"sodomy" and international law

[Jonathan Miller]

I think both of you (Tim & Francisco) are incorrectly assuming that international law as understood by Madison and Jefferson involved the same international law making process that characterizes customary international law today.  The 18th Century view of international law involved a large natural law component and often involved concern for natural rights. Our concept of international law today -- based
primarily on positive law considerations and state sovereignty, is so different I am not sure that an original intent approach recognizing the value the framers placed on international law can translate any more.

Jonathan Miller
Southwestern University School of Law

Mortimer Sellers wrote:

> International law scholars are subject to the same sorts of temptation as constitutional law scholars to speak ex cathedra and declare that international (or constitutional) law requires or imposes this or that moral preference of the speaker.
>
> Sometimes they may be correct, but only if they pay some attention to the usual sources of law.  When pontificating lawyers disregard the usual procedures of legislation to impose  novel ideas, it tends to discredit law and lawyers both, with generally pernicious effects.  People come to see assertions of law as simple claims of unwarranted authority by opinionated members of a self-perpetuating elite.
>
> Customary international law arises from state practice, coupled with opinio iuris.  There is not as yet any international consensus about "sodomy" as a practice protected (or discouraged) by law.
>
> Defenders of sodomy may wish to make an argument, as some of the framers might have, from natural law, but citations to European (or any other) cases are not persuasive evidence of international custom.  At best they are a subsidiary means for the determination of rules of law.
>
>           Tim Sellers
>
> -----Original Message-----
> From: Francisco Martin [mailto:ricenter at igc.org]
> Sent: Wednesday, February 25, 2004 3:16 PM
> To: conlawprof at lists.ucla.edu
> Subject: Lawrence & Originalism
>
> Prof. Maltz wrote in relevant part: "No one (I don't think) would argue
> that Lawrence is correctly decided from an originalist viewpoint."
>
> COMMENT:  I would argue that Lawrence was correctly decided from an
> originalist viewpoint.  Madison, Randolph, Jefferson, and Hamilton  all
> argued (without objection from any other Founders or Framers) that the
> Constitution must be construed in conformity with customary international
> law.  Because customary international law is -- well, customary -- it is
> evolving.  See Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) (distinguishing
> between ancient and modern law of nations).  It was well established by the
> time of Lawrence that customary international law prohibited criminal
> statutes outlawing sodomy on both rights to privacy and non-discrimination
> grounds.  See Dudgeon v. UK, Norris v. Ireland, Modinos v. Cyprus, Toonen
> v. Australia.  Therefore, construing the Constitution according to present
> customary international law is originalist.
>
> Francisco Forrest Martin
>
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