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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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).