More on Foreign Influences

That is very helpful Peggy. I think you raise some interesting arguments regarding selective appeal to foreign opinion and provide a useful critique of Kontorovich.

This underscores for me yet again what is most interesting in the debate about originalist appeals to reliance on foreign opinions in constitutional adjudication. It is that the internationalists have been quite successful in using this one passing reference in the Declaration as a critical vehicle to frame the debate. We thus debate the motives of the draftsmen of that document and try to analogize from their motives what our motives should be in dealing with foreign opinion today.

My point in citing to Washington’s Farewell Address is that reliance on the Declaration’s language is no more legitimate (indeed arguably is less legitimate) than reliance on Washington’s Farewell Address. The Declaration was a 1776 appeal to foreigners to support the American revolutionary cause. Washington’s Farewell Address was a 1796 appeal to Americans for support in the American republican cause. It was a valedictory speech by Washington (and the original draftsman Hamilton) to his fellow Americans on how they should run the country now that he was exiting the stage. Washington’s message, as discussed at length in Joseph Ellis’ book, His Excellency, was that Americans should be very suspicious in foreign relations. Why? In large part because in his view their motives are not pure and their conduct is intended solely to further their own national interests, not the American cause. (I’m not suggesting that is my view of foreign relations today, but it most certainly was our Founding Father’s view.)

I should again emphasize that I do not think it is appropriate to rely on either the Declaration of Independence or Washington’s Farewell Address to help us decide whether we should rely on foreign opinion in constitutional interpretation. Had the Constitution provided some guidance on the question, that would be another matter. But unlike some modern constitutions, our Constitution gives us precious little guidance.

Thus, I am not suggesting that nationalists should use the Farewell Address as an originalist appeal to advance the cause of non-reliance on foreign opinion in constitutional adjudication. But they could use it to rebut the internationalist assertions of founders’ intent based on proof-texting from the Declaration of Independence.