15 Jun "Insidious Wiles of Foreign Influence"
As noted here at the Volokh Conspiracy, Eugene Kontorovich has an excellent essay in Green Bag on misusing language in the Declaration of Independence to support reliance on foreign opinion in constitutional adjudication. Kontorovich argues that the function of the internationalist appeal to the Declaration is to “show that this approach has the most ancient and noble pedigree, that the Founding generation would be sympathetic to what is now considered an innovative and controversial practice.” However, he argues (quite convincingly) that the appeal to the Declaration is a “misquotation” by scholars who are “playing fast-and-loose with our founding documents.”
Which got me thinking, if one side of the debate is playing fast-and-loose with the Declaration of Independence, why not have the other side do the same with other founding documents, say George Washington’s Farewell Address of 1796. It would seem as relevant as the Declaration for the current debate on the role of foreign opinions in U.S. adjudication. The other team should invoke the admonition of George Washington that:
“…The nation which indulges towards another … a habitual fondness is in some degree a slave… A passionate attachment of one nation for another produces a variety of evils…. [I]it gives to ambitious, corrupted, or deluded citizens … facility to betray or sacrifice the interests of their own country … gilding, with the appearances of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation. As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils… Against the insidious wiles of foreign influence … the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government….”
If Thomas Jefferson is the team mascot for those who wish to “pay decent respect to the opinions of mankind,” then the other team should adopt George Washington as their mascot to warn against the “insidious wiles of foreign influence.”
Of course, in the current debate I would advocate playing fast-and-loose with neither the Declaration of Independence nor Washington’s Farewell Address.
It is amazing how many people who should know better continue to equate “foreign” law with “international law” in their discussions of recent Supreme Court cases. The quotation from George Washington’s Farewell Address is about entanglements with foreign nations, NOT with international law. The Framers of the Constitution referred to two books on law much more than any other: Blackstone’s Commentaries, and Vattel’s Law of Nations. The entire Constitution has to be read in the context of these books and other works that contributed to the legal understanding of the times. International law, in the minds of the Framers, was a law that applied to and applied in the United States. (The very word “treaty” presupposes a definition of treaty under customary international law, for example.) I think that the American public law scholars who have made their reputations parsing the Constitution feel blindsided by the new references to international law by the Supreme Court. Their reaction is to lock the door against any “foreign” interpretations (i.e., interpretations that hadn’t occurred to them). However, we are just as much physically and economically embedded in the world today as we were legally embedded within it at the time of the ratification… Read more »
It’s not unusual for disoutes to arise about founders intent, how it should be determined, etc.
If the implications of the “decent respect language is relevant and disputed, why would this necessarily raise questions of good faith?
Isn’t it more common that the parties argue conflicting theories before the tribunal?
It would seem that if the “internationalist” view of thr “decent respect” phrase is based a falsification, the “nationalists” could other side raise this under hmm… rule 11(?)
Refrence is made to “misquotaion” “playing fast and loose” etc. Is the truth is so apparent here that any who argue a diffent view are approriately accused deceiving the courts?
In death penalty litigation, lawyers for the condemned would be obliged to raise the decent respect issue, would they not.