Response from Kontorovich on Foreign and International Sources

I’ll begin with clarifying a point from my article that Prof. McGuinness mentions. My article acknowledges that the Framers used the Declaration in part to secure the international law benefits of recognition and trade relations. I would not make too much of this fact in the context of the present debate. The point is distinct from the Founder’s invocation on the “opinions of mankind,” and also from the question of looking to foreign law. Members of the Congress believed a formal announcement of the birth of the new nation was needed because it is a prerequisite to recognition and treaties; that is why they agreed to issue the Declaration. But that motivation behind the Declaration is also distinct from the primary motivation of convincing Britain’s enemies that the Colonists break with their mother country was irreparable. It was the latter purpose that gave rise to the phrase “a decent respect to the opinions of mankind requires that they declare the causes” of their revo
lution. Securing the “international law” benefits could be done by a simple pronouncement of independence; convincing others that we were serious about it required a recitation of unpardonable sins of Britain.

Professor McGuinness suggests that the Founder’s selective definition of “mankind” – basically, France and Spain – undermines my argument that one of the dangers of using foreign law is that judges will use it selectively. What’s wrong with the Justices looking only to the laws of our “friends” to gain their “respect” if the Framers appealed to the opinions of potential allies? If the Framers tried to ingratiate us with other nations by convincing them of our determination to fight Britain in the Revolutionary War, what’s wrong with the Court ingratiating us to allies by showing our distaste for the juvenile death penalty today?

This rather gets to the heart of the matter. The difference is the Declaration was written by Congress, Roper by the Court. Trying to ingratiate America with foreign countries is a matter of pure foreign policy and is not a goal that the Court is constitutionally authorized or institutionally capable of pursuing. Ingratiation has costs – here, the abandonment of an instrument of criminal punishment. Whether those costs are worth the benefits in increased “respect” is surely a determination for the political branches. I, for example, predict that this increased “respect,” if it has in fact been won by Roper, is worth little in itself to all except a small American elite, and certainly will not make any practical difference to our foreign relations. Maybe I’m wrong, and the internationalist turn in constitutional interpretation will make us popular where we previously were not, and open the door all sorts of foreign relations benefits. But the question is clearly debatable, a
nd it is not a debate for lawyers or judges to be involved in. It is purely a policy matter. In other words, Congress and the President can look over the crowd of nations and pick out our friends. The Court is not even in position to determine the political question of who is a friend, and the even more political question of which friends’ respect we should try to gain. (Saudi Arabia, for example, is a “friend,” but surely the Court would not try to hard to win its respect by adopting Saudi notions of punishment.)

I agree with Professor McGuinness that the Eighth Amendment can, in principle, be distinguished from others in terms of the appropriateness of looking to foreign law. I’m not sure I agree with this view, but it is certainly plausible to argue that the word “unusual” invites a comparative analysis. However, while this distinction can be made, I do not think it has or will be made by the Court. The Court’s recent use of foreign law has not been limited to the Eighth Amendment – Lawrence was a Due Process case, and with that door open, its hard to see how the other ones will be kept shut. In my Green Bag article, I focused on Roper simply because it was more recent and used foreign law more extensively, but the scholarly and judicial push for internationalist interpretation is not confined to such cases.

Certainly some of the scholars who I criticized in for misquoting the Declaration, like Harold Koh, make far broader claims for the usefulness of foreign law in constitutional interpretation. Justice Ginsburg, in her speech at the ASIL meeting, suggested that foreign and international sources are relevant to all questions of constitutional interpretation, and even reminded the audience that she upheld Michigan’s affirmative action policies partially on basis of an “international understanding” that such policies are benevolent. Professor D’Amato, in comments to the earlier post, suggests that one reason to look to foreign law is that we are “physically and economically embedded in the world,” and thus should be legally embedded. That goes for beyond the Eighth Amendment.