Crazy Pills

Falling Down the Slippery Slope of Transnational Injustice by S. Goodspeed
April 14, 2009, 9:40 pm
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At Ohio State University, Justice Ruth Bader Ginsberg articulated her belief that America’s highest judicial body should take foreign legal rulings into account when deciding cases.

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Ginsburg said Friday in a symposium honoring her at Ohio State University, The New York Times reports.


“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she says.

Much of the criticism aimed at her statements is greatly overblown and I’m sure someone at a Tea Party is predicting that in a few short years, for example, a German judicial decision will force a re-reading of the Second Amendment and restrict firearms to a post-“Don’t ask, don’t tell”, exclusively homosexual army, or something crazy like that.

Such concerns are unfounded since Ginsburg made clear American jurists should never be bound by foreign decisions in a precedential sense, but should consider the views as part of the consensus opinion on the subject.

Nonetheless, there are plenty of serious issues with Ginsburg’s notion that international norms should be considered when determining constitutional issues.

America’s defining documents are the Declaration of Independence and the US Constitution. Though the definition and composition of “We the People”, from whose authority the Constitution is derived, is certainly debatable, it is difficult to accept an interpretation that includes non-Americans as well as Americans. The Declaration and Constitution set the parameters within which the American polity must operate; laws must be created, enforced, and viewed in accordance with the documents’ letters and principles. A judge’s role is to determine whether the legislature, the executive, the states, etc. are ‘getting the law right’ according to these documents, principles, and popular views (as reflected in constitutional legislation).

Jurists who are not beholden to America’s legal system, not put in place through America’s political system, and not deciding an American constitutional issue should not be looked to for judicial inspiration. Indeed, foreign legal decisions, other than those that directly influenced America’s foundational principles (Magna Carta, British common law, etc), should not be part of the criteria for an American judge to consider.

Ginsburg also likens citations of a foreign decision to that of a paper by a law professor.

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.

But that seems like a strange and vague analogy since, as David Bernstein at Volokh Conspiracy points out:

Well, that depends. If, for example, the issue is interpreting a clause of the U.S. Constitution, and the law review article is about the text and history of the U.S. Constitution, and the “judge from abroad” is writing about the E.U. Constitution, or international norms, or moral theory, then there is very good reason one would “look to the wisdom” of the American professor, and not to that of the foreign judge.

Furthermore, legal scholars have pointed out that even rule-of-law-abiding countries possess quite distinct legal cultures and systems. For example, Europe has far different conceptions of rights to privacy, speech, etc than the American legal understanding. As a result, the legal system has evolved in sharply different manners. And that should make sense – since the Treaty of Westphalia, states have developed with complete sovereignty and authority within their borders. Clearly, states will influence others, including in the judicial realm (USAID sends judiciary experts all around the developing world). But foreign judicial opinions based on foreign judicial and legal systems presumably based on foreign constitutions have no place in determining American constitutional issues.

Unfortunately however, the fascinating question of citing foreign law is being rolled into the larger culture war, which takes away from the central legal questions. The more liberal justices have tended to unnecessarily cite European views in regard to divisive social issues, when in fact, these do not add to their oftentimes legitimate arguments but only incite further opposition.


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Closely related to these ideas is the controversy over Obama’s choice for State Department legal advisor, Harold Koh. He’s a big supporter of using “transnational law” to actually trump policies adopted through processes of representative government. This appears to be a more robust vision than Ginsburg’s notion that we should at least heed the views of international legal colleagues.

Koh’s nomination is causing a passionate debate on legal blogs and is popping up all over the conservative blogosphere. Not a whole lot of attention from the MSM yet.

Liberal supporters of Koh point out that his views are not that dangerous or earth-shattering:

Neither Koh, nor anyone else I know of says that foreign norms “dictate” anything in the US. Foreign law, as Justice Kennedy explained, can be used as persuasive evidence or, as Justice Breyer put it in a speech at the ASIL, there is “enormous value in any discipline of trying to learn from the similar experience of others.” That’s it. Nothing nefarious. No black helicopters or anything. Justices cite to law review articles, social science studies, and even Gilbert and Sullivan. Sometimes, they may note the experiences of judges in other countries and learn from them. Citing to foreign law is not allowing the world to dictate to the US; it is simple intellectual honesty.

Interestingly, he has been endorsed by a few prominent conservative legal types including Ted Olson.

A NYT blog has an excellent rundown of each side of the issue and links to plenty of bloggers who have weighed in on the subject. Check it out.

Comment by sgoodspeed

Certainly our laws have developed in their own way, related to our particular history and judicial experiences. But we don’t live in a vacuum. Our experience isn’t unique merely by virtue of being American. As you said, the Declaration “set the parameters” under which we operate, and those parameters are “all men” possessing inalienable rights. It says nothing about those rights only becoming clear or evident if you live here.

As you noted, the experiences of other people and nations were useful in founding our nation. We didn’t have much judicial background, and we certainly didn’t have John Locke. America has always benefited from an expanding sense of law and justice. In school, you’re not prohibited from learning about how other people do it, which is a good thing. Certainly we shouldn’t consider the application of specific European laws to ours. But in a grander sense, we all share a certain humanity, so when faced with the question of what is “cruel and unusual”, why not see what the standards of humans are. Kennedy agreed in writing the majority opinion for Roper v. Simmons in 2005 when he took note of “the evolving standards of decency that mark the progress of a maturing society.”

So sure, our tort laws or property laws are our own and don’t need to be compared to Asian or European law in an American court. But when seeking to understand what it is that constitutes human behavior and rights, as envisioned by the Declaration of Independence which you claim is so important, then ignoring the behaviors and norms of somebody else merely because they’re from another country is foolish. An immigrant can rise to the level of Supreme Court Justice, and I’d be surprised if they didn’t think about their particular experience from their country when deciding a case. Thats natural. At the end of the day, a Judge’s role is to judge the law and the constitution, but ours is not a system that rejects the experiences of others. Our greatness comes from embracing that.

Comment by fluffly

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