Fox News' website The Fox Nation has put up a headline stating “Kagan Bombs: OKs Foreign Law, Says Constitution Changes with Times.” In fact, Kagan did not say the Constitution changes with the times as the video Fox Nation linked to for evidence makes clear, and Kagan did not say foreign law trumps U.S. law, but rather made noncontroversial statements about citations to foreign and international law.
From Fox Nation:
Fox Nation's claim that Kagan “says Constitution changes with times” is simply untrue. In the video Fox Nation embeds as proof of its claim, Kagan actually says that there are specific clauses of the Constitution -- like the requirement that senators be at least 30 years old -- that the framers of the Constitution meant to be applied in exactly the same way no matter how society changed. And there were other phrases that were of “a more general kind and those provisions were meant to be interpreted over time to be applied to new situations and new factual contexts.”
Here is what Kagan actually said in response to questions from Sen. Patrick Leahy (D-VT) in the video embedded on Fox Nation:
KAGAN: Well, Justice Leahy, the framers were incredibly wise men and if we always remember that, we'll do pretty well. Because part of their wisdom was that they wrote the Constitution for the ages. And this was very much in their minds. This was part of their consciousness. You know, even that phrase that I quoted yesterday from the preamble of the Constitution I said the Constitution was to secure blessings of liberty. I didn't quote the next part of that phrase. It said blessings of liberty for themselves and their posterity. So they were looking towards the future. They were looking generations and generations and generations ahead and knowing that they were writing a Constitution for all that period of time and that life and that circumstances and that the world would change just as it had changed in their own lives very dramatically, so they knew all about change.
And they wrote a Constitution, I think, that has all kinds of provisions in it. So there are some that are very specific provisions. It just says what you're supposed to do and how things are supposed to work. So it says to be a senator, you have to be 30 years old. And that just means you have to be 30 years old. And it doesn't matter if people mature earlier. It doesn't matter if people's life spans change. You just have to be 30 years old because that's what they wrote, and that's what they meant, and that's what we should do.
But there are a range of other kinds of provisions in the Constitution of a much more general kind and those provisions were meant to be interpreted over time to be applied to new situations and new factual contexts.
Fox Nation's claim that Kagan “OKs foreign law” is equally specious.
Fox Nation excerpts an American Spectator article that reported that in response to Sen. Charles Grassley (R-IA), Kagan “said there were certain cases in which it would be 'appropriate' for the Court to cite international law. As an example, she gave the Hamdi v. Rumsfeld case in which the Court ruled that U.S. citizens being detained indefinitely as enemy combatants must be granted the option of challenging their detention in court.”
First of all Kagan specifically said that foreign law is not binding on U.S. courts in almost any circumstances. She said: “I don't think that foreign law should have independent weight in any but a very, very narrow set of circumstances. So I would draw a distinction between looking wherever you can find them for good ideas, for -- just to expand your knowledge of the way in which judges approach legal issues but making that very separate from using foreign law as precedent or as independent weight.”
Moreover, as Kagan noted, a plurality of the Supreme Court did cite international law in Hamdi -- a case that struck down the administration's policy of holding American citizens as enemy combatants without access to civilian courts. But it was hardly a group of liberal justices that cited foreign law. The plurality was made up of then-Chief Justice Rehnquist, and Justices O'Connor, Kennedy, and Breyer. And the plurality did so in order to interpret what war powers Congress had given the president when it authorized the use of force after the 9-11 attacks.
The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U.S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is 'neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war' " (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when 'no quarter' was the rule on the battlefield ... .It is now recognized that 'Captivity is neither a punishment nor an act of vengeance,' but 'merely a temporary detention which is devoid of all penal character.' ... 'A prisoner of war is no convict; his imprisonment is a simple war measure.' ” (citations omitted); cf. In re Territo, 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released” (footnotes omitted)).
Furthermore, the Supreme Court has repeatedly cited foreign law and as legal expert Eugene Volokh noted, “even Justice [Antonin] Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to ... consider foreign practices in some situations.” Volokh cited Scalia's decision in Schriro v. Summerlin, in which Scalia wrote:
Members of this Court have opined that judicial sentencing may yield more consistent results because of judges' greater experience. See Proffitt v. Florida, 428 U.S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Finally, the mixed reception that the right to jury trial has been given in other countries, see Vidmar, The Jury Elsewhere in the World, in World Jury Systems 421-447 (N. Vidmar ed. 2000), though irrelevant to the meaning and continued existence of that right under our Constitution, surely makes it implausible that judicial factfinding so "seriously diminishe[s]" accuracy as to produce an " 'impermissibly large risk' " of injustice. When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriouslydiminishes accuracy.