20 Sep Steven Calabresi: Unreconstructed Exceptionalist
The letters section of the Times is probably not long for the world but it does still have the function of pulling out pithy representative statements from what would otherwise be lost in the haystack of the paper’s website comments section. So here’s this from Northwestern University lawprof Steve Calabresi on Adam Liptak’s excellent piece from Friday on the flagging international stature of the U.S. Supreme Court:
Those of us concerned about citation of foreign law — your article quotes me as one of them — believe in something called American exceptionalism, which holds that the United States is a beacon of liberty, democracy and equality of opportunity to the rest of the world. We think that it is a good thing that constitutional liberties like freedom of speech and of the press are protected more vigorously in the United States than in any foreign country.
We believe that the rights of man, as President Kennedy said in his Inaugural Address, “come not from the generosity of the state, but from the hand of God.”
The country that saved Europe from tyranny and destruction in the 20th century and that is now saving it again from the threat of terrorist extremism and Russian tyranny needs no lessons from the socialist constitutional courts of Europe on what liberty consists of.
This mentality was once pretty pervasive; the possibility that the US might have anything to learn from other countries when it came to rights just didn’t compute. Whatever America did defined rights. But the political culture has clearly begun to shift. How many 25-year-olds, even conservative ones, would be putting it this way?
I believe it was Justice Kennedy’s opinion (a Reagan appointee) in the opinion (the cite escapes me) on the death penalty case involving the mentally retarded defendant that caused a fire-storm regarding citation of foreign law. I believe Justice Kennedy was attempting to bring the US into compliance with international norms. He was not taking any “lessons” from anyone, especially not a “socialist” (!) court. What saddens me is that Prof. Calebresi manages to bring up in 3 paragraphs socialism, Russian “tyranny,” the “war on terror” and contempt for “old Europe.” This sort of doctinaire vitriol belongs on FOX news, not coming from the pen of a distinguished law professor. I guess with Justice Scalia leading the charge in demeaning the court and the profession with ideological invective. personal attacks and results-based jurisprudence, I shouldn’t be surprised.
I think you’re underestimating the profound ignorance and dishonesty of “conservatives”, especially the young ones.
These people aren’t conservatives, they are fascists.
I’m 25, and I only wish I could put it that way.
Oh, I don’t know, Peter – some of us agree entirely with Calabresi; better count me as another unreconstructed exceptionalist. Some of us also think that Liptak’s framing of the issue as the “flagging” stature of the Court in the world as the problem is itself problematic and that it was an excellent article only if one accepts its question begging premise. The “flagging” stature of the Court matters only if you assume the conclusion that the Court is supposed to have stature in a world that does not share the defining premise that the Court’s authority and legitimacy derive from a particular political community and its people. Liptak assumes the cosmopolitan premise that the world’s courts and judges are engaged in some kind of common enterprise in which there are leaders and slackers. Why on earth should I assume that? Or appeal to the supposed cosmopolitan sentiments of twenty five year olds? Whatever the actual sentiments of American college students about one-worldism, they are not shared by, for example, their Chinese counterparts, whose nationalism is emphatically on the rise. Anyway, I thought the article did not take enough care to emphasize that the issue here is, and… Read more »
I am always somewhat bemused when I hear statements like Prof. Calabresi’s, about how America is a beacon of liberty, equality and freedom. McCain has recently made similar statements. Yet while American constitutional law and American initiatives in the realm of international law have certainly played an enormous role historically in the development of human rights around the world, it is difficult to support the notion that fundamental rights in the United States are currently better protected than in other Western countries. Aside from freedom of speech, which does enjoy stronger protection here than most other countries, the same cannot be said of other rights and freedoms. The enforcement of the right to equal protection and not to be discriminated against in the U.S. does not compare at all favourably with the constitutional protections in Canada and Western Europe. Separate but equal is alive and well in the treatment of gays and lesbians, and discrimination on various grounds is given a pass by the relaxed scrutiny test of the courts. Privacy rights are weak, mobility rights undermined by no-fly-lists and the like, and the erosion of the rights of due process in the post 9/11 era, from the criminal context,… Read more »
With due respect where the Europeans have greater protection or seem to be operating with greater wisdom (in my opinion, privacy law), in contrast, American law and jurisprudence were imparted with an fundamental idealistic vision from the very beginning, which it maintains to this day. There are instances where that has lead the country astray, but politics without idealism is the maneuver for advantage of one group or one country against the rest, dreary and materialistic. So while the European laws may, in individual areas and according to one’s taste, be “better”, “more humane”, “enlightened”, that law’s foundation lies in whatever is in the legal code of the moment, and can be swept aside by the next turn of popular opinion. On the other hand, American exceptionalism is based on its foundational stories, subsequently nurtured by precedent, example and history, and expects to continue to change as new challenges are faced. So citing the decisions of foreign jurisdictions, which ir probably a wonderful political science exercise, in judicial terms graphs a alien branch into our decisions. Whereas the European system can and does wipe those decisions away with new constitutions, the American system expects that… Read more »
Calabresi is an idiot. I don’t know how to put it any clearer than that. He has said that President Bush won the war in Iraq despite the fact that Mike Mullen, the CJCS and General Petraeus are on record as saying that that is most certainly not the case. But hey, I guess he knows more about the situation than they do right? Calabresi’s credibility is null and void in all instances.