Monday, September 28, 2020

Amy Coney Barrett's Observations on International Law: Charming Betsy, Roper, and Lawrence

A search of Amy Coney Barrett's scholarly writings suggests that she has never addressed human rights explicitly. However, she has written specifically about Murray v. Charming Betsy in one article on statutory canons. In another article, she cited the majority (Kennedy) and dissenting (Scalia) opinions in Roper v. Simmons to illustrate the ways in which a judge's views may fly under the radar during a confirmation process but ultimately be revealed in opinions.

While on the Notre Dame faculty, Barrett published an article titled Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109 (2010). Addressing the question of whether and how originalist judges should utilize canons of construction, the article is generally skeptical of canons while not rejecting them entirely. Beginning on p. 134 of the article, Coney Barrett discusses the history and application of the Charming Betsy canon, embodied in Chief Justice Marshall's famous statement that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”  Coney Barrett returns to the canon later in the article, analyzing potential justifications for applying the principle. The Charming Betsy doctrine is one that "over-enforces" the Constitution, she observes, presumably since Congress may have intended that its legislation violate international norms.  Further, Coney Barrett writes: 

"Charming Betsy may be most often described as protecting international law for its own sake, but it has also been justified as guarding the
constitutional allocation of foreign affairs authority to the political branches. If almost any canon can be rationalized on constitutional grounds, the distinction between constitutional and extraconstitutional canons is one without a difference."

Coney Barrett concludes the article with the observation that the use of statutory canons "appears to be directly opposed" to the principle of faithful application of congressional legislation.

In her article Precedent and Jurisprudential Disagreement, 91 Tex. L.Rev. 1711 (2013), Coney Barrett wrote: 

"However cagey a justice may be at the nomination stage, her approach to the Constitution becomes evident in the opinions she writes. For example, it would be difficult for a modern justice to avoid revealing her position on whether the original public meaning of the Constitution controls its interpretation. Justices must decide whether function can trump form, and whether the content of the Equal Protection and Due Process Clauses is static or evolving. They must decide whether the laws and traditions of foreign countries are fair game or out of bounds in the interpretation of our Constitution."

For the latter proposition, she cited the debates in the Roper and Lawrence opinions between Justice Kennedy, who cited international human rights norms in the Court's majority opinions, and Justice Scalia's dissenting opinions excoriating any citation of foreign or international law.  Given Coney Barrett's close ideological connections with Justice Scalia, it seems likely that her sympathies lie with his position. However, both Roper and Lawrence were decided by the Court several years after Coney Barrett's clerkship in 1998-1999.

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