25 Sep Noah Feldman on Judges Making Foreign Policy
Noah Feldman has this long think piece in the New York Times Magazine. Feldman deftly describes for an intelligent lay audience a fork-in-the-road moment for the Court and its posture towards international law and institutions. We have the sovereigntists on the one hand and the internationalists on the other. Each had a major win last Term, the internationalists with Boumediene and the sovereigntists with Medellin (those of us in the field might trip over the description of the latter as “largely overlooked,” but let’s face it, the decision was probably not discussed over many dinner tables).
The takeaway: judges should be sensitive to international context beyond the doctrine. The merits aside, he concludes, ‘”what justifies [Boumediene] is the practical necessity and importance of reassuring the citizens of the United States and the world at large that the United States had not given up the role it assumed after World War II as the chief proponent of the rule of law worldwide.” For its part, Medellin was tarnished by a “problem of timing. . . The message sent . . . in the world and at home, [was] precisely the wrong one for this historical juncture, when the United States needs — at least for the moment — to convince the world that the project of international legality is one in which we believe.”
I’m on board for that. Although even in a best-case scenario we’re probably in a go-slow mode for further progress towards an internationalist Constitution, the Court appears increasingly sensitized to its place in the world, and appropriately so. Of course its direction on this hangs in the balance (Feldman’s ostensible purpose with the piece is to dramatize in yet another way the next round of judicial appointments). But even if the Court retreats to the sidelines more aggressively, as would likely happen in a McCain administration, there will be other actors to pick up the ball. The Court is a more important player on foreign policy than at any time in recent history, but still not so important a player as to stop the juggernaut of IL.
As I wrote here: Under Feldman’s reading of conservatives’ and liberals’ conceptions of international law, conservatives have an inward orientation, in which law—or, in other words, the discourse arm of government coercion—must be legitimized through democratic means. This is a powerful objection to the encroachment or influence of international law on domestic affairs: why should we let foreigners, who do not live here, who may not share our interests (or who may have interests who run opposite to ours), and who may come from political cultures that do not share our procedural or substantive values of freedom and democracy, tell us what to do? Why should we let international courts, over which we exert no oversight (ability to fire or stack), create obligations for us, when divided republican government and federalism have made us what we are today? Though these are powerful reasons against letting the “opinions of mankind” (per the Declaration of Independence) get too much sway over us, the biggest drawback is the limited scope of who is to be a subject of rights. The subtext to this attitude is basically that of common fate—or if you prefer, American exceptionalism. But if we value family-centric morality over egoistic… Read more »