In a previous post, I asked whether there was anything new to be said on the issue of the role of foreign and international law in interpreting the U.S. Constitution. Roger Alford wrote a thoughtful comment (also posted on Opinio Juris), laying out what he sees as some of the big issues that remain to be explored among scholars and courts. His post got me thinking: How will the debate over foreign and international law evolve over the next, say, ten years? And what will second-generation scholarship in this area look like? I, for one, hope it looks something like the following:
First, I hope we all tone down the rhetoric. Justice Ginsburg has a point when she blames the hysterical tone struck by many Congressmen (and, I would add, by Justice Scalia) for fueling the death threats that she and Justice O’Connor have received from the “irrational fringe”. On the other hand, she and others in the so-called “internationalist” camp surely deserve some of the blame for the ratcheting up of the rhetoric: They wrongly dismiss the democratic legitimacy concerns of those in the so-called “nationalist” camp as just so much neo-isolationist thinking. Is the simplistic, Crossfire-esque tone of the debate really helpful, and why does everyone feel the need to choose up sides? Am I an internationalist or a nationalist? I have no idea, because I don’t know what these labels MEAN.
Instead, I hope future debate on these issues becomes increasingly dominated by moderates, who reject these simplistic labels. In fact, the tide may already be turning: A recent editorial in the Washington Post called for moderation, and pointed out that “in the debate over foreign law, neither side has a monopoly on wisdom.” So what does a nuanced debate on the role of foreign and international law – one dominated by moderates in both camps — look like?