From Hegel to Wilson to Breyer
Liberal constitutional theory returns to its foreign roots.
Thus, Justice Ginsburg defends her use of foreign law on the theory that "U.S. jurists honor the Framer's intent 'to create a more perfect union' if they read our Constitution as belonging to a global 21st Century, not as fixed forever by 18th Century understandings." For Ginsburg, then, the Framers' general desire to achieve a more perfect union provides the pretext for ignoring, whenever convenient, fixed principles, adherence to which the Framers thought would make the union more perfect. Two centuries further down the road of progress than the Framers were, Ginsburg knows that History has gone "global," and that's reason enough to take the Constitution along for the ride.
Justice Breyer (usually regarded as the most moderate of the liberal justices) is, in fact, the most sophisticated Wilsonian-Hegelian of the group. As Professor Rabkin points out, Breyer considers himself free to draw not only on actual foreign court decisions, but also on other materials such as pronouncements of the Council of Europe (a collection of politicians, not judges). To Wilson and Hegel, this would make perfect sense; History is not revealed solely by laws.
Breyer is quite explicit about the nature of his quest. He has written of "the ever-stronger consensus" on protecting basic human rights that now is "near world-wide." Although "formally speaking," each American state still has its own legal system, Breyer contends that "practically speaking" these have merged into a "national" law, while "analogous developments internationally" tend to produce "cross-country results that resemble each other more and more, exhibiting common, if not universal principles in various legal areas." In short, History is producing a great convergence and the role It now assigns our Supreme Court is to nudge the United States along on this path.
But this view raises an obvious question: If History is producing this convergence, why do we need judicial review? Won't the interplay of political forces inevitably produce the inevitable global 21st century outcomes in the United States? For the answer to this question, a variation on the one posed of all forms of historicism by Leo Strauss, we turn again to Wilson. In his writings on the administrative state, Wilson called for a cadre of experts to deal not just with technical issues but with core policy issues, including the distribution of wealth. Such experts were essential because, in Wilson's view, they could see the absolute idea that would mark the end of History far more objectively than mere elected officials.
Today, virtually no one believes that our bureaucrats possess this kind of wisdom and objectivity, but some suggest that our best judges do. Thus, just as Marx placed "the party" at the vanguard of his historical process, modern liberalism flirts with the notion that judges can play that role in theirs. The robed step-children of the Wilson-Hegel marriage who sit on our high court are not quick to demur.
Paul Mirengoff and Scott Johnson are contributing writers to THE DAILY STANDARD and contributors to the blog Power Line.