Constitutional Clarity v. International Ambiguity
The clarity of the Framers’ constitutional vision contrasts sharply with the fuzziness of international law.
The most salient difference is the basis of authority for these two systems of governance. The Constitution tells us in its first sentence that the source of its authority is “We the People.” By conventions of the people in each state, the Constitution was ratified and gained its authority. Had the people chosen otherwise, it would have deemed itself not binding.
From where, on the other hand, does international law derive its authority? There is no such clear statement as the Constitution has.
“The Americans combine notions of Christianity and of liberty so intimately in their minds, that it is impossible to conceive the one without the other.”
Some systems of law claim divine authority. Historically, adherents of sharia, Islamic law, believe that this law has been made by God to be binding on all people. Though its adherents generally prefer to persuade others to willingly accept its authority, some have felt it appropriate when necessary to coerce acceptance.
Early in Islam’s history, the Pact of Omer granted special allowances to Jews and Christians, gained by paying a special tax and by acceptance of second-class citizenship. The exact terms varied by place and time.
The spread into Europe of Islamic sovereignty and its legal authority was checked by Christian resistance, first in France in the eighth century and then in the 16th and 17th centuries at the gates of Vienna. Christianity had its own law system, canon law, but as Christianity gained converts among the Europeans, it did not do so by focusing on law. Its tradition ran back to its own conversion of Rome, in which Christianity did not replace Roman law wholesale, but joined itself to it, as it had long ago made a point of rendering the civil order over to Caesar. (RELATED: Who’s Afraid of the Ten Commandments?)
Canon law had its impact on kings — just ask Henry VIII — but its impact as the law of kingdoms was limited. It became even more limited when Christian unity shattered during the Reformation, with Protestantism in general dispensing with the institutional law of the Catholic Church and seeking divine legal authority in Scripture. In one Protestant movement that was particularly influential in American history, the Puritans successfully waged civil war against the English and Scottish king, executed him, and established a military dictatorship under Oliver Cromwell, claiming divine authority for its rule.
The bloody disorder that followed the Reformation convulsed Europe and thoroughly rid it of the idea that any one version of Christianity could establish a binding law for all the Christian countries. The exhausted kingdoms finally ended the warring with the series of pacts known as the Treaty of Westphalia. Historians of law date the start of the modern European order and its international law from that moment.
The most influential and scholarly of the people who forged this order was the Dutch scholar, Hugo Grotius. Like the previous advocates of international law, Grotius claimed a divine sanction for its binding power, but his ground source was neither the Islamic nor the Christian law traditions. Rather, following the turn of European scholars to the vast corpus of the rabbinic law tradition, Grotius adopted the Noahide covenant of seven basic laws as being that which binds all peoples by divine authority. (RELATED: The Noahide Laws in the Making of American Liberty)
Included in those laws is one that requires all peoples to set up courts of law by which to govern themselves, enforcing the basic Noahide law as well as the laws adopted by their own country according to its own legal traditions. There would be no need to fight to the death to establish a single comprehensive law governing all of the world under its divine authority. For most laws, the divine authority devolves onto the already existing law traditions of each nation. For Grotius, this was the place where natural law and divine law traditions came together. (RELATED: The Measure of a Free People)
This new conception of an international order was given practical legal force through the treaties between different nations. War might break out, but it would be over conflicting national interests, which are solvable, not over unresolvable absolute claims of divine law incumbent upon all to accept. That divine element was now restricted to a very small skeleton and enjoyed universal assent, practically speaking.
This system granted the growing nation-states of Europe a full head of steam. European power grew. Even though there were still wars, there was a coherence to the international structure. Some nations were losers — Poland, for example — but the whole was not threatened until the 20th century.
By the time the First World War had finished, those with power didn’t have faith in a Noahide covenant or even its bare skeleton of laws. As well, the new political religions of Communism, Fascism, and Nazism renewed the idea of an absolute struggle to conquer the world and impose the rule of a barbarous faith with utter contempt for human freedom.
Fascism and Nazism were smashed to ruin, along with most of Europe. The Communists saw their moment to profit from the misery of the prostrate peoples of the continent, using robbery and enslavement to help heal their own wounds and to continue their religious war for total domination.
Western Europe tried to establish a new international order to continue what had started with Westphalia, without any belief in the core idea — a divine core of laws that commanded universal allegiance.
Yet the strongest indication of their true belief in international law took center stage at the Nuremberg war crimes trial. The practitioners of racial extermination on an industrial basis were carrying out the orders of their state. Were they bound by any treaty against genocide, which was coined to mean the deliberate attempt to eradicate an entire ethnicity (not to describe the massive casualties of an urban war in which one side uses civilians as shields)? By what authority could they be tried?
Although the Allied prosecutors did not make the case with any direct reference to the Judeo-Christian tradition, they proceeded on the practical assumption that no one could imagine that the mass murder of entire peoples could be legal. They referenced various previous treaties to justify objections that the defendants were being arbitrarily tried on laws established ex post facto, but this did not satisfy some serious critics, such as Senator Robert Taft.
He objected to the trials as betraying the core principles of Anglo-American laws and falling into the same trap as the Nazis of justifying what they were doing on their power to do it and merely propagandizing it with legal rationalizations. He summed up his argument with these words: “Their guilt did not justify us in substituting power for principle.”
Taft’s argument is telling in terms of the 20th century power elites who did not take ideas of biblical law tradition seriously. The thinkers who helped establish the modern order, such as Grotius and Selden, were dusty notes from law school lectures, not anything to be admitted to serious, elite discussion. As principled as Taft was, his logic led to allowing the Nazi criminal masterminds to walk free. The pity is that his arguments were not answered on the theoretical level.
A few short years later, as the Truman administration was debating its stance on the emergence of a Jewish state in the Holy Land, Clark Clifford faced down Dean Rusk on the validity of the Bible as a basis for argument in world affairs. Rusk was very much opposed, and like most of the State Department, opposed Jewish independence. But Clifford in the end won the argument in that Truman chose to overrule the men he called “the Hahvahd striped-pants boys” in State and recognize Israel. Truman, though, only used biblical arguments in private conversations or letters. He did not argue that way publicly.
Taft’s concerns were based on a clear recognition that international law cannot trump the Constitution. As several SCOTUS decisions have made clear, properly ratified treaties have the status of binding American statutes, not of constitutional amendments. Thus, the Constitution’s prohibition of ex post facto laws would be a real issue. We are protected from a Senate and president deciding that, between the two of them, they can override the many protections Americans as a people have insisted upon as their right by including them in our most basic level of law.
But the Framers as a whole understood the Constitution’s own authority as deriving from the sovereignty granted the people by God. Therefore, the right to worship freely was protected in the very first constitutional amendment. Its protections were not merely a matter of what Jefferson called in private correspondence a dividing wall, although that is a true enough reading of Jefferson’s religiosity. He wrote his own edited Bible; he indicated a disdain for Jewish law and tradition in his correspondence with John Adams, sparking Adams’s spirited, learned, and eloquent counter.
Tocqueville wrote in the 1800s: “The Americans combine notions of Christianity and of liberty so intimately in their minds, that it is impossible to conceive the one without the other.” But over time, the religious element was slowly deserted in the company of the powerful.
It took the onslaught of militant political Islamism to penetrate the cliches of the elite. They were largely blindsided by its power. Since the aversion to the religious tradition of the West is greatest on the progressive left, it is no wonder that they are so fantastically incoherent and morally empty in dealing with the reality of the war of the Islamists against America. Queers for Palestine seem oblivious to the fact that in Hamas-run Gaza, their treatment would be a good deal worse than what NYC cops handed out to the patrons of the Stonewall back in the Sixties.
It also explains why the non-elite branches of American Judaism and Christianity, the ones derided by the progressives as being bitter clingers, have better understood the challenge of the radical religionists than the striped-pants boys or their woke successors. They believe in a muddled version of international law as a wedge to pry America away from the protections of the Constitution. They would have us believe it can be whatever they or other diplomats of similar views say it is and that it trumps our own Constitution and its irksome concerns.
That was a danger Robert Taft, Mr. Conservative, saw very clearly. Put it together with the anchor in our most ancient law systems, as did Grotius and Selden, and then we have a sane and clear picture of what international law must do and also of its constitutional limitations.
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