The Right Coast

January 13, 2005
Conservatives and Liberals Switching Sides in the International Law Debates
By Gail Heriot

“Originalist” and “formalist” are terms usually used to describe conservative legal scholars. And I think that usage largely reflects reality. It is far more common for conservative scholars to engage in a painstaking analysis of the historical understanding of Constitutional or statutory provisions than it is for left-of-center scholars (whose arguments tend to be based more on what they regard as good policy). The scholarship written over the last decade by conservative scholars concerning the Second Amendment is just one among many examples. Similarly, the close attention given to the precise wording and punctuation of the Constitution and statutory provisions that Justice Scalia has become so famous for is in fact not just a quirk of Scalia’s but part of a general outlook on the law that he shares with many conservatives.

It was therefore amusing to attend the Seventh Annual Federalist Society Faculty Conference in San Francisco last Friday and listen to speakers on both the right and left on the subject of international law. When it came to that subject, it was the folks on the left who tended to make the formalist arguments and who appealed to original meaning. And it was the conservatives who made arguments based on what they regard as sound policy. This is a difference that is reflected in the international law literature as well.

Why? I think there are several reasons. First is that conservatives tend to regard the Constitution (and state and federal codes) as the legitimate product of democratic processes. They are often less impressed both with the procedures by which so-called "international law" became law. Much of what gets called that is actually the rantings of some unhappy law professor somewhere in the world, never ratified by anyone or anything. A good deal of the rest is ratified not by democratically elected states, but by representatives of tin-pot dictatorships, totalitarian regimes and corrupt international organizations with laughable pretensions to be acting in the interest of the world.

Moreover, conservatives tend to regard the Constitution (and to a lesser extent state and federal codes) to be basically sound law. Courts, on the other hand, they regard with suspicion. Left-of-center scholars tend to see it the other way around. For them, the Constitution is an old document that doesn’t come close to addressing the issues they regard as important; it’s up to the courts to inject them with contemporary meaning.

Even so, I think the issue is striking. I'd like to see it explored more.