Looking Out Over the Crowd: A Moderate’s Take
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?
It begins with some honesty about what exactly is going on here. Internationalists harm their own position when they argue that courts who rely on foreign and international law in interpreting the U.S. Constitution are not doing anything new – that “international law is part of our law,” and courts are simply interpreting and applying it as they have since the Founding. But international human rights law is largely a twentieth century creation, and the Founders certainly never envisioned a world in which international human rights treaties would purport to regulate the treatment of a nation state’s own citizens within its own borders. Internationalists, in my view, need to admit that the sources of international law have changed – and with that transformation come serious questions regarding the legitimacy of incorporating foreign and international human rights norms into the American Constitution – questions that deserve to be taken seriously. Similarly, internationalists take the easy way out when they assert that “these sources of international law are not binding, they’re merely persuasive.” But labeling a particular source “persuasive, not binding” does not necessarily render it a legitimate source for constitutional interpretation. (I might consider a Supreme Court citation to Shakespeare “legitimate”, while a citation to commentary from the The Daily Show or the Bill O’Reilly Show might be less “legitimate”.) Similarly, it might be perfectly sensible to rely on a judicial decision from the UK, because we share a common legal, social and political history with England – whereas citation to a decision from the Zimbabwe Supreme Court might be more problematic, for obvious reasons. (In fact, Justice Breyer conceded that his reliance on the Zimbabwe Supreme Court’s views on the death penalty a few years ago may have been a “tactical error” — after all, he admitted, Zimbabwe is not exactly the “human rights capital of the world.”) Finally, the “persuasive, not binding” argument merely begs the question: Just how persuasive? How much weight is a court giving to a particular foreign source?
Nationalists, on the other hand, need to recognize what lies at the heart of this debate. It is not simply a debate over the relevance of foreign legal materials in interpreting the Eighth Amendment of the U.S. Constitution. It is, in a larger sense, a debate over what role U.S. courts will play in the emerging transnational judicial dialogue among the world’s courts on a whole range of legal issues. And the outcome of that debate will have enormous implications, not just internally for the Court’s jurisprudential approach to domestic constitutional analysis, but also externally: It will have a tremendous impact on the ability of U.S. courts to play a role in shaping and influencing the development of transnational judicial dialogue, and through that dialogue, the development of international legal norms on a wide variety of issues – not just human rights issues. Nationalists tend to the view the conversation as a unidirectional monologue, in which U.S. courts simply act as passive recipients of foreign norms. Instead, it can and should be a true dialogue, in which U.S. courts — through assertive and robust participation in transnational judicial dialogue — can serve as powerful champions for American norms at the transnational level.
In short, I predict that future scholarly, judicial, and political debate on these issues will be led by moderates who defy easy pigeonholing into either “internationalist” or “nationalist” camps. The moderates will recognize the reality that the world’s courts, through transnational judicial dialogue, are playing an increasingly powerful role in shaping the norms that govern the international legal system, and they will shape their views of the debate accordingly. My personal moderate’s take is this: U.S. courts should participate in dialogue on a whole range of legal issues — not only because we can learn from the experiences of other countries, but because our participation will ensure that American norms (for example, on speech) play a powerful role in the development of international law. Moreover, by participating in dialogue, the U.S. Supreme Court can become a leader among the world’s courts in developing rigorous analytical approaches to consideration of foreign and international legal sources — thus ensuring the development of a transnational judicial dialogue that is not only robust, but also principled.