April 9, 2005

Listening to "like-minded" foreigners.

Here's a letter to the editor published in the NYT today, responding to an article titled "Justice Ginsburg Backs Value of Foreign Law." The letter writer (Kate Gluckman of Cambridge, Massachusetts), not only approves of the courts' citing foreign law in constitutional interpretation, but asserts that the Ginsburg "mirrors" the intent of the Framers. The letter writer claims that resisting citing federal law, as Justice Scalia advises, "only enhances the notion of the Bush administration that as an isolationist nation, we can continue to alienate our allies and undermine the authority of international institutions."
Perhaps by listening to the opinions of the "like-minded foreigners" that Justice Scalia views as a threat, we can avoid future foreign policy that has been executed on motives that now prove wrong, as the government's most authoritative analysis of the Iraqi threat was deemed to be.
A court interpreting the Constitution ought to take into account the extraneous concern about improving foreign affairs? Or is the letter writer just saying that politicians ought to take international opinion more seriously? Because that's not what Justice Scalia has been talking about. He's focused on deciding court cases. There really is a difference between court cases and government policy -- and I don't think Justice Ginsburg would say otherwise. Not everything is about Iraq.

And about that phrase "listening to the opinions of the 'like-minded foreigners'" -- it really is a conundrum! First, you decide who thinks like you, then, you listen to them. How is that done? Don't you need to listen to them to know if they think like you? If so, all you're doing is restating, in an obfuscatory way, what you already think. That has been one of Justice Scalia's basic points.


Greg Brown said...

One has to wonder what would happen if three states passed statutes reintroducing chattel slavery -- would the Supreme Court decide that since there was a "growing consensus" of states and since "like-minded foreigners" in such places as Sudan and Niger permit it, that the statutes should be held constitutional?

Joe said...

No, they would not, since the Thirteenth Amendment is still binding. OTOH, if in 1910 they held that debt peonage had reached the state of involuntary servitude, perhaps foreign experience would of some relevance.

The article itself made a misleading pt. It noted: "The majority opinion reasoned that the United States was increasingly out of step with the world."

No it didn't. Roper did not "reason" execution of minors was unconstitutional because of foreign practice. It expressingly noted it was of interest, but not binding.

This should be highlighted: certain concerns of citations of foreign law seem to me overblown given how little real effect they have in the opinions. Does foreigners who cite our practice corrupt their law? I think not: they use it as of some relevance now and again, but their law is the ultimate factor.