Justice Ginsburg on Using Foreign and International Law in Constitutional Adjudication
Justice Ginsburg has fired the latest salvo in the ongoing debate about the Court’s use of foreign and international law sources in constitutional adjudication. On Friday, she gave a speech to the International Academy of Comparative Law at American University, entitled “A decent respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication. Not surprisingly given her earlier opinions, Justice Ginsburg comes out strongly in favor of the Court’s use of foreign and international law materials to interpret U.S. law, including the Constitution. She begins with an historical defense:
From the birth of the United States as a nation, foreign and international law influenced legal reasoning and judicial decisionmaking. Founding fathers, most notably, Alexander Hamilton and John Adams, were familiar with leading international law treatises, the law merchant, and English constitutional law. And they used that learning as advocates in legal contests . . . . The law of nations, Chief Justice Marshall famously said in 1815, is part of the law of our land. Decisions of the courts of other countries, Marshall explained, show how the law of nations is understood elsewhere, and will be considered in determining the rule which is to prevail here. Those decisions, he clarified, while not binding authority for U. S. courts, merit respectful attention for their potential persuasive value.
After quoting from Paquete Habana, Ginsburg turns her attention to the hostility to both foreign and international law on display in the U.S. Senate during Elena Kagan’s recent confirmation hearings (e.g., including the Senator who indicated he was “troubled” that Kagan “believes we can turn to foreign law to get good ideas”). She contrasts these exchanges with The Federalist’s use of the law of nations and both positive and negative examples from abroad to defend the Constitution.
In terms of her own views, Justice Ginsberg did not mince words:
On judicial review for constitutionality, my own view is simply this: If U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measuring ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights. . . . The U.S. judicial system will be the poorer, I have urged, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.
And the rest of the speech continues in a similar vein, with Justice Ginsberg raising and then contesting the views of foreign/international law opponents (including Justice Scalia, Judge Richard Posner, and Professors Eric Posner and Adrian Vermeule) while citing a series of “examples” of recent cases where the Court reached a decision with the aid of foreign and international law sources (e.g., Atkins v. Virginia, Lawrence v. Texas, Boumediene v. Bush, Hamdan v. Rumsfeld, and, of course, Roper v. Simmons).
For me though, the most interesting part of the speech was Justice Ginsburg’s list of other sources besides foreign and international law that are appropriate for constitutional adjudication:
Judges in the United States, after all, are free to consult all manner of commentary — Restatements, Treatises, what law professors or even law students write copiously in law reviews, and, in the internet age, any number of legal blogs. If we can consult those sources, why not the analysis of a question similar to the one we confront contained, for example, in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?
Did Justice Ginsburg just authorize judges to use legal blogs in reaching their decisions? I think she did. That said, I think the implications for Opinio Juris are pretty clear — given our dedication to discourse from ALL sides on issues of international and foreign law, isn’t it just a matter of time before we get cited by the Court? I’m counting the days.