American Sovereignty and International Law
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97 FOUR Do as I Say, Not as I Do American Sovereignty and International Law Antonin Scalia was beside himself. The U.S. Supreme Court had just ruled 5–4 in Roper v. Simmons (2005) that it was unconstitutional to impose the death penalty on individuals who had committed capital crimes as minors. But what most offended the associate justice was the majority’s invocation of international opinion to justify its decision. What pos­ si­ ble relevance could the findings of foreign courts and jurists have for Supreme Court deliberations ?, Scalia inquired. “I thought it was the Constitution of the United States that we ­ were discussing.”1 The target of Scalia’s ire was Associate Justice Anthony Kennedy, the court’s frequent swing voter. Writing for the majority, Kennedy had argued that imposing capital punishment on juvenile offenders constituted “cruel and unusual punishment,” based on “evolving standards of decency”—­ a princi­ ple the court had endorsed in the 1965 case Trop v. Dulles. Noting “the overwhelming weight of international opinion against” putting minors to death, Kennedy observed: “The United States now stands alone in a world that has turned its face against the juvenile death penalty.”2 Scalia’s dissent, joined by Chief Justice William Rehnquist and Associate Justice Clarence Thomas, was withering. “What a mockery ­ today’s opinion makes. . . . ​ The court thus proclaims itself sole arbiter of our Nation’s moral standards—­ and in the course of discharging this awesome responsibility purports to take guidance from the views of foreign courts and legislatures.” In 04-3159-7_ch4.indd 97 9/11/17 1:08 PM 98 THE SOVEREIGNTY WARS the minority’s view, “the basic premise of the Court’s argument—­ that American law should conform to the laws of the rest of the world—­ ought to be rejected out of hand.”3 This conservative determination to protect American ­ legal sovereignty from international law is not limited to the judiciary. In early December 2012 the Senate debated U.S. accession to the UN Convention on the Rights of Persons with Disabilities (CRPD). Among ­ those looking on was eighty-­ nine-­ year-­ old, wheelchair-­ bound Robert Dole. The former Senate majority leader and 1992 GOP standard-­ bearer, himself a disabled World War II veteran, had returned to support the treaty’s passage. On the surface the CRPD was innocuous, already ratified by 126 other governments. It had been negotiated and signed ­ under a Republican president , George W. Bush, and U.S. diplomats had drafted most of the text. The treaty was modeled closely on the Americans with Disabilities Act (ADA), which the president’s own ­ father, George H. W. Bush, had championed and signed into law in 1990. It imposed no new ­legal burdens on the United States, while promising to universalize the basic rights that handicapped U.S. citizens already enjoyed at home. Beyond easing the lives of millions globally, it would facilitate travel for disabled Americans, including veterans like Dole. Nevertheless, the treaty encountered extraordinary hostility in the Senate, where it failed to secure the required two-­ thirds support for passage.4 Why? The CRPD’s detractors depicted it as a mortal threat to the freedom and sovereignty Americans enjoyed ­under the U.S. Constitution. “Experience shows,” critics alleged, that “once a UN treaty is ratified, a UN committee takes charge of interpretation . . . ​ to impose the po­ liti­ cal agenda of the global hard left,” making common cause with Demo­ cratic administrations and activist U.S. judges to foist socialist policies on the American ­ people.5 Senators Mike Lee (R-­ Utah), Rick Santorum (R-­ Pa.), and James Inhofe (R-­ Okla.) led the charge. “Our concerns with this convention . . . ​ have every­ thing to do with protecting U.S. sovereignty, protecting the interests of parents in the United States and the interests of families,” Lee declared. Santorum and Inhofe warned that the CRPD would allow UN officials to dictate U.S. social policy, prevent parents from home schooling their ­ children, and force the United States to expand ­ legal access to abortion. ­ These ­ were absurd allegations , but ones that resonated well beyond Congress. Not content with “surrender[ing] our nation’s sovereignty to unelected bureaucrats,” the Home School ­Legal Defense Association charged, “The CRPD would override existing state laws, seriously damaging states’ rights.”6 04-3159-7_ch4.indd 98 9/11/17 1:08 PM Do as I Say, Not as I Do 99­ These concerns ­ were groundless. The treaty explic­ itly protected the in­ de­ pen­ dent decisions of parents and...