Treaties or Equal Treatment?

U.S. District Judge Thelton Henderson has been embroiled in controversy since he issued a preliminary injunction against the enforcement of the California Civil Rights Initiative (Prop. 209). At his confirmation hearing, the Carter appointee had promised to recuse himself "for a reasonable time" from cases brought to his court by groups on whose boards he served. Those groups include the American Civil Liberties Union of Northern California, a group now challenging Prop. 209 in his court.

While the focus has been on Henderson's connections to the ACLU, individuals interested in the fine points of international law will want to note the arguments laid out in an amicus brief submitted by the Meiklejohn Civil Liberties Institute, another organization on whose board Henderson formerly served.

According to the Meiklejohn Institute, Prop. 209 is unconstitutional because it violates international law. The institute's legal argument, first developed in an op-ed by Neil A.F. Popovic, a lecturer at the U.C.-Berkeley law school, is that under the U.S. Constitution's Supremacy Clause, international treaties are the supreme law of the land and therefore trump state law. Popovic argues that the U.S.-ratified International Convention on Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights go beyond U.S. law, "defin[ing] racial discrimination to include discriminatory effects as well as discriminatory purposes." So America's various governments must make decisions based on race.

The Meiklejohn brief makes its case in part by citing such authorities as Prafullachandra Natwarial Bhagwati, a human rights expert from India, who once said, "Unequals have to be treated unequally in order to promote substantive equality." Elizabeth Evatt, an Australian, is cited in the brief as saying she "understood the sensitivities of federalism," but that it is important for the United State to recognize that "state laws and practices [must come] into compliance with the Covenant." Whatever their effects on former board member Henderson, however, such ramblings didn't make their way into his preliminary injunction.