Linos Book Symposium: Comments by Roger Alford

by Roger Alford

I commend Katerina Linos’ book to our readers and echo the many positive comments that others in this book symposium have shared. Her theory of bottom-up democratic diffusion of norms addresses many of the concerns that have been voiced regarding the democracy deficit that occurs when policy elites borrow from abroad.

I want to push Katerina a bit on the question of actors involved in the diffusion process. She notes that “many academics, judges and commentators emphasize how references to foreign law reflect elite predilections antithetical to the views of ordinary voters, especially ordinary Americans.” (p.26). The context of that criticism, of course, is constitutional comparativism by the Supreme Court in cases such as Roper v Simmons and Lawrence v. Texas.

Almost ten years ago I too expressed concern about the countermajoritarian difficulty of the Court adopting international and foreign norms that run counter to American majoritarian values. As I put it in this article, “the international countermajoriatian difficulty would suggest that international norms cannot be internalized within our Constitution unless such norms are first internalized by our people as our community standards…. To conclude otherwise would grant countermajoritarian international norms constitutional relevance as a community standard.” (p. 59).

Katerina does not address constitutional comparativism per se, but she clearly voices her support for the democratic diffusion of norms. Her book presumes that “international norms and democracy are mutually reinforcing” and that “democratic processes are an engine, not an obstacle, for the spread of policies across countries.” (p.2). The book also presumes political rather than judicial avenues for the diffusion of norms, with elected politicians constrained to borrow from and reference large, rich, and proximate countries and prominent international organizations to advance their own policy preferences.

So my question for Katerina Linos is whether her theory of democratic diffusion supports or undermines arguments for constitutional comparativism. She explains at length how democratic diffusion occurs, but does not clearly indicate her preference for this type of diffusion over alternatives. Does her convincing case for democratic diffusion undermine undemocratic diffusion by policy elites in the judiciary who are unresponsive to and unconstrained by majoritarian preferences?

In short, does her theory posit that policy diffusion is better when it occurs through democratic processes than when it is imposed by judicial elites? To take concrete examples, is it better with controversial questions such as juvenile death penalty (Roper v. Simmons) or gay marriage (United States v. Windsor) for policy preferences to be advanced through democratic diffusion or judicial diffusion?

My own sense is that the Supreme Court experimented with policy diffusion of global norms through constitutional adjudication ten years ago, but has since retreated from that approach, and that democratic diffusion of global norms is the new normal. Indeed, just yesterday in Windsor the Court expressed its sensitivity to the democratic diffusion of norms with respect to gay marriage:

In acting first to recognize and then to allow same-sex marriages, New York was responding ‘to the initiative of those who [sought] a voice in shaping the destiny of their own times’…. The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other…. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. (pp. 19-20).

http://opiniojuris.org/2013/06/27/linos-book-symposium-comments-by-roger-alford/

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