Relentless self-promotion! "Foreign law and the US constitution" ... my new article in Policy Review

Tacky self-promotion, I'm afraid - the blog as advertising marquee. I am nonetheless very pleased to announce my article, Foreign Law and the US Constitution, in the June-July 2005 issue of Policy Review, No. 131.

The article criticizes the US Supreme Court's Roper v. Simmons majority opinion, by Justice Anthony Kennedy, using foreign and unratified international law materials - comparative constitutional materials - to reach its decision. It also sharply criticizes Justice Stephen Breyer for endorsing the use of such materials from the standpoint of "pragmatist globalism" as a judicial philosophy. It ends by asking the question of whether the Supreme Court is really interested in remaining, in a democratically sovereign sense, "our court," or instead whether it has decided that the really cool thing to do is to leave behind that kind of mere parochialism and become a kind of global court, a court to the world:

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"More abstractly, this foreign legal material is absorbed into the judging process as pure text, free of the “embeddedness” within our judicial system that has created, in an organic, informal way, means and mechanisms to order and sort the myriad authorities available for citation by judges. And, just as important, it comes to our judicial system free of the parallel “embeddedness” of the foreign judicial system from which it came. The effect is to deracinate the judicial texts of other legal systems, to strip them out of the particular social settings that animate them for our own parochial purposes even as we grandly declare them to be “global” and “universal” purposes.

In so doing, however, we dishonor them — because we do not think their particularity, their “embeddedness,” matters, while we certainly think ours does. We act like the dilettante religious seeker, borrowing a little bit from this religion and a little from that, a piece of pantheism here, nature worship there, Jesus hither, the Buddha thence, and then call the shallow mish-mash “global” and “universal” religion.

We all know, in other words, within our informal ordering of authority, the difference between citing a Supreme Court case and a quotation from Bartlett’s — but as between, for example, the German constitutional court and the high court of India? To go by the justices’ citations, one wonders whether it is anything more than just whom they happened to meet over the years at international judicial conferences or, perhaps, the foreign languages they happen to read and speak. It is not irrelevant that Justice Breyer once cited the high court of Zimbabwe, apparently in order to give it more prestige, through association with the U.S. Supreme Court, in its own beleaguered political circumstances. Yet in the American University colloquium, he allowed that this was a mistake — presumably on the basis of finding out more about the facts of the regime and perhaps reflecting that, after all, a high court is still the high court of a state, in this case the vicious Mugabe dictatorship, even if that court seeks, within its practical bounds, to act well.

The point is that a judge can use any of this material how he or she will. Which is why Judge Posner, who even within a consequentialist ethic understands the need for constraint, has expressed grave concern at the invitation to judges to “troll deeply . . . in the world’s corpus juris” to reach a politically preferred outcome."

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"In the American tradition, the Constitution owes its legitimacy to the political community which enacted and sustains it, and not to anything exterior to it. Those who interpret its constitutional text owe their allegiance to that democratic, self-governing community. The inevitable result is that if there is a conflict between fidelity to the inside political community and the desires of outsiders — as there always will be — judges cannot satisfy the desires of outsiders, no matter how committed the judges also are to the undeniable virtues, in their place, of cosmopolitanism, urbanity, comity, globalism, universalism, and so on. Justice Kennedy sought, in Roper, to create a formulation in which that essential contradiction goes away by a little magic incantation, pretending that what fidelity to this political community requires of its constitutional interpreters and what outsiders desire of them will never be in irremediable conflict.

The problem with comparative constitutionalism for democratic constitutional self-government, then, is the provenance of materials used in constitutional interpretation. Provenance matters in constitutional interpretation, at least if democracy and self-government are important, because though the content of the material may be, so to speak, intelligent or unintelligent, sensible or stupid, prudent or imprudent, it is frankly secondary to the fact that it gives, even indirectly, the consent of the governed to its use and hence to the binding conclusions derived. Constitutional interpretation is not merely a matter of “best policy,” considered in a vacuum, but “best policy” as it has arisen through democratic processes — which may or may not have been successful in reaching the best policy. Without fidelity to the principle of democratic, self-governing provenance over substantive content in the utilization of constitutional adjudicatory materials, a court becomes merely a purveyor of its own view of best policy. Yet this is not solely an issue of an unconstrained Court. It is, more importantly, a violation of the compact between government and governed, free people who choose to give up a measure of their liberties in return for the benefits of government — a particular pact with a particular community, in which the materials used in the countermajoritarian act of judging them nonetheless have, in some fashion, even indirectly, democratic provenance and consent. In this respect, citing a foreign court will always be different from citing Shakespeare, and it does not help to say, well, it is not binding precedent. It is the source that is the problem.

None of this is confined, of course, solely to Supreme Court cases. On the contrary, there are good reasons to believe that, given the open invitation of Roper, the practice will rapidly spread throughout the federal courts. Why shouldn’t it? The use of these materials, Roper assures us, is after all a way of affirming fidelity to our constitutional traditions. The practice will now spread like an internet virus across the legal system, under pressure from both plaintiffs and defendants, liberals and conservatives, activists and those answering activists. Once one side has deployed them in litigation, the other side will have to respond to them and, crucially, find something to counterbalance them from the same corpus juris of foreign and international materials.

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."

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"There is a second fundamental way to approach Roper, however. This is not as a matter of justification — not as a matter of judicial, legal, or political theory — but instead as sociology, empirical sociology and social theory. What, in other words, is the causal account of how six members of the Supreme Court came to embrace the use of these materials, and what does that account say about the Court, its values, allegiances, and self-conception for the rest of society and, indeed, the rest of the world? Will it continue to think of itself as “our” Court? Or will it see itself instead as a court for the world?

This essay, like the rest of the commentary on comparative constitutionalism, has touched upon the sociology only in passing — only indirectly, in references to judges as part of a new global elite. Yet in the long run, sociology and social theory might turn out to be more significant than legal or political theory to an understanding of the Roper doctrine’s origins in the Supreme Court, what the doctrine means for the Court’s conception of its own place in the world — and what, in turn, the Court’s new globalized sense of itself might mean for the democratic political community of the United States."