Posted on 05/31/2005 9:51:31 PM PDT by bd476
By Kenneth Anderson
Kenneth Anderson is professor of law at the Washington College of Law, American University, and a research fellow at the Hoover Institution, Stanford University. Email: kanders@wcl.american.edu. Website: http://kennethandersonlawofwar.blogspot.com.
Justice Anthony Kennedy’s majority opinion in Roper v. Simmons,1 which endorsed the use of foreign and international law in U.S. constitutional adjudication, has at least the virtue of putting everyone’s cards on the table. Until that decision was handed down (on March 1, 2005), it remained possible to view the appearance of foreign law in constitutional decisions as nothing more than a minor hobbyhorse for Justice Stephen Breyer or Justice Kennedy — a merely rhetorical nod in the direction of the mostly Western European judges with whom they have become friends at international judicial conferences and other such venues over the years.
As for Justice Antonin Scalia’s attacks on the use of foreign legal materials, well, they were withering and witty, as always, but surely a bit over the top? Judges, after all — even Justice Scalia — have been adorning their opinions with bits of poetry, Shakespeare, and the Bible for a very long time, so why not the occasional reference to opinions of the Supreme Court of Zimbabwe or the Privy Council or the European Court of Human Rights? What could possibly be the harm in it?
Justice Kennedy’s Roper majority opinion puts paid to the conceit that this is all just a bit of fluff exaggerated into something sinister and conspiratorial by Federalist Society right-wing ideologues. Roper asserts far more, it turns out, than the prior use of foreign law in contemporary constitutional cases would have suggested.2 It blesses in the contemporary era a new doctrine of constitutional adjudication, what has been called “constitutional comparativism,” that is very far indeed from mere flirtation. It invites the deployment of a sweeping body of legal materials from outside U.S. domestic law into the process of interpreting the U.S. Constitution — and, moreover, invites it into American society’s most difficult and contentious “values” questions.
The Roper opinion reassuringly holds that the “task of interpreting the Eighth Amendment [cruel and unusual punishment] remains our responsibility.” It adds, however, that it does not “lessen our fidelity to the Constitution . . . to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our heritage of freedom.” Roper then proceeds to deploy a startling range of international authorities that hitherto would have been thought not only irrelevant but affirmatively barred from U.S. constitutional adjudication. That the opinion overlays the groundwork for a globalizing Court with a series of pat phrases transparently aimed at soothing parochial American sensibilities — reassuring the populace that the Constitution remains “theirs” — does not lessen in the least the enormity of what the Court has done.
Roper cites, for example, the United Nations Convention on the Rights of the Child. Indeed, the Court even notes in passing what might have been thought a fatal flaw, viz., that the United States has not ratified it. The Court prefers to treat this unratified convention as evidence of global — in the sense of universal — views on juvenile capital punishment to which the United States should, and the Court will ensure that it does, pay heed.
Such citation is problematic on a number of fronts. It is, moreover, emblematic of the several conceptual difficulties with the use of either foreign law or international law to which the United States has not assented and given an understanding of the nature and scope of its formal legal undertaking.3 The Court’s unstated assumption, for example, that the Children’s Rights Convention’s near-universal ratification means that it is actually accepted on its own terms by the world is simply false. Even at the formal legal level, the Court ignores how widely the Convention features sweeping reservations by individual countries: Saudi Arabia, for example, as with so many Muslim countries, has ratified, but with a formal reservation (surely not irrelevant to the Court’s inquiry) that none of it has any application to the extent that it conflicts with shari’ah law.
As for compliance in fact — widespread adherence of the sort that would meaningfully reflect a consensus of opinion around the world — at generous best, we may say the Convention is essentially hortatory and honored in the breach by the nations of the world.4 The Court is interested, of course, in one tiny part of the Convention, but the evidence proffered by the Court for its supposed universality obtains only in virtue of the Convention as a whole text, viz., the extent of the whole text’s ratification. Widespread lack of compliance with large parts of the treaty undermines, therefore, the claim that it — or the specific rule concerning juvenile execution contained in it — is universal in the way that the Court asserts. The devil is in the details, in other words, and it is such empirical and formal legal details that elude the Court — or, more precisely, details which the Court elides in its scrubbing up of foreign and international law sources for the purposes for which it has preordained them.
A certain sleight-of-hand is involved in much discussion of the “universal” values the Court has grown fond of citing in the abstract. An unstated, unargued-for assumption in much of this rhetoric is that “global” and “international” are the same as “universal.” It presumes, in other words, that if one’s position can be described as “global” or “international” or “transnational” because it transcends mere geography and mere borders, it is “universal” in the moral sense of applicable to all, free of particular interests, free of prejudice and attachments, impartial and disinterested and hence suitable to judge as between others’ particular interests.
But why assume that the views of those who live globally, internationally, or transnationally are indeed morally universal? Why assume that they have no particular interests and no partiality? Do they not have the particular, parochial, partial interests of elites who spiritually reside in the interstices among New York and London and Paris — and those, we might add, who judge in Washington but fete in Strasbourg? Is it not a category mistake at best and deliberate intellectual manipulation to the ends of power at worst? Why are universal values not equally well discovered by democratic majorities in particular societies, with all their openly acknowledged interests and partialities, as by transgeographic elites who refuse to acknowledge the fact that they, too, have interests and partiality, and indeed their own topology, by appealing to the authority of moral universalism? It is not hard to guess what Kant, who never went anywhere to speak of, would have thought of the conflation of “global” and “universal.”
The Roper opinion further cites article 6(5) of the International Convention on Civil and Political Rights (iccpr), which prohibits juvenile capital punishment. Merely in passing, however, does the Court trouble itself to note that the United States ratified the iccpr with an express reservation concerning article 6(5). But perhaps most remarkable in this most remarkable opinion is that the Court nowhere cites a treaty or convention which the United States actually has ratified, assented to, and drawn into its domestic law without relevant reservation. Rather, it has chosen to cite treaties that the United States has quite deliberately refused to join or has joined only with reservations on the very point at issue. So much for the paradigmatic constitutional doctrine that binding the United States by treaty in the community of nations is a function belonging to the political branches of government.
Indeed, the Court seems functionally to have treated all these unratified treaties and other materials as though its task were to pronounce on the content of customary international law (international law unwritten in treaties and yet considered binding on all states) and then require its application in the United States.
The Court nowhere calls it customary law — because, one hopes the Court understands, it is not — but the process of reasoning toward a supposed consensus on the law’s content feels (at least to this international lawyer) very much like it — provided one accepts, that is, a very contemporary, very expansive, and frankly dubious view of how customary law is discerned.
The Roper doctrine is thus the more startling because it is not principally about drawing foreign or international law as such into U.S. constitutional adjudication. It is not even about law as law. Instead, it is about drawing from such legal materials evidence as to foreign or international public opinion — more precisely, evidence about elite opinion in other parts of the world, especially Western European elites whose views are more than likely to coincide with the Roper majority’s own.
Roper gathers up this body of foreign elite opinion, acknowledges it as opinion about values (rather than law as such), and blesses it as a source of decision-making by the Court. It is not (yet) binding precedent, to be sure, because it is not law as such, but it is not irrelevant either; nothing that a court need follow, because it is not law as such, but something a court, on no determinate basis, may choose to take into account.
As Justice Scalia observes in dissent, the heart of the Roper doctrine is that “though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.”
Justice Kennedy is not Justice Scalia’s intellectual peer, and it is hard to extract much of a guiding theory — in the sense of knowing when such legal materials may be used and when they may not — from Justice Kennedy’s unedifying admixture of piety, vacuity, earnestness, idealism, and platitude.
Yet this is no mere trope of Justice Kennedy’s. Fully six justices signed onto the Roper doctrine, including Justice Sandra Day O’Connor, who dissented from the dissenters specifically in order to approve the majority’s use of foreign and international legal materials. However vaguely delimited in Roper, it is a doctrine with solid support on today’s Court. What, then, of its justification (or not) as a constitutional doctrine?
Justification is, of course, a matter of legal and political theory: the question of how the use of these foreign and international legal materials can be squared, if at all, with broadly accepted theories of law and politics that purport to legitimize and justify the legal and political order. The “justification” inquiry has at least three relevant levels: philosophies of judging and the rhetoric of judging, constitutional interpretation, and the political theory of sovereignty. Of the three, most of the attention thus far has gone to the first, the question of squaring the practice with philosophies of judging, although attention is gradually shifting to the other two.
Prior to Roper, the principal decisional materials from which to form an idea of the current Court’s view of foreign law in constitutional adjudication were a relatively small handful of cases, in which various foreign cases were cited.5 Several were capital punishment cases (although the most famous instance of foreign case citation was found in Justice Kennedy’s majority opinion in Lawrence v. Kansas, which invalidated state laws against homosexual conduct).6
Occasionally, justices — including O’Connor, Breyer, Ruth Bader Ginsburg, and Kennedy — have made favorable reference to the practice in public appearances, but often these were speeches before such bodies as the American Society of International Law, where a certain bowing to organizational and advocacy agendas would be expected but regarded as largely hortatory and not seriously jurisprudential.
None of these venues — cases or speeches — provides very much illumination on the practice itself, its legal justification, history, permissible extent, or limitations. Justice Breyer seemed to think it sufficient merely to remark, in his review of foreign court cases in Knight v. Florida (a capital punishment case), that the “willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a ‘decent respect to the opinions of mankind’.”7
We might ask whether this is so obvious. The reference to the Declaration of Independence’s famous phrase is itself curious. Although the phrase has morphed into a cliché, offered in any and all circumstances in support of expansive views of the place of international law in U.S. law, its actual provenance is more limited.
Jefferson was referring, after all, not to justification of the practices of a settled constitutional order of several centuries, but instead to a society that was about to undertake revolution, rebellion, sedition, treason, confiscation, secession, and war against its lawful sovereign.
The moment indeed warranted an explanation for why all that was justified, in terms that the rest of mankind might understand. Nine generations later, Justice Breyer might more accurately have said that consideration of the opinions of mankind was appropriate at, not from, the moment of the nation’s birth.
Justice Breyer’s and his court colleagues’ other opinions embracing the practice are similarly opaque as to justification. However, in January 2005 — not long before Roper was issued — Justices Breyer and Scalia held a “public conversation” at the Washington College of Law, American University, on exactly the question of the use of foreign law in U.S. constitutional adjudication.8 One noteworthy aspect of the exchange was that both justices treated the essential question as being, first and foremost, the philosophy of judging — how to define and delimit the rhetoric of judging, in terms of sources, language, plasticity and permeability, rigidity and impenetrability. Some of these rhetorical issues meld into questions of constitutional interpretation, but even so, the focus was on the rhetorical task of what judges actually do. Neither justice showed any significant interest in raising the debate to the level of political theory and sovereignty.
Accordingly, rather than attacking the practice as inconsistent with the democratic sovereignty of the people of the United States, Justice Scalia criticized the practice for opening up the rhetoric of judging to a new kind of language, a vast body of sources that could, in his view, only lend themselves to allowing a judge to go wherever he or she wanted to go. He was very careful to make this criticism not only from the standpoint of his judicial philosophy of originalism — which would, by its nature, rule out nearly all foreign law but the special, historical English law relevant to the Constitution’s founding — but also from the standpoint of a non-originalist.
Even if you were not an originalist, he argued, even if you believed in an “evolving” or “living” Constitution, you still should be concerned about the unconstrained nature of the materials brought into play and the possibilities for unconstrained results.
Adherents of the evolving Constitution, after all, generally want to see it as going somewhere — toward a substantive vision of progress, not simply wherever jurists will take it. And the effect of these materials is to de-constrain judges in their rhetoric and, eventually, in their judging. Judicial rhetoric matters.
Justice Breyer’s response was, really, surprise that anyone should make a big deal out of this. Foreign case law is information like any other; judges take it in, and it informs them in the same way that reading books or attending academic lectures or anything else might. Judges, after all, read law review articles in order to be expert in their field, and yet, as Justice Breyer observed, no one elected the professors who wrote them. It would be downright perverse to say, no, judges should not be aware of any of the stuff that their counterparts do on similar issues in other countries.
Who wants to say that ignorance is the best policy, for fear of — well, what? Contamination? Surely one does not want to tell a judge to increase his or her ignorance of how things are done in other places. And if that position is rejected as absurd, then it would be disingenuous for a judge not to acknowledge the source of his or her knowledge, even if it just happened to be an opinion in a case from the constitutional court of some other country. What in any of this is remotely objectionable?
Commentators have reinforced Justice Breyer’s “no big deal” view with observations on how frequently the Supreme Court in the past has made reference to foreign law and international legal materials in constitutional adjudication — including some of the leading “values” cases; these include perhaps the lowest ebb of Court jurisprudence, the infamous Dred Scott slavery case, as well as Reynolds (upholding the outlawing of polygamy among nineteenth-century Mormons).
It might even be said, surveying the history of the Court’s holdings, that controversial values cases seem affirmatively to attract citation of non-U.S. authorities because the Court sought rhetorical justification in what seemed at the time to be incontrovertible human truths present in all the world, or at least what the Court recognized as the civilized world.
It is not so clear what these historical arguments contribute to Justice Breyer’s position. British law occupies a very special place with respect to the transition from the Colonies to the United States; there is no historically comparable body of law from any other source over which one could conceivably have the same argument. Put another way, in both citing early English law and objecting to the citation of other foreign law, Justice Scalia is not at all inconsistent.
Moreover, the terms “international law” and “law of nations,” and the range of subjects they cover, have shifted in sense so enormously over two centuries that it does not seem to mean much to say that the Court has long cited international law. One would have to show that the Court historically cited international law of a kind, say, purporting to cover such contemporary human rights concepts as a child’s supposed right to keep his letter-writing private from his parents, and not merely international law as respecting prize courts.
More compelling is what we might call Justice Breyer’s “anti-ignorance,” “information” argument. If one takes his remarks at American University together with comments made in several speeches by other justices, one detects a certain bemusement, perhaps even concern and a touch of alarm, at the idea that a judge (especially in response to popular agitation) should be confined in his or her learning, reading, thinking, and acquisition of knowledge for fear of applying something that ought not to figure in a case. Hence Justice Breyer refers to “common” legal problems in which one jurisdiction might learn from another.
Yet this is too anodyne. Certain legal problems are “common” because they raise cross-border issues, such as settlement of water disputes or pollution between countries. One might also talk of “common” legal problems where the judiciary of one country might learn from the experience of another country’s courts and their special techniques. France, for example, recently introduced a class action device, and it obviously and intelligently looked to comparative models.
Yet the most visible of the “common” legal problems Justice Breyer has in mind are very different. He seems to have in mind, at least to judge by the cases in which he has raised them, grand “values” questions. Capital punishment is evidently a concern, but there is no reason why the same concern should not apply to abortion, affirmative action, homosexual conduct, hate speech, religious accommodation, and so on. To be sure, other societies and other countries face at least some of these issues and work their way toward resolution. And of course one can acquire information about how they have dealt with those issues. But what, exactly, has one acquired information about?
It is all very well to say that information is good, more information is better, and judges should be informed and should acknowledge the sources of their information. But what is the information that Justice Breyer says is acquired in this process? The fact that other countries have values issues in their legal and political systems and that sometimes they resolve them one way and sometimes another?
This is “information,” yes. It is a fact, a datum, a bit of knowledge. But, frankly, so what? Knowing that other legal systems also express values, sometimes similar to and sometimes different from ours, does not seem to contribute very much to adjudication.
Indeed, it has the suspicious sense of inviting us to confuse — really, to cover — an “ought” with an “is” — the “is” of informing us as to how, apparently as a merely factual matter, another legal system does things. But this can mean something as a matter of judging only if you say one of two additional things: either that we are compelled, as a matter of precedent, to replace our “ought” with their “ought” or, alternatively, that we ought to replace our “ought” with their “ought.” The first of these alternatives is ruled out, thus far, by the Roper opinion, and the second requires some additional value of our own, which cannot be acquired merely by knowing what is done in some legal system somewhere else.
There is a third, much more radical possibility, of course. This is to look directly at the values underlying the reasons another legal system does things a different way (abolishing the death penalty, for example — or prohibiting abortion on the grounds that it is murder, to take an equally good example), not in order to understand it as “information” — facts and data — but instead simply to see, apperceiving, that their value is right and ours is wrong. It is hard to avoid the conclusion that the determination of other people — other places, other legal systems, other sovereign orders — that it is deeply and grotesquely wrong to impose a penalty of death speaks deeply to the urbane, cosmopolitan, civilized Justice Breyer. And it supplies the missing “values” predicate without which his “information” from other legal systems means nothing. Yet proceeding judicially on the basis of what amounts not to sense but to sensibility — not yet revealed, however, to the people through their legislatures — raises profoundly difficult issues of democracy and sovereignty.
End excerpt. Continuing: Foreign Law and the U.S. Constitution, Four Theories
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Notes
1 Roper v. Simmons, 125 S.Ct. 1183 (March 1, 2005).
2 It is important to be clear that the controversy about foreign case law is specifically about the interpretation of the U.S. Constitution. All hands, including Justice Scalia, would readily acknowledge that the interpretation of statutes, conventions, international agreements, and so on frequently requires recourse to foreign and international law. U.S. statutes, for example, are often drafted with foreign and international law in mind. Moreover, the international law at issue is not that to which the United States has assented by ratifying a treaty, or customary international law acknowledged as such by the United States, but instead unratified international conventions and assertions of customary international law which the United States does not accept as custom. When this article refers to foreign law and international legal materials, this specific meaning is intended.
3 Starting with the issue of whether the international agreement in question even permits private claims by individuals to be heard with respect to it in federal court.
4 The only two states that have not ratified are the United States and Somalia. The Convention is a pastiche of reasonably sensible provisions governing matters of obvious transborder significance, such as trafficking in children, on the one hand, and many more which aspire to regulate, as a matter of international law, the most intimate relations between parents and children by inserting the state between them, on the other. The treaty as a whole reflects a profoundly anti-parent, pro-state view of child-raising and has been widely criticized and, indeed, ridiculed for its many bizarre provisions. These include (among many examples) that the state shall use the “protection of the law” (as against parents) to ensure that “no child shall be subjected to arbitrary . . . interference with his or her privacy . . . or correspondence.” International law prohibiting arbitrary parental interference in a child’s letter-writing? This is the international agreement from which the Court draws, which such sententiousness, evidence of universal opinion regarding the juvenile death penalty? At the least, a Court honest about its deployment of sources would have found it necessary to square the Convention’s supposedly universal views on juvenile capital punishment with its views on juvenile letter-writing.
5 For example, Printz v. United States, 521 U.S. 898 (1997); Atkins v. Virginia, 536 U.S. 304 (2002); and Foster v. Florida, 537 U.S. 990 (2002).
6 Lawrence v. Kansas, 539 U.S. 558 (2003).
7 Knight v. Florida, 528 U.S. 990 (1999) (mem.), at 997 (Breyer, J., dissenting from denial of certiorari).
8 The event on January 13, 2005, moderated by Professor Norman Dorsen of New York University School of Law, was cosponsored by the U.S. Association of Constitutional Law, a scholarly comparative law society of which I am a board member. A full written transcript of the event can be found at the Washington College of Law website, www.wcl.american.edu. The discussion was informal and unscripted, and as such must not be unfairly overinterpreted by putting excessive weight upon extemporaneous, spoken turns of phrase. For that reason, I have here avoided quoting the justices directly and have instead paraphrased. Nonetheless, the event gave a remarkable window into the thinking of the two justices on this question.
"It will no longer do to say, in other words, you have cited a foreign case, but I have cited a U.S. domestic case, and that is self-evidently better authority.
All that shows, should the judge be so inclined, is evidence of American parochialism. Roper tells U.S. judges, in effect, that they should strive not to be the Ugly Judicial American."
Wait a second. One World, One World Constitution?
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