Dispatches from the Culture Wars

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The legislation would protect individuals who are charged with what are essentially blasphemy laws that protect religions from so-called defamation.

It's good that they aren't mincing words here. "Blasphemy laws" is exactly what these "religious defamation" laws are. I get irked when people take the same old shit, slap a fancy new name on it, and try to sell it as something new.

Posted by: Wes | July 21, 2008 9:53 AM

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Taz, try the following:

http://thomas.loc.gov/cgi-bin/t2GPO/http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h6146ih.txt.pdf

Posted by: Umlud | July 21, 2008 10:13 AM

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I wonder if this includes other kinds of libel as well. I remember reading recently that people had taken up jurisdiction shopping, suing for libel in the UK where it's much easier for a plaintiff to win than here in the US. I would definitely support legislation that could put a stop to potential judgments like that as well.

Posted by: nicole | July 21, 2008 10:34 AM

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Still reading, but it occurred to me that the Supreme Court recently ruled that treaties do not create binding law. Only acts of Congress and the Constitution do that. I'm referring to the 6-3 decision in Medellin v. Texas that Texas was not required to follow the ruling of the International Court of Justice nor uphold the requirements of the Vienna Conventions. I'll add that case to my reading list. But I wanted to throw it out there for discussion.

Posted by: Abby Normal | July 21, 2008 10:45 AM

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You do realize that what this law is supposed to do is protect Christian fundamentalists who blunder there way into Muslim nations and cause trouble right?

They've already been stirring the pot in Iraq since the invasion, and they're just going to get bolder

Posted by: Bickle | July 21, 2008 10:52 AM

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nicole wrote:

I remember reading recently that people had taken up jurisdiction shopping, suing for libel in the UK where it's much easier for a plaintiff to win than here in the US. I would definitely support legislation that could put a stop to potential judgments like that as well.

I'm not a lawyer, so take this with a grain of salt. This law (or really any US law) would not prevent any of those judgements from being rendered. It just means the US will not enforce any of those judgements against you while you are on US soil. (As far as I know.) It should be fairly obvious that the US can't affect UK law any more than the UK law can affect the US, unless it's purely voluntary on the part of the 'home' country.

However, you still risk being detained or whatever if you decide to travel to that other country. The US pulled a similar stunt on a British (IIRC) citizen in relation to internet gambling not that long ago. The story was here on Ed's blog.
Dingojack:

If I fly over to the US and shoot someone dead, can I claim that you can't execute me because it's not legal here?
Why are US citizens allowed to ignore local laws, whereas the US can prosecute non-US citizens under US laws? -DJ

I'm not sure I understand you question, and maybe I'm misinterpreting the article, but I think it only applies to actions you do within the US (or potentially to US service members overseas on US installations).

There is no way that US law could (or should) protect you from doing something illegal in another country, regardless of whether that action would be legal in the US or not. The US, for example, can not convict me of illegal drug use/possession/whatever if I travel to Amsterdam and do every drug I can get my hands on.

I haven't read the proposed legislation, but I can not imagine it going beyond protecting US citizens from anything the UN or another country does, in that the US government will not cooperate with any extradition proceedings or levy fines based on actions that would be constitutional on US soil.

Cheers.

Posted by: FastLane | July 21, 2008 11:25 AM

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Sorry, my point was (I guess) if the US can "cross it's fingers" on this law, why should the international community trust it on other international laws & treaties.
World: You signed the Kyoto Protocol!
US: Yep, but we didn't really mean it.
If the US won't honour international law, should the rest of the world respect the rights of US citizens? No Habeus Corpus, no Geneva Convention protections*, no nothing for US citizens abroad.
Don't get me wrong however, I think this idea of religious protection is idiotic AND DANGEROUS, and THAT'S what the US should say, not pass this equally dumb laws saying "The US won't respect laws it doesn't like". Who died and made the Primate in Chief the arbiter of all laws? -DJ
*Not that the US respects either for foreign citizens kidnapped abroad, anyway.

Posted by: DingoJack | July 21, 2008 11:43 AM

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I am a lawyer, so I'll try to answer a few of these.

I'm with divalent - if there is -any- chance that honoring another country's laws can violate the USC, then specific legislation should be added prohibiting that. However I'm thinking we're already protected, yes? no?

Posted by: MichaelE

It is tentatively accepted that treaties cannot overrule the Bill of Rights. However, you would be amazed to find out how the Supreme Court has danced around this issue for centuries, never directly addressing some of the trickier issues.

For example, imagine that you go to England and insult a religious leader. This leader then brings suit against you in England. The leader wins his suit, and you must pay him $100.

You have skipped town and are safely back in the U.S. The religious leader now comes to your home state and asks your local court to issue an order that "recognizes" the foreign judgment. The local court does NOT rehear the case, the court just recognizes the result. It's unclear whether a court would/could/must refuse to do this.

THAT's the issue, and it's harder than it seems. It's very tricky for a court to say that enforcing something can itself be a violation of rights. Take a non-disclosure clause, for example. You work at a business and are allowed to access sensitive information on the condition that you promise never to reveal it. If you do, the company will sue you for lost profits. Should the court not enforce this contract because it results in a third-party suppression of speech?

I support the law Ed is blogging about for the sake of clarity. It is probably unnecessary, but it's best to be sure.

Still reading, but it occurred to me that the Supreme Court recently ruled that treaties do not create binding law. Only acts of Congress and the Constitution do that. I'm referring to the 6-3 decision in Medellin v. Texas that Texas was not required to follow the ruling of the International Court of Justice nor uphold the requirements of the Vienna Conventions. I'll add that case to my reading list. But I wanted to throw it out there for discussion.

Posted by: Abby Normal

Good luck adding it to your reading list (it's long) but it's not the same topic. The issue in that case was slightly different. If Congress promises to do something (treaty), but then does not explicitly do it (no law), should the Court imply that Congress meant to pass the law and take the promise as evidence of that? The Court said no.

Posted by: Chris Bell | July 21, 2008 11:58 AM

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It would appear, from the fact that this law is being proposed, that my intuition is wrong, and that in fact the US government can negotiate our rights via a treaty. If that is in fact the case, then a more important law to propose and pass is one that would prevent *that*.

Either that or to publicize the incompatibility of such laws with the liberties the United States government nominally exists to defend and firmly express disapproval.

Posted by: Azkyroth | July 21, 2008 12:17 PM

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You do realize that what this law is supposed to do is protect Christian fundamentalists who blunder there way into Muslim nations and cause trouble right?

In this case, it's a matter of taking the bad with the good.

Posted by: Sadie Morrison | July 21, 2008 12:25 PM

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Fastlane:

'm not a lawyer, so take this with a grain of salt. This law (or really any US law) would not prevent any of those judgements from being rendered. It just means the US will not enforce any of those judgements against you while you are on US soil.

Right, this is what I meant, though I was unclear. But as Chris Bell says:

For example, imagine that you go to England and insult a religious leader. This leader then brings suit against you in England. The leader wins his suit, and you must pay him $100.

You have skipped town and are safely back in the U.S. The religious leader now comes to your home state and asks your local court to issue an order that "recognizes" the foreign judgment. The local court does NOT rehear the case, the court just recognizes the result. It's unclear whether a court would/could/must refuse to do this.

So it might not be a matter of just avoiding going back to the UK.

Posted by: nicole | July 21, 2008 12:28 PM

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Ed,

As a signatory the US is under no obligation to extradite those charged by the court. However that does not prevent Americans being charged by the court. It would just make getting custody of them more difficult.

Posted by: John Doe | July 21, 2008 12:34 PM

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The US refused to sign the ICC primarily to protect Kissinger.

Posted by: Geoff | July 21, 2008 1:10 PM

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DingoJack,
My response to your position is that, yes, the US has (to some degree) and should oppose this type of law and lead the opposition to it on the world stage.

However, it is not trampling on the laws of other countries to say that if, at the end of the day, some other countries insist on passing laws that violate the rights of our citizens, that these foreign countries will get no help in enforcing them in the US.

It would be different if the law said that US citizens weren't subject to local law while the US citizen is in the foreign country. But this law only talks about enforcing foreign judgments in US Courts.

Posted by: Learned Hand | July 21, 2008 1:40 PM

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But what about undermining international laws and treaties? If the US effectively says "we can ignore any law(s) we don't like", won't this undermine the whole idea of international law. How will this affect, for example, war crimes tribunals? -DJ

Posted by: DingoJack

Well, I really think this is a different issue, so I don't want to get too off topic. Ed is correct when he points out that we have signed no such treaty. (But it would be interesting to see what would happen if we did!)

It would appear, from the fact that this law is being proposed, that my intuition is wrong, and that in fact the US government can negotiate our rights via a treaty. If that is in fact the case, then a more important law to propose and pass is one that would prevent *that*.

Posted by: Azkyroth

It's not clear whether the "US government can negotiate our rights via a treaty". There has been some Supreme Court dicta to the contrary and most think the answer is no, but the Court always avoided the issue. a knight quoted the key language, which is surprisingly ambiguous. (Notice the use of commas vs. colons.) Much of the most interesting scholarship on this issue comes from gun nuts. The U.N. has proposed several treaties that would require governments to prevent the spread of firearms, and the gun nuts argued that signing the treaty would require the U.S. to violate the 2nd Amendment. This required them to debate whether treaties can overrule constitutional rights.

They were worried enough about it that they made sure the U.S. did not sign the treaty.

A constitutional amendment was once proposed on this issue (the "Bricker" amendment). It failed to pass, but had a lot of support.

International law is not binding on any nation unless they sign a treaty, and even then no treaty can violate the Constitution in this country. We have signed no treaty agreeing to enforce religious defamation laws.

Posted by: Ed Brayton

But would a U.S. Court enforce a judgment that was legally rendered elsewhere? We normally DO enforce foreign judgments, even if they reach results that would be contrary to U.S. laws. To avoid enforcement, the judge has to find that the foreign judgment is repugnant. The law you posted about would, in a sense, make the "repugnant" finding automatic.

This goes both ways, of course. Things that we treasure are considered disgusting and unfair elsewhere. Did you know that most U.S. judgments are NOT enforceable in Europe? Europeans think that letting juries decide cases makes the outcome completely arbitrary, and they refuse to enforce jury decisions because they think it would be repugnant to their own sense of the rule of law.

The world is a funny place.

Posted by: Chris Bell | July 21, 2008 2:23 PM

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Notice the key text of the law:

(5) While our Nation's courts will generally enforce foreign judgments as a matter of comity, comity does not require that courts enforce foreign judgments that are repugnant to our Nation's fundamental constitutional values, in particular its strong protection of the right to freedom of speech.

This is what I was saying. We normally DO enforce foreign judgments, even when those judgments could not have been obtained in our courts. We do NOT do it when we find the foreign decision "repugnant".

This law makes foreign anti-speech decisions automatically repugnant. I like it because I genuinely dislike the foreign speech laws. I am nervous that Congress will cause a negative reaction in other cases. (You will then hear this argument in some other case. "How can you say that X is repugnant to Congress? When Congress finds something repugnant they specifically say so! Just look at that free speech law they passed. Therefore, since Congress passed no such law dealing with X, it must not be repugnant.")

I suggest adding a sentence pointing out that enumerating one specifically "repugnant" type of foreign law does not mean that Congress has approved of or even considered other types of foreign laws.

Posted by: Chris Bell | July 21, 2008 2:46 PM

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Brian, I don't think extradition has anything to do with it. It's about suing someone (civilly) in England, winning the lawsuit, getting a judgment for hundreds of thousands of dollars, and then coming to the U.S. to collect.

The linked article does use the word "criminalize" at one point, but it is pretty clear on the whole that these people are worried about enforcing foreign civil judgments.

Posted by: Chris Bell | July 21, 2008 4:18 PM

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Nicole mentioned jurisdiction shopping. Here's an article about such a case and the defendant's interesting legal strategy (The Guardian). Sued in the UK courts, she decided not to defend. She chose, instead, to fight enforcement by the US courts.

In 2004, Mahfouz won a default defamation claim against Ehrenfeld in the high court from the libel judge Mr Justice Eady. Ehrenfeld is seeking to resist the enforcement in New York of that English libel judgment.

In the past, US courts have refused to implement libel judgments obtained in England. The high court in England has been a popular venue for libel claimants - and English judges have been obliging in hearing cases not obviously related to this jurisdiction, including actions brought against US-based defendants.

Posted by: Dr X | July 21, 2008 5:16 PM

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Alexander Hamilton danced a bit around the "Supreme Law of The Land":

But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

Alexander Hamilton, The Federalist No. 33 - Concerning the General Power of Taxation (continued)

Posted by: a knight | July 21, 2008 5:40 PM

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I will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

...in this quote, Hamilton expresses the belief that laws which conflict with the constitution do not share the "supreme" status of laws which are in accordance with it. Nowhere in this quote does he mention treaties. This helps your case how?

Posted by: Azkyroth | July 21, 2008 5:44 PM

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Your third link at least concerns treaties but does not, on skimming, convey the idea that their provisions are superior to the US constitution. In any case, you yourself assert that Jay's intention was for treaties that conflict with the constitution not to be made, even under your absurd interpretation, so I'm not sure how this helps your case.

Posted by: Azkyroth | July 21, 2008 5:47 PM

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Exactly what is a treaty made pursuant to the Constitution?

Treaties are mentioned 4 times in the constitution:

Art I; Sect X; clause 1; regards the right of treaty making to a Federal Right which has been blocked from individual states' use.

Art. II; Sect II; clause 2; places the right to make treaties squarely within the Executive's powers, but which must also be assented to by a 2/3 Senatorial supermajority.

Art. III, sect. II; clause 1; gives the Judiciary the power to resolve controversies arising because of treaties.

Art. VI; clause 2; previously cited.

None of these constitutional clauses state that a treaty made under the authority of the Constitution must adhere strictly to Constitutional text. A treaty made pursuant to The Constitution is one proposed by The President and assented to by a 2/3 majority of the US Senate. This is all that is required. At that point Art VI; clause 2; controls making it "the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Posted by: a | July 21, 2008 5:57 PM

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See also:

"A New Bricker Amendment". Time Magazine, March 19, 1956

Posted by: a knight | July 21, 2008 6:06 PM

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Also:

"The Bricker Amendment: A Cure Worse Than The Disease?", Time Magazine, July 13, 1953

Posted by: a knight | July 21, 2008 6:13 PM

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kehrsam, a knight, Azkyroth,

Yes, those quotes do not demonstrate that treaties trump the Constitution, which is really the issue. The quotes only show that treaties will trump state laws.

Still, I am telling you that the issue is open.

kehrsam's snarky response semi-touches on the point. "Let's do a little logical extension here: If both the Legislative Power and the Treaty Power are defined and controlled by the Constitution, can they be superior to it in power? No, they cannot.

It's not that the Treaty Power is "superior to" the Constitution, it's whether the Treaty Power is greater than some other specific part of the Constitution.

Take the example I mentioned earlier. The U.N. passes an important treaty on arms control. The treaty is considered incredibly important by all nations, and there will be repercussions against the U.S. if it refuses to sign. However, the treaty may circumscribe the 2nd amendment. I'm saying that it is an "open question" whether the treaty could be lawfully enforced if the U.S. chose to sign it.

There are arguments in both directions. (I fully recognize this, and I hope you don't respond simply by reciting some of those arguments to me.) My only point is that the issue is considered open by constitutional lawyers. Doubtful, perhaps, but open.

The Bricker Amendment has been cited a few times now. The amendment doesn't keep failing because it addresses a non-problem. The amendment fails because many political leaders think that the federal government should be able to enter into agreements with foreign nations, even though those agreements could not be passed as domestic laws. It's part of the foreign affairs power.

Posted by: Chris Bell | July 21, 2008 6:22 PM

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I have an underlying purpose for making this strident argument presently, which is not germane to the topic at hand.

I firmly believe that Mr. Bush's self-determination of an armed combatant detained by US forces in a war zone to be "unlawful combatants" violates The Geneva Convention relative to the Treatment of Prisoners of War; art 5; par 2:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Mr. Bush's determination of and by himself can in no way constitute a "competent tribunal", and as such violates this treaty, and The Supreme Law Of The Land.

It has been my own personal research into "US Con,; Art. VI; clause 2; which has caused me to believe that this is right, and any judges not bound by this have committed an impeachable offence.

Keep laughing, but I stand for the Natural Rights of All Humans in the spirit of Thomas Payne:

"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

Thomas Paine, "Dissertations on First Principles of Government", 1795

I am fighting a battle to save the Dreamtime America. Which side are you on?

Posted by: a knight | July 21, 2008 7:16 PM

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If Yoo Who is right, then *any* treaty pertaining to the conduct of warfare can be unilaterally abrogated by the US when the US is at war. Let's see... mustard gas, anyone?

--

What to do about the present UN item: The Constitutional philosophy issues are interesting, but there is a simpler (though highly improbable) way to get rid of this problem.

Insert language into the proposed treaty to include a list of other characteristics of people (in addition to religion) *including* gender and sexual orientation.

That will send the religious extremists scurrying.

Alternately, just stand up and assert that all of this protectionism for religion is so much BS because most of what is peddled as religion is so much BS, and if people want to believe it privately that's their choice, but government will not be subordinated to it any more than government will be subordinated to the wishes of the mice that build their nests in the walls of the UN or the US Congress.

When arseholes push, the thing to do is push back so hard that they're pushed right off the edge of the table.

Posted by: g347 | July 22, 2008 9:41 AM

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Ok let me see if I got this right:

US Constitution; article VI; Clause 2: 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; ....

The way I read this is:
Constitution, Laws of US AND Treaties are the SUPREME LAW (within the US).
ie the constition AND the laws AND treaties ALL constitute the supreme law, equally.
In no way does that imply one of those subsets is higher (more supreme?) than the others. But hey I am probably completely wrong. (The "Founding Fathers" were certainly NOT logicians, and I am certainly NOT a constitutional laywer). ☺ DJ

Posted by: DingoJack | July 22, 2008 10:19 AM

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Boy this really is a lot more complex than it first appears! Thanks to all for attempting to enlight me. -DJ
PS Still think both (proposed) laws are stupid and dangerous.

Posted by: DingoJack | July 22, 2008 10:45 AM

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kehrsam:

If you read the thread, you'll see that I mentioned several times that there has been Supreme Court dicta on this issue, but the Court has never directly addressed the point. (Which is why I asked you for a non-dicta citation.)

In the famous Cherokee Tobacco case, a treaty conflicted with a federal law. The question was, "which one trumps?" In passing, the court made the comment you quoted. That statement, however, is dicta and could be disregarded by a future Court.

I have never said there are not good reasons to think the issue should be decided the way you are suggesting. I am saying that the issue is open, and could come out the other way in the right circumstances.

The Volokh piece I linked to is titled "The United Nations vs. The Second Amendment". The entire premise of the piece is that the United Nations might be able to restrict gun ownership rights in the U.S. If this is such a non-issue, why is this law professor worried about it?

If the Court were to address the question, I think that it would probably come out Constitution > Treaty. I'm just saying that the Court never actually has done so.

I should give some concrete examples in response.

Years ago, Congress and Canada wanted to protect migratory birds. Both countries passed laws stating that prohibited the hunting of migratory birds. The U.S. law was struck down for exceeding Congress's powers. Congress was not "regulating interstate commerce" or using any of its other powers.

Congress and Canada went back to the drawing board. They drew up a "migratory bird treaty" and signed it. A lawsuit was brought. The plaintiffs argued that Congress could NOT do this normally, so why should they be able to do it in a treaty? In Missouri v. Holland, the Supreme Court upheld the treaty with some broad language that points against your position.

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court. (cite) Those decisions were supported by arguments that migratory birds were owned by the States in their sovereign capacity for the benefit of their people, and that under (some other cases), this control was one that Congress had no power to displace. The same argument is supposed to apply now with equal force.

Whether the two cases cited were decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found.

Posted by: Chris Bell | July 22, 2008 4:26 PM