An article in CNN today seems to suggest that Scalia has an inconsistent view of the relevance of an international consensus. The article notes a recent comment by Scalia on how to interpret treaties:
The purpose of a treaty is to have everybody doing the same thing, and if it’s a case of some ambiguity [in U.S. courts], we should try to go along with what seems to be the consensus in other countries that are signatories to the treaty.
The article contrasts this comment with Scalia’s sharp hostility to using “international consensus” in other contexts (as in Atkins v. Virginia, the juvenile death penalty case):
The Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ (against executing the mentally retarded),” wrote the justice, “must go to its appeal … to the views of the ‘world community,’ whose notions of justice are (thankfully) not always those of our people.
I’m flabbergasted that CNN doesn’t see the distinction here. On the one hand, when the U.S. signs a treaty, it is essentially an agreement with the other signatories to behave in some consistent, predictable manner. (“Hey, let’s all agree to stop dumping crap in the ocean.”) On the other hand, the Constitution has nothing to do with international behavior and was drafted with the singular focus of doing it “our way.” As has often been repeated, the views of the international community do not get us very far in interpreting a document that — in Scalia’s worldview — is guided by the ideas of a bunch of 18th century drunks statesmen.
-Michael
