Elena Kagan and International Law

by Dr. Michael Farris
July 16, 2010

Michael P. Farris served as founding president of Patrick Henry College (2000-2006) and is now Chancellor. In addition to teaching Constitutional Law and coaching the Moot Court team, he organizes a mentorship program for PHC students called Tyndale's Ploughmen. He serves as Chairman of the Home School Legal Defense Association.

The U.S. Senate Judiciary Committee began confirmation hearings on Elena Kagan during the week of June 28. When she was the Dean at Harvard Law School, Elena Kagan directed a massive revision of the curriculum.  American constitutional law would no longer be a required course.  International law would now be mandated for all first-year students.

Why should students study international law as a foundational course? Kagan answered in a memo to the law school community.  The study of international law, she wrote, “represents a door into the global sphere that students will use as context for U.S. law.” 

When Harvard Law School added international law as a required course, U.S. Constitutional Law became an elective class. This is tantamount to saying that international law is the lens through which Harvard students should view American law.  Study international law in the first year to develop your thinking about all of law, Kagan’s memo suggested, and if you choose to take American constitutional law in your second year, then you will be able to suitably think about the U.S. Constitution as influenced by international law. 

There is no doubt that Kagan intends to take this approach with her to the Supreme Court.  In her recent confirmation hearings, Senator Chuck Grassley of Iowa asked Ms. Kagan on the second day of the hearings, “Should judges look to foreign law for ‘good ideas?’ ”

Ms. Kagan responded, “I am in favor of good ideas wherever we can get them.”

This would, perhaps, be an acceptable response for a legislator.  If a state legislator, for example, found inspiration in the Swiss law that puts the ballot for confirmation before the community, that would be an appropriate legislative use of a good idea from another nation. 

The difference is, this falls within the legislator’s legitimate role of law making.  Legislators make laws. And legislators can legitimately get good ideas from wherever they find them.

Judges are not supposed to make law.  They need not be on the prowl for good international ideas to infuse into American law.  They have only one job: they are to decide disputes between actual parties and use existing American law to make these decisions.  There is no judicial role for law-making.  There is no room for the use of international law as a guide for interpreting American law unless your entire orientation is legislating from the bench.

Yes, we should all be alarmed about Kagan’s willingness to use international law to guide our thinking about American law, because this portends increasing judicial encroachment into the control of property rights, environmental policy, marital issues, education, life, and much, much more. But we should be even more concerned about her willingness to view the judiciary’s role as that of making law. 

Only the Congress of the United States can make legitimate law on the federal level.  Whenever the President purports to do so by executive order or regulation, his actions violate the most basic tenet of our Constitution.  Likewise, whenever the judiciary assumes the role of the law maker, they violate the Constitution in a grand act of usurpation of authority.