The Magazine

Courting Abroad

The use and abuse of foreign law by the U.S. Supreme Court.

Apr 10, 2006, Vol. 11, No. 28 • By JEREMY RABKIN
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PRESUMABLY, IT WAS NOT quite the debate Justice Ginsburg had in mind. But then, it's not clear that what she really wanted was a debate. Maybe we should have one, anyway.

At the beginning of February, Ruth Bader Ginsburg traveled to South Africa, where she gave a public address on "The Value of a Comparative Perspective in Constitutional Adjudication." She defended the Supreme Court's recent practice of taking guidance from foreign law when interpreting the U.S. Constitution. She acknowledged that the practice has been criticized. She expressed concern at bills before Congress condemning the practice.

Justice Ginsburg has given this sort of speech before, as have several of her colleagues on the Court. She tried to give more edge to this speech by noting that dismissive treatment of foreign opinion had also featured in the Supreme Court's 1857 decision in Dred Scott v. Sanford, which proclaimed a constitutional right to hold slaves--whatever Congress or international opinion might say. If that were not enough to stigmatize modern-day critics, Ginsburg added that congressional protests "fuel the irrational fringe." A posting on an Internet "chat" site, she explained, had denounced Justice O'Connor and herself for citing foreign law in their opinions and then called on "commandos" to see that "those two justices will not live another week."

The speech got little attention until the story about this threat was picked up by bloggers and then finally by major newspapers. The threat, it turned out, was already a year old and presumably not uncommon in the age of Internet bombast. Justice Ginsburg's allusions provoked exasperation. Even the Washington Post complained, in a March 21 editorial, that questioning appeals to foreign law doesn't make someone a racist "or an aspiring domestic terrorist" and chided Ginsburg for "stooping to such insinuations."

But it will be too bad if comment over Justice Ginsburg's manners deflects attention from her position. There is a real debate on this matter, and there should be. The Court appealed to foreign legal practice in three recent constitutional cases: rulings restricting capital punishment in 2002 and 2005 and the ruling against a Texas antisodomy law in 2003. Each time, Justices Scalia and Thomas and the late Chief Justice Rehnquist protested the propriety of such outsourcing. Justice Scalia has made several public speeches in the past two years, criticizing the practice Ginsburg defends. Justice O'Connor and Justice Breyer have given speeches echoing the position of Justice Ginsburg. Quite a few law professors have weighed in on each side. And there are those resolutions of condemnation kicking around in Congress.

If the debate has remained rather academic, part of the reason is that it is hard to disentangle from technical questions. Everyone concedes that references to foreign legal standards can help U.S. courts determine the meaning of treaties to which the U.S. is a party. Everyone concedes that historical sources of English law, particularly when known to the Framers of the Constitution, might help to shed light on the intended meaning of particular constitutional provisions. It turns out that Supreme Court justices have looked to foreign law in a variety of circumstances over the past 200 years. To distinguish appropriate from inappropriate references, scholars are prone to invoke their own pet theories on constitutional adjudication--often falling back on entrenched positions in long-standing debates on when the Constitution should be interpreted in accord with its "original understanding."

Still, even for people who don't want to be drawn into the wrangling of specialists, there are basic reasons to worry about the Court's recent practice of enlisting foreign authorities to smooth the way for contested readings of our own Constitution. Three general objections are particularly worth noticing. Call them the political, the strategic, and the metaphysical objections.

START WITH THE BASIC POLITICAL PROBLEM. The fault lines here are unusually stark. Liberals are in favor of foreign appeals and conservatives against. The Washington Post headlined its first report on Justice Ginsburg's speech "Ginsburg Faults GOP Critics, Cites a Threat From 'Fringe.'" It is all there in one headline--except for the failure to describe "Ginsburg" as a "Lib" justice or a "Dem" appointee.

In today's world, appealing to foreign precedent is much like appealing to the United Nations. Anne-Marie Slaughter, dean of the Woodrow Wilson School at Princeton, published a whole book in 2004 explaining that "global governance" in our world would not be achieved by a world parliament but by a network of judges. In Roper v. Simmons, the Court's 2005 capital punishment case, the Court actually invoked a U.N. convention on children's rights that the Senate has never ratified and a provision in the U.N. convention on civil and political rights that the Senate expressly repudiated.

In her South Africa speech, Justice Ginsburg tried to frame such practices as looking to foreign law to "add to the store of knowledge relevant to the solution of trying questions." It is much closer to the truth to say that what the Court is doing is shifting its perspective from America to the world at large, so that positions with less support in the United States can still be viewed--in a global context--as majority or dominant positions. Rather than looking to thoughtful analysis of "trying questions," the Court, in effect, takes a poll--on an international basis.

In all three recent cases where foreign opinion was cited, the Court faced the difficulty of explaining why it was abandoning contrary constitutional rulings from as recently as the 1980s. The Court tried to say that opinion had since changed, as some states had changed their laws on such questions as whether tests of mental deficiency would be relevant to imposition of the death penalty. Not enough states had actually changed their laws, so the Court, in effect, enlarged the count to include foreign jurisdictions. Red states and blue states might be evenly balanced at home but 25 nation-states of the European Union could tip the balance, if counted.

In one of its capital punishment cases, as Justice Ginsburg noted, the Court had received amicus briefs from Nobel Prize winners such as Jimmy Carter. What has this to do with legal analysis? It is simply a way of appealing from the views of American voters to those of electors for the Nobel Prize--the sort of people who regard President Bush as a reckless cowboy and Jimmy Carter as a distinguished statesman.

To see the partisan character of appeals to foreign authorities in this setting, one need only think of a close analogy. If foreign law, why not religious law? Why not the canon law of the Catholic Church? As it happens, the U.S. Supreme Court has cited "canon law" in more than two dozen cases over the past 200 years. Most of the references are entirely incidental, but a few cases in the early 20th century actually engaged with Church sources, among others, in wrestling with the meaning of "due process." More recent cases have insisted that secular courts cannot enter into disputed questions of church law when asked to determine claims about ownership of church property or tenure in religious office.

Suppose that Catholic or conservative justices began to regularly cite canon law on the most controversial constitutional disputes--on such matters as family law or medical ethics. These justices could insist, as Justice Ginsburg does, that such "foreign opinions are not authoritative" and "set no binding precedent for the U.S. judge" but simply "add to the store of knowledge." In today's world, the protests from liberals would be deafening, because such soothing abstractions would be seen as disingenuous. To treat canon law as any sort of "persuasive authority" would be intensely divisive. The "foreign opinion" that liberals prefer has no more inherent relevance or authority, however. We could save a lot of needless dispute by agreeing in advance that all sides will play by American rules.

WHICH BRINGS US TO THE STRATEGIC OBJECTION. In practice, the appeal to foreign law in most cases will be an appeal to European standards, even if the latter are dressed up as world standards. Europeans have pioneered the practice of transnational judicial gatherings, so that judges may lobby each other or encourage each other on supposed "common" problems. That is how the European Court of Justice helped win the acquiescence of national courts to the otherwise quite startling doctrine that European treaties should have legal priority over national parliamentary enactments and even over national constitutions.

When it comes to capital punishment, not even judges had to act in Europe. The Council of Europe, a diplomatic rather than judicial body, successfully pressured all European governments to abolish capital punishment, even though public opinion in a number of European countries remains sympathetic to the death penalty. To look at European law is not to look at the outcome of a rolling survey but the acclamation from a carefully drilled caucus. It is not a "trend" but a rigged vote.

And it doesn't vary randomly. One of the fundamental differences between Europe and America is that the United States has broad military commitments around the world, while Europeans have sought security--or international leverage--through treaty commitments. So all European nations have subscribed to the International Criminal Court along with a 1976 Additional Protocol to the Geneva Conventions, setting out new standards for military conduct in war, which the ICC is now empowered to enforce. Even the Clinton administration acknowledged that the United States could not submit to such constraints. Since the Bush administration resorted to war in Iraq--over the objections of prominent European officials--European governments have orchestrated a much more intense campaign of protest against American "lawlessness." Europeans have protested alleged prisoner abuses at Guantánamo with a degree of indignation they could never muster over mass death in Darfur or Chechnya.

It doesn't take much imagination, in this context, to see where appeals to international legal precedent will lead. But Justice Ginsburg was not content to leave matters to the imagination in South Africa--where she spoke, as it happens, at a gathering hosted by the South African Supreme Court. She repeatedly cited criticism of U.S. detention policies and U.S. interrogation policies offered by foreign courts and judges. These are issues sure to come before the U.S. Supreme Court itself. Justice Ginsburg's speech more or less indicated in advance how she feels about Bush administration policy. At the least, she is extremely skeptical. Justices aren't supposed to prejudge cases, let alone signal to the world that they have prejudged. She seems to have felt fortified in questioning U.S. policy because foreign judges have done so.

Or perhaps Justice Ginsburg simply meant to acknowledge concerns of foreign judges over American security policy. At the margin, the disapproval of foreign officials and foreign judges may well pose problems for American policy. We should certainly take such concerns into account. But even with full knowledge of such costs, it might still be reasonable to stick with a particularly controversial but quite effective security policy. Who should decide? The premise of Justice Ginsburg's speech is that it is up to U.S. judges to reassure international opinion. When we come to vital questions of national security, judges may not be the best judges of what is necessary. And former ACLU lawyers like Ruth Bader Ginsburg may be the least qualified to judge such matters.

Which brings us to the metaphysical point. What is right? The awkward fact is that people disagree--even quite serious and reflective people often disagree. But there are limits to rights and lines that must be drawn. If you think all countries must agree on where to draw such lines, how ready will you be to accept abiding disagreements within your own country?

According to Justice Ginsburg, if you think it is "improper to look beyond the borders of the United States in grappling with hard questions," you have put yourself "in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification." Few of us want to be "frozen." But the alternative offered by Justice Ginsburg is startling: "U.S. jurists honor the Framers' intent 'to create a more perfect Union,' I believe, if they read the Constitution as belonging to a global 21st century. . . . " So, what began as a Constitution "ordained" by "We the People of the United States" has somehow been transformed into a "global" charter of "union"--presumably with the world at large. What if we want to be different? What if we don't share the Dutch enthusiasm for euthanasia? What if we don't share the French proclivity to do business with terrorists or to abandon national territory to arsonist gangs? Don't we have a right to hold ourselves to our own standards?

THERE IS NO GREAT HONOR in being different if one is wrong. Whoever stands his ground against criticism must hope that he is right--which may imply hope in some transcendent standard of rightness, which even opponents might ultimately acknowledge. Part of the seduction of transnational constitutionalism is that it seems to assure development in a progressive direction. If you believe in progress, you believe that better opinions will come to prevail. Perhaps not everywhere but in more and more places, so what is widely held must be a guide to progress. Or is it?

Of course, no one says we should be comfortable with brutal punishments or brutal police methods because China sanctions them or so many countries in Africa do. What counts are the advanced countries. But is Europe really so advanced--a place where most law is now made by unelected bureaucrats operating in a language most citizens don't speak? A place where there is growing tension and violence between rival religious communities? Is that the bright future? Can't we chart a different course if most Americans want to be different from Europe?

The majority is not always right, just because it now happens to be in the majority. What happens to be the more prevalent view today is not right, just because it happens to be more prevalent at this moment. While Europeans pursue diplomatic efforts to win international endorsements for their own views, Americans have been more inclined to test their current inclinations by the views of previous generations of Americans. That is the way a national constitution works, giving the past a constraining voice in the present. But, of course, there is no constitution for Europe, let alone for the world at large.

So we can draw guidance, at least to some extent, from a past that is respectable. It may not be sufficient to ask what Hamilton or Madison or Washington or Lincoln or Chief Justice Marshall would counsel on any issue, but it is an entirely accessible starting point, a reassuring gauge when grappling with the latest fads.

For most Europeans, the past is a very dangerous place. There can be no going back, there must not be a turning back, so the way forward must be accepted as actually a way forward--otherwise, they might start looking back, and where would that lead? Perhaps to things more ominous than the restoration of capital punishment. Whatever one may think of European moralizing, it is not based on reasoned analysis of "hard questions." Europeans are afraid of open debate.

We in America, who have a better history, still have to face serious threats. We may overreact. We may make mistakes. But we have proven ourselves reasonably good at protecting individual rights while still defending the community that guarantees those rights. We do not rely on the United Nations for our security. To measure our constitutional standards by foreign opinion is to fall back on the false notion that the world at large is evolving toward better answers than we have or could find for ourselves. It is, in effect, to be defensive about being different. If we start thinking that way, we won't be Americans.

We should tell Justice Ginsburg that if American policies cause her discomfort at gatherings of foreign judges, there is an easy remedy: Stay home. Dealing with furious foreigners is John Bolton's job.

Jeremy Rabkin teaches international law at Cornell University and is author, most recently, of Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton).