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April 12, 2009

Comments

Without defending Surber's position in any way on its merits (mostly because I don't agree with it), I can surmise that he likely meant British common law as it evolved prior to 1776, or 1789, or whatever, sort of making it the ancestor of American common law. Just because his position appears xenophobic doesn't mean he's inconsistent.

I'm not sure I agree with you on this one Publius. British Common Law and Magna Carta were both actively incorporated in to our constitution and our laws through the legislative process. International Law, was not. Judges currently reference the Magna Carta and British Common Law with the understanding that these texts provided a working framework for US Law. Establishing a standard for US cases with precedents set by International Courts enhances the Judicial Branch with unchecked powers and is deeply troubling because:

1. International Law Cases would be subject to *significantly and materially* different statutes than a case in the United States.
2. It would allow the Judicial Branch to legislate in that they could pick and choose precedents at their respective whims.
3. It would circumvent and undermine the purpose of the Congress. Judges would effectively be using precedence and Law that would be untouchable by the Congress and therefore completely unchecked.

In the event that Judges need direction with respect to interpreting cases that fall within those so called "gaps" in applicability of law, we should work through the legislative process to fill them. Slow yes but representative, indeed. Publius, I think you should acknowledge that using a case as precedent is a bit more consequential a process than simply "referencing" or "looking". The use of Precedent in US Law is in effect the establishment of a Standard that can be used to interpret current cases. Establishing and acknowledging a standard is *NOT* the same thing as "looking".

Magna Carte, as in a la?

I think that the best serious defense of this anxiety is probably Rosenkranz, here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1357698

Via Orin Kerr, here:

http://volokh.com/posts/1237535072.shtml

(SSRN is down for a bit right now.) If your constitutional theory is some form of textualism or originalism, then you might think that materials that do not illuminate text or original intent / original meaning would be distracting, harmful, and a waste of resources. I think I understand that intuition, but I'm not sympathetic because I don't subscribe to originalism or textualism.

You're probably right that know-nothings like Surber are susceptible to a banal (and feverish) version of this anxiety, for all kinds of reasons. The version tied to prior interpretive commitments has a little more bite, though, I think.

Warren: I can surmise that he likely meant British common law as it evolved prior to 1776, or 1789, or whatever, sort of making it the ancestor of American common law.

That's what I would have assumed, too - though properly speaking he should have said English common law, since there's no such thing as British common law: some religious conservatives claim that the law in the US derives from "the Bible", and this is historically flat wrong. The US, like most British colonies, cloned its legal system from English common law and went on. (India did the same thing.)

Well, dem forriner's law is like a pariah's shadow to a Brahmin or Galileo's telescope to certain priests. It makes impure by mere presence without even physical contact and requires ritual purification.

"British common law" is ok for him.

English common law or Scottish common law? They're not the same, you know. That expression on it's own is enough to show up Surber up as an ignoramus in its original sense - a lawyer who submits a plea so badly drafted that the court can make no sense of it.

(The answer is almost certainly English. I don't believe there's much Scottish law in America.)

Well, as I noted in the thread preceding this one, if courts aren't supposed to be looking at foreign law or international law or norms, the Supreme Court has been doing it all wrong for the last couple of centuries.

Seretse is worried that international law might be cited as "precedent". This is absurd - no one says international law is "precedent". Precedent is defined as the body of decisions of the deciding court (or a higher court whose decisions are binding). Judges are bound by "precedent", but can seek guidance on new issues from other courts, scholarly treatises, international law, facts in the newspaper, and a whole lot of other things - that's ALWAYS been true.

Do people like Don Surber actually deserve mention? So many people in this debate don't know what they're talking about, that I think responding to them legitimizes what is a false issue.

People like Seretse obviously don't know anything about the common law, or the history of American law, which is based on common law. Perhaps we shouldn't feed national trolls? I mean, really, people, go read some cases from any century you choose - this is the way the law works.

It is ironic that people who are now saying that judges should only consider statutory law are really supporting a European civil law system, not a common law system. Is this what the Founders intended? Hardly.

Doesn't Louisiana use French civil law instead of English common law? Is Don Surber willing to make another exception in this case?

So, no Ten Commandments?

I get it that many of you folks enjoy debating the niceties and meaning of all possible legal issues but why would anyone in this country (the USA) even consider the views of other nations in the exercise of our domestic legal processes when almost none of those nations can even get the individual human's right to free speech right? Jonathan Turley's article in the Washington Post today is a good summary of just how bad things are getting around the world.

And another thing. Several here have gone to great lengths to minimize the issue being debated and suggesting there is really no substantive issue. Yet in 3 days 3 threads have been devoted to this meaningless discussion. What's up?

than extreme ideological nationalism.

Izzat the same as the judicial recrudescence of "American Exceptionalism," which is the underlying obsession of the Wackloon/Fucktard Right?

Doesn't Louisiana use French civil law instead of English common law? Is Don Surber willing to make another exception in this case?
Posted by: Adam B. | April 12, 2009 at 08:04 AM

Yup: Code Napoleon applies in all civil maters in the Gret Stet of Lusiyanna...

Nice point about the "Commandments," too...Might as well rely on the Hamurabic Code, right?

This fear of judges merely looking at international law seems akin to the Christian fundamentalist's fear of being exposed to anything not Christian enough - books depicting child wizards, music that mentions sexual desire, gay people - for fear that he'll be tempted to stray.

Are the fundamental principles of American law so fragile that we can't bear to have our judiciary occasionally looking for context and ideas in decisions made elsewhere? Judges ought to have as many resources available to them as possible when making key rulings.

Of course, one place this comes from is conservative bloodlust for the execution of 16-year olds. Darn the Supreme Court for taking into account whether everyone in the world other than the Iranians regards this as barberous!

I suspect it's a combination of two things. First, I think a lot of non-lawyers (or rather: people who haven't read a bunch of legal opinions) genuinely do not get the extent to which the law requires interpretation, not in any sinister "OMG the Constitution is a living document and it just underwent metamorphosis!!" kind of way, but because no set of general pronouncements makes its application clear to all cases.

I mean, they do not get the feature of laws that makes it necessary for laws Congress enacts to be followed by great huge masses of regulation, without its being true that those who write those regulations are usurping Congress' power. (Not that regs can't do that, but that normally they fill in gaps that necessarily exist in laws of reasonable length, and they normally have gaps of their own, though hopefully smaller ones.)

If you don't see that, then any use of anything other than the laws and the Constitution has to be a matter of replacing the laws with something else, something that (not being the Constitution) has no right to replace them.

The other thing, of course, is xenophobia.

Sapient, I have become convinced that this discussion is a waste of time. People who don't understand how the law works will never become convinced of anything.

I'll take one last shot, though. You know, Seretse, if you had to wait for a legislative enactment for every single case that raised a legal issue, the courts would be paralyzed. People with grievances/claims would have no recourse, for years on end. Suppose your contract is governed by North Dakota law, and you've been sued in Minnesota. Suppose there's a 'gap' -- that 6 state legislatures have addressed (but not ND) and courts in 35 states -- again not ND. Can the Minnesota court rule? Does the case sit suspended while you wait to see in the ND legislature is going to act, given it's part-time nature? Or do you just win, because there's 'no law' on the question?

GOB, what have you got against decent respect to the opinions of mankind?

"First, I think a lot of non-lawyers (or rather: people who haven't read a bunch of legal opinions) genuinely do not get the extent to which the law requires interpretation, not in any sinister "OMG the Constitution is a living document and it just underwent metamorphosis!!" kind of way, but because no set of general pronouncements makes its application clear to all cases."

The problem is that a lot of non-lawyers genuinely notice that the extent of interpretation going on vastly exceeds anything that can be justified by the amount of ambiguity actually present. (Transformation of the interstate commerce clause into a power to regulate non-interstate non-commerce, for instance.) Something lawyers are trained to ignore, or accept as reasonable.

Understandably so, noticing that the Emperor wears no clothing can only serve to distract his courtiers, he's the Emperor even if he is naked, what purpose does it serve to maintain an awareness that he's starkers?

But we laymen aren't part of the court, we've got no reason to pretend to see the finery.

Legally speaking, a North Dakota court, trying to interpret a provision of North Dakota's adoption of the Uniform Commercial Code, looking at a South Dakota court's interpretation of South Dakota's parallel provision of the UCC, is just as much relying on "foreign" law as the U.S. Supreme Court would be in noting a decision of a Pakistani court. To one state in the union, laws in other states are just as foreign as laws in other countries. Does that mean that state courts shouldn't look at decisions in other states?

good q dan

CharleyCarp,

Nothing against decent respect to the opinions of mankind, where deserved. I have some trouble with those who live under the US constitution but show little respect for it. I'm encouraging those who post and comment here to speak their positive thoughts and opinions (if they have any) regarding the US constitution and its position as the supreme law of the land, but to little avail. The silence is telling. Most of the response I get is in the form of diatribes on the failures of conservatives thought processes. Ad hominem, anyone? There is a lot of that here and surprisingly so from such an esteemed group of legal minds. One can know the law A to Z, but if you are unwilling to show that you believe in and support the law that you live under then something is missing. The silence is deafening. How about some thoughts on the Bill of Rights or on the myriad free speech and religious freedom abuses going on around the world, and notably in Europe, as outlined by Turley? These events should inform the ongoing debate in this thread.

Hilzoy,

When you say 'the other thing, of course, is xenophobia', is this not ad hominem, with no really proper place in the debate?

Not if it is demonstrably true, GOB.

GOB: As it was not directed at any commenter, no. It's fine, I think, to speculate about why people in general might be tempted by an argument.

Hilzoy,

Your elite attitude is showing when you say those you describe as having no understanding of how much interpretation it takes to have laws take proper effect are the problem. These are not very likely to be the people who are engaged here on either side. A lot more of the US people have an understanding of this than you seem to give them credit for. Do you think our people could live their entire lives under our income tax system without having an understanding and some sense of how much regulatory and judicial interpretation goes into that system? This just happens to be an area where their awareness is constant. But that does not mean they don't understand the same goes on in many other areas, environmental matters being another where there is a high level of awareness. Lawyers and professors are not the only people who know things.

Nothing against decent respect to the opinions of mankind, where deserved.

And I have nothing against a decent respect to the opinions of good ole boys, where deserved. So, GOB and I agree about at least one thing: not all opinions deserve respect.

Well, two things, actually: like GOB, I too believe that the Constitution is "the supreme law of the land". If we have some trifling difference over what the Constitution means, as applied to any particular case or controversy, we can hash it out without reference to what any foreigner thinks.

After all, disrespecting certain opinions because they are held by foreigners is not "ad hominem" or anything. It's merely a case of having "positive thoughts and opinions" about the good ole USA.

--TP

I have some trouble with those who live under the US constitution but show little respect for it.

I thought you were a Republican?

"The silence is telling."

No, it's not. People don't go on about things they take for granted.

Hilzoy,

We can agree to disagree on the ad hominem point. As you describe your speculation I will agree because I know there are people that description fits. At the same time, the same technique is often used to discredit an argument by attacking the whole class of people who subscribe to a particular position, witness pinko punko at 12:23.

Thank you, TP, for breaking the silence.

I don't recall ever claiming to be a republican, but I do claim to be conservative.

Gary, maybe that's part of the problem. As a matter of fact, this is a point where I will take Hilzoy's approach and suggest we may have a lot of people in the country who take it so much for granted that they don't bother to learn what it says.

Why is it the same people who complain about foreign laws fueling our own also seem to prefer our laws be decided by a book written in the middle East a couple of thousand years ago?

Why has GOB not denounced the killing of kittens in this thread? The silence is telling.

"As a matter of fact, this is a point where I will take Hilzoy's approach and suggest we may have a lot of people in the country who take it so much for granted that they don't bother to learn what it says."

That's undoubtedly true. However, as regards people who frequent this blog, we have the case of many of them having written so many hundreds of thousands of words about constitutional freedoms and rights, and civil liberties, and the history and meaning thereof, and the ways they play out, or don't, in contemporary America, that reiterating them yet again without terribly good cause, and in a non-repetitious way, is unlikely to occur merely because someone new to the blog demands that they do so in a completely generalized way, purely for his satisfaction.

Basically, asking people to be dancing monkeys doesn't work well.

To one state in the union, laws in other states are just as foreign as laws in other countries. Does that mean that state courts shouldn't look at decisions in other states?"

There is not quite as much controversy about whether state judges need to develop state common law as an ongoing matter. Federal common law is inevitably more limited, since federal law is more limited and the jurisdiction of federal courts is more limited.

The basic question is about constitutional interpretation; whether to look to foreign law today is a secondary debate, and the answer is mostly determined by your choice of interpretive theories. That's why the debate is not particularly illuminating, and not even really a debate.

English common law or Scottish common law? ...

(The answer is almost certainly English. I don't believe there's much Scottish law in America.)

It's English common law.

Scotland doesn't even have a common-law based system. Scottish law is largely based on Roman civil law.

As for Scottish law in the U.S., the only example I can think of is Arlen Specter's attempt to vote "Not Proved" in the Clinton impeachment trial.

TP,

I liked your penultimate paragraph, couldn't have said it better myself. I don't know what to make of your last. My opinions expressed in this thread really have nothing to do with respect or disrespect for foreigners' opinions or laws but only about whether there is any place for them in our judicial deliberations and decisions . That said, I repeat that there are a lot of free speech rights abuses in foreign law that I do not respect and this helps illustrate why I'm on the side of this issue that I'm on.

I also continue to feel that the key to understanding the Koh "debate" is to recognize that it is not about proving a series of claims about the law, but rather about:

1) Rallying a broad section of the public against the Obama administration by suggesting that Obama is a danger to our very system of government.

2) Stopping the Koh nomination in its tracks.

If these arguments manage to contribute to the first goal (and there are many other parallel strategies in that direction) or accomplish the second, they will have served their purpose regardless of their inherent merits.

And if you want to understand why these arguments are being made, one should do so in relation to their relative ability to accomplish these goals compared to other possible anti-Koh approaches.

This is about politics, not legal theory. And it's especially important for Koh's supporters to understand this.

This post seems to be focus shifting: in the last post, the issue is whether CIL is controlling even in the face of state legislation. Now we are debating whether CIL can inform an opinion.

They are vastly different things.

Is there some reason that we started off critiqueing Whelan, and now that we are shifting the focus from control to inform, there is no Whelan post to discuss?

what Ben Alpers said @ 1:20.

it's not about law or logic or reason. it is, like everything else when talking about politics, about politics.

jrudkis - technically, the Koh post from the other day was about the role of INTERNATIONAL law. This debate is more far-reaching but covers the acceptable role of FOREIGN law.

For instance,t here's a difference between the Geneva Conventions and French contract law.

(warning: wonkish comment from a lawyer to follow)

part of the problem, I think, is understanding what "International Law" is.

There's actually two kinds of International Law - there's treaties, which are akin to contract law between nations. Basically, two or more nations agree that they will or will not do something. Then there's customary international law, which is closer to the common law. But really, it's just a recognition of "this is how nations interact among themselves." Some provisions of customary international law: you don't, as a leader of a nation, endorse a candidate in an election for another nation. The thing is, customary international law changes from time to time, because we start doing things differently. One could argue that slavery (or slave trading) is now a violation of customary international law (although, I do believe this has been codified by treaty) whereas 200 years ago, slavery would have been permissible under customary international law. A more relevant issue would be piracy - a clear violation of customary international law, because nations have all come to the conclusion that piracy (which typically happens outside the jurisdiction of any nation) is unacceptable.

I would posit that the opposition to even considering customary international law (particularly in a case involving international law) would be based, in some part, on the fear that it may be determined that the US is out of step with other civilized nations, and thus, not so civilized, after all.

There is another problem, I noticed in law school when talking about the role of the court with many of my conservative friends, and that is the idea that courts should be allowed to declare what are constitutional rights. This really, goes back to Marbury v. Madison for a lot of them. The idea that the Congress (or more recently, President) should be the branch that is more equal than it co-equals. I'm pretty libertarian in my views, and I don't generally trust majorities to determine minority rights, so I've got no problem with courts declaring rights under the Ninth Amendment (a whole other argument) or other legal theories, but I actually had a friend in law school say that it was illegitimate for the court to do so and should be left to Congress/legislatures, because they are the voice of the people. To some extent, then, you can see this as another prong of the activist judges argument - in that judges are going beyond the four corners of the law being challenged in order to make a determination (there are actually some jurists/legal scholars (Scalia, among them, last I checked) that believes a judge should not even consider the legislative history of a law when trying to interpret it).

That said, I repeat that there are a lot of free speech rights abuses in foreign law that I do not respect and this helps illustrate why I'm on the side of this issue that I'm on.

This makes no sense. Because some other countries have some laws or policies you disagree with, a US court can't look to the reasoning of any foreign court? Should we, by the same token, stop teaching Burke, Adam Smith, Aquinas and Aristotle in our schools? After all, some other countries at some point did some nasty things.

And then what do you do about treaties? By the Constitution, treaties are the supreme law of the land, binding on the U.S. Shouldn't we take notice of how other countries are implementing the treaty?

I think it is very easy to understand. You gotta be thinking politics, not law. It is a simple political appeal to xeonphobia, meant to distinquish the good republicans, from the bad democrats. The former believe in a strong version of exceptionalism; Americans are exceptionally good, the rest of the world is exceptionally bad. Contamination by foreign ideas is unholy.

It is all about stroking the amygdala's of the voters, and nothing to do with logic, or law.

Scott P,

Are you suggesting we look to Canada, the United Kingdom, and France among others in order to understand the appropriate legal structures for curtailing free speech?

"Are you suggesting we look to Canada, the United Kingdom, and France among others in order to understand the appropriate legal structures for curtailing free speech?"

Since he said absolutely nothing of the kind, why would you ask such a lunatic question?

Why on earth do you think anyone here is interested in curtailing free speech?

"on the fear that it may be determined that the US is out of step with other civilized nations, and thus, not so civilized, after all."

Are you open to the possibility that, in some respects, we're out of step because we're more civilized than the rest of the world? Freedom of speech, for example?

If we're different from the rest of the world, it doesn't always have to be because we're worse.

Goodoleboy, since you asked, I'll say that I think our constitution is mediocre. It has a number of defects and its amendment process is so cumbersome and onerous that it cannot keep up with changes in society. Moreover, it is chuck full of anti-majoritarian choke points that cripple effective democratic action (starting with the Senate and electoral college).

As for free speech, I'll say that American law seems pretty good, but is not without flaw. Note that in the US, it is perfectly legal for newspapers to write outright lies about anyone leaving their victims with no effective recourse.

Overall, our constitution is not terrible, but is not particularly great either, and over time its failure to adapt makes it more and more problematic.

I'm sorry this isn't what you wanted to hear. When I feel the need to worship and praise without reservation, I go to church. When it comes to matters of law, I prefer to be more analytical and clear-eyed.

Reality check, please.

Are there any cases of actual US law, either standing or proposed, being overruled by international law (customary or otherwise), or by the laws of any other nation?

Are we actually talking about anything in practice?

Or this is a purely theoretical argument?

This foreign-domination hysteria is being whipped up for use in case war-crimes indictments come in from abroad. How can people be baffled by this? This is all to undercut the Geneva Convention and ICCPR Article 7.

Russell: The argument is theoretical in that if we weren't having the argument, the law would be unchanged from what it has been for the last 200 years.

For example, one of the formative treatises of the common law of the United States, a work cited over and over again by early (19th century) jurists struggling with cases that came before them was Blackstone's Commentaries on the Laws of England. An interesting passage, amazingly relevant, follows (as edited to turn f's into s's, etc):

"IN arbitrary states [international] law, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power: but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in it's full extent by the common law, and is held to be a part of the law of the land. And those acts parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world. Thus in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, averase, demurrage, insurances, bottomry, and others of a similar nature; the lawmerchant, which is a branch of the law of nations, is regularly and constantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other rule of decision but this great universal law, collected from history and usage and such writers of all nations and languages as are generally approved and allowed of."

Anyway, you can read more here.

I'm sure that this historical note won't be relevant or persuasive to those who are posting here without any clue as to how the common law works, how it was brought to most states of the United States from England, how it is a massive body of most of the appellate decisions arising over the past 235 or so years, how the collective wisdom of the ages is incorporated into a ever-changing organic body of law which (although no doubt flawed) has managed to have been flexible and responsive enough to have enabled the United States to become and continue as one of the most privileged and wealthy nations of the world, how it has managed to further the cause of human rights (imperfectly), etc.....

It just frightens me that people who are apparently ignorant of the most basic lessons of a high school civics class are now spewing forth on their hope that the entire United States system of common law that has served us for almost 250 years be replaced by some nightmarish hyperstatutory scheme.

All I ask is that the screaming Rush Limbaugh contingent stay out of the business of pontificating on the legal system. Trust me, you don't know anything about it.

Yes, this is not hard, and others who accurately describe this as a political, not legal, debate. You're right. No reason for me to get worked up. Sorry. It's just that people seem to be giving credence to these insane arguments.

That Spanish magistrate has done us AB-SO-fuukin'-LUTELY no favor by waving around the threat of apprehension of former Busheviks outside the USofA, for war crimes, etc.

Now we're never gonna get rid of ANY of the bastards. If they can't leave the country, we're stuck widd'em...

Are you open to the possibility that, in some respects, we're out of step because we're more civilized than the rest of the world?

Apparently you haven't read the ICRC report on Gitmo.

I don't share Turbulence's (moderate) disdain for the Constitution at all. Not in the least. (You don't know me, GOB, so I'm not offended. People who do know me would find the notion that I fail to appreciate our Constitution, and our legal heritage, pretty laughable.)

One thing about the past 8 years, though, is that I don't have to listen to lectures about fidelity to the Constitution from anyone who supported the prior Administration.

GOB, I'm sure you recognized the source for my phrase 'decent respect . . .' The idea was that the views of mankind in general, and foreign rulers in particular, were important enough to justify explanation on our part.

I wouldn't have expected you to recognize my quote from The Charming Betsy in the other thread. I wouldn't claim that there's never cause to say about some issue that Chief Justice Marshall got it wrong. But one who wants to take that position is going to have a bit of a hill to climb, so far as I'm concerned.

I'd say this about http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=22&page=1>Gibbons v. Ogden, as well BB, and would probably vote the other way on some Commerce cases.

Here's a nice little slice from Gibbons:

Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction, into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use. They may so entangle and perplex the understanding, as to obscure principles, which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and when sustained, to make them the tests of the arguments to be examined.

Mildly Against Citing Contemporary Foreign Law

The proposition that judges might read and cite foreign law the same way they read and cite law review articles should be uncontroversial - so long as that is all it is. But there is a legitimate fear that such citations are made with a subtext that goes beyond mere consultation, namely, that foreign practice is not merely just another intellectual perspective but rather has actual weight in domestic decisions - under the theory that there is some sort of obligation to move toward international conformity.

This is not conspiracy theory irrational fear stuff. One of the hot topics in law today is the idea of transnational regulatory networks: that lawyers, judges, and regulators in different countries, having no formal obligation to each other, could (and ought) to develop unitary norms and bring their respective countries into line with these norms.

It should be easy to see why American conservatives view such prospects with suspicion, given that the movement of America toward European norms tends to cut against conservative policy preferences.

Finally, Ginsburg has defended the practice of citing foreign law in more aggressive terms, saying, "I will take enlightenment wherever I can get it. I don't want to stop at a national boundary." Read charitably, that statement merely means that Ginsburg is willing to listen to ideas without respect to where on the globe they originate. But read uncharitably, particularly given the practice on the left of calling liberal ideas "enlightened" by way of contrast to those on the right, her statement means, "My country is too backward for my tastes, and I am happy to import foreign norms when they suit my policy preferences."

Rhetoric like Surber's is overheated and inaccurate, but it is not irrational nationalism for those on the right to oppose a practice that does threaten by judicial fiat to undermine their policy preferences.

More fundamentally, it is not irrational for Americans of any political persuasion to oppose the development in the judiciary of a sense of obligation, however mild, to bring US law into conformity with foreign norms.

Brett, if there's a difference the US may or may not be worse, but I think for a lot of republicans that would be an extremely threatening questions to even so much as ask. It would shock their conscience even to consider for a moment that another country MIGHT be better, in even some small respect, than the US.

In any event, this whole argument isn't about better or worse. When there's a direct conflict of law (say, European law makes it illegal to publicly advocate holocaust denial, American law does not), then within America, the American law wins every time. It's only when American law is not absolutely clear about how it applies to a given ruling (say, where there's no law one way or the other over gay marriage), that a judge with two statutes that both might (or might not) apply, might look to other countries and note that "these other judges faced with this same conflict reasoned X Y Z. Those are some interesting arguments that we hadn't considered." Or, if the law has a standard like "does X shock the conscience" then it might make sense for judges to look at what other similar countries... if respected judiciaries there have ruled in favor of something, this implies it might (or might not) be so very shocking. That can then be a data point they can use in coming to their own decision.

Ecks, nobody is obligated to ignore a slippery slope until they're sliding down it too fast to stop, and the bottom is looming. The use of transnational 'norms' to over-ride American norms is just getting started, and if you oppose it, now is the time to nip it in the bud. If judges are going to apply any norms in American, they damned well better be American norms.

For my part, I'll relish the screams of liberal outrage if judges ever start quoting transnational norms that run against the preferences of American liberals. It's not like there's a shortage of them.

"The use of transnational 'norms' to over-ride American norms is just getting started, and if you oppose it, now is the time to nip it in the bud."

Can you cite any example of the "use of transnational 'norms' overriding American norms, and have you purposefully ignored the many examples throughout the lengthy history of the United States where foreign law has served as guidance (not "precedent", not "binding authority") on decisions? The fact is, the United States has a political system which ensures that if xenophobes want to reinvent the wheel on any given philosophical issue (despite the fact that our country was founded on imported ideals), they can do it simply by electing people who will pass and execute xenophobic laws. So, really, the xenophobes need not fear - they just need to win elections. Fortunately, the rest of us dodged that bullet in 2008.

If judges are going to apply any norms in American, they damned well better be American norms.

Right. American norms, like English common law and the Napoleonic code.

The use of transnational 'norms' to over-ride American norms is just getting started

Seriously, what the heck are you talking about?

What transnational norms are overriding American norms? Not in your imagination, but in reality, today?

What the hell is the fuss about?

Jeremiah gets my endorsement for showing a well balanced understanding of what is going on with this topic.

More fundamentally, it is not irrational for Americans of any political persuasion to oppose the development in the judiciary of a sense of obligation, however mild, to bring US law into conformity with foreign norms.

So basically, we are having control issues.

We need to protect our laws against foreign influence, so we refuse to honor treaties that we helped formulate decades ago (GC, United Nations, e.g.)

We need to protect our society against foreign ideas, like that habeus corpus or a right to privacy.

We need to protect our land against foreign agression. (Military spending arguably greater than the rest of the world, combined).

So for a nation of immigrants, whose forebears (except for a small percentage on the margins) all came from abroad, we have decided that we no longer want the paterfamilias of our homelands to have any say in our lives.

Fraud Guy,

Much of what we do in the US has come from abroad and many of our best traditions and practices had their genesis here and are not popular abroad.. If we think there just might be customs or legal norms or practices abroad that are not in place here but should have our consideration, would not the political process (campaigns for elective office, for example) be a more appropriate path than judicial processes?

Non-wonkish lawyer's view:

So I went and read a little Koh, not being much up on Koh before. What little I read leads me to this conclusion:

Koh WANTS to "trigger transnational legal process" in areas of "American exceptionalism" that he considers wrong. That he finds America exceptional in both good and bad ways is not all that controversial in and of itself. That he advocates CIL or any other source of foreign law to do so means, IMHO, that when he speaks of "looking" at international law he is really saying "adopt it because it's better."

An example is capital punishment. He describes in his Stanford Law Review article about "American Exceptionalism" the international "assault" on America's view with approval. No doubt he would like Ginsburg to look at the more "enlightened" European view in this regard.

Part of the problem in this debate is not distinguishing between statutory interpretation vs. constitutional interpretation. When SCOTUS interprets a statute on non-constitutional grounds, Congress can override (with varying success and ease). When SCOTUS interprets a provision of the Constitution, a bit harder to override. It is therefore one thing to discuss the application of international/foreign law to the statutes of the USA and entirely another re the Constitution simply from the viewpoint of impact.

There is also a difference in process vs. "poll taking" when looking at international law and customs. If SCOTUS were, frex, to look at some novel idea of how to implement capital punishment fairly (process), I doubt the debate would be of the same nature. When SCOTUS wets its finger and puts it to the international wind, that is a different issue.

There is also the issue of representation. The Constitution represents the inherent power of the people of the USA, not the people of any other foreign land. When questions of interpretation arise, is there any legitimacy in looking beyond borders? Especially when SCOTUS tries to determine the "current" opinion re a certain subject (like capital punishment)? It's one thing to look at the laws of the 50 states and entirely another to look at the international community.

And lacking from the common law discussion is any perspective about the SUBJECT of the common law. Blackstone seems to be speaking of international law as applied to clearly international subjects (trade between nations, prizes, shipwrecks, etc.). Not having read Blackstone since law school really, is there anywhere that Blackstone says something like "don't hang the chicken thief if the laws of [insert foreign country here or "the majority of foreign jurisdictions"] don't allow it?" I doubt it.

The common law to my recollection was primarily if not almost exclusively concerned with domestic matters: contracts, torts, property and criminal law. I don't recall studying "the common law of the international community as it applies to the Rule Against Perpetuities." Maybe I slept through that part. I therefore don't think that arguing that the common law looked to international law advances the argument at all.

Koh is controversial and should be.

Hilzoy: I mean, they do not get the feature of laws that makes it necessary for laws Congress enacts to be followed by great huge masses of regulation, without its being true that those who write those regulations are usurping Congress' power. (Not that regs can't do that, but that normally they fill in gaps that necessarily exist in laws of reasonable length, and they normally have gaps of their own, though hopefully smaller ones.)

If you don't see that, then any use of anything other than the laws and the Constitution has to be a matter of replacing the laws with something else, something that (not being the Constitution) has no right to replace them.

The other thing, of course, is xenophobia.

I'd point out that the same people who take issue with Koh typically take issue with the regulatory state you just described as a "fourth branch" of government. And all based on the Constitution. There may be some knee-jerk conservatives out there (as there are Koh defenders) but generalizations like this don't help the discussion, IMHO.

To one state in the union, laws in other states are just as foreign as laws in other countries. Does that mean that state courts shouldn't look at decisions in other states,

This is manifestly not true. Full faith and credit clause, P&I clause, common law background, etc.


After all, disrespecting certain opinions because they are held by foreigners is not "ad hominem" or anything. It's merely a case of having "positive thoughts and opinions" about the good ole USA.

I second TP's opoint here. It does appear to me that Koh has less positive thoughts and opinions about the USA than a lot of Americans and that is part of the controversy.

I also continue to feel that the key to understanding the Koh "debate" is to recognize that it is not about proving a series of claims about the law, but rather about:

1) Rallying a broad section of the public against the Obama administration by suggesting that Obama is a danger to our very system of government.

Alpers: this controversy regarding the law existed long before Obama. And the ease to which people like Publius shrug off objections makes even a non-conspiracy theorist like myself start to wonder. Not from a conspiracy point of view, but just how strongly some fairly radical ideas have taken hold.

I would posit that the opposition to even considering customary international law (particularly in a case involving international law) would be based, in some part, on the fear that it may be determined that the US is out of step with other civilized nations, and thus, not so civilized, after all.

Not fear of being found wanting in comparison, but a fear of 1) an unelected SCOTUS finding the US position wanting when most Americans are to the contrary.

To some extent, then, you can see this as another prong of the activist judges argument - in that judges are going beyond the four corners of the law being challenged in order to make a determination

This is definitely a huge concern if not the concern in the debate.

Since he said absolutely nothing of the kind, why would you ask such a lunatic question?

Why on earth do you think anyone here is interested in curtailing free speech?

Not a lunatic question at all. It's just pointing out the consequences of looking to international law or foreign law. Sure, it's fine to look for capital punishment (so the argument goes) but what will you say when we look to the laws of, say, Saudi Arabia (or even Europe) to interpret the First Amendment?

"Not having read Blackstone since law school really, is there anywhere that Blackstone says something like "don't hang the chicken thief if the laws of [insert foreign country here or "the majority of foreign jurisdictions"] don't allow it?" I doubt it. "

Not having read much of Koh, is there anywhere that Koh says something like "don't hang the chicken thief if the laws of [insert foreign country here or "the majority of foreign jurisdictions"] don't allow it?" I doubt it.

The fact is, the only thing "binding" on, say, the Supreme Court, when interpreting the Constitution is their own precedent, sort of. The Supreme Court has many times used many theories to overturn precedent. Look at this quotation, for example, from Brown v. Board of Education of Topeka:

"We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

"In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school."

In other words, the Court handed down a decision, extremely unpopular in many quarters, based on its "belief" and citing reliance on "those qualities incapable of objective measurement."

To say that the court is allowed to decide on "belief" but is not allowed to consider the laws of other nations is ridiculous. The fact is, the Supreme Court can consider anything it wants to consider, but with nine justices and a strong legal tradition informing it, there's some check against decisions which completely go against the interests of the country. Of course, perhaps those here arguing against Koh (or what this thread is really about - the broader question of whether the Court should ever cite international law) think that Brown v. Board of Education is the work of activist judges, and we should all have waited for Jim Crow to be ended by popular acclaim. Okay, fine - glad that view isn't held by the people who won the most recent election.

I don't have any articles by Koh around to cite, but this (a description of Koh's views from Yale">http://www.law.yale.edu/news/3289.htm">Yale Law School's site) is what people seem to object to:

"Professor Harold Koh says his talk at the Human Rights Workshop will begin with the question 'How does the U.S. policy of executing people, . . . particularly the mentally retarded, increasingly lead us into a state of isolation internationally?'

"In his experience as assistant secretary of state for democracy, human rights, and labor in the Clinton administration, Koh increasingly came to believe that the continuing existence of the death penalty was causing damage to the standing of the U.S. as a leader in human rights. More than half the countries in the world have abolished the death penalty, and, according to Koh, the U.S. is "completely isolated" in executing the mentally retarded. Koh points out that this is a difficult position to be in while simultaneously trying to mobilize foreign opinion for the battle against terrorism.

"The next question that Koh asks is 'How should international opinion about the death penalty be expressed in our constitutional law?'

"The opportunity to answer this, at least partially, is approaching in the case of Atkins v. Virginia, which the Supreme Court is scheduled to hear in February 2002. Daryl Atkins, who has an IQ of 59, was accused of killing a man to get money for beer.

"Koh argues that international standards as well as domestic ones can be integrated into judgment of such a case through interpretation of the "cruel and unusual" clause in the Eighth Amendment. He explains that what amounts to cruel and unusual punishment is determined by 'evolving standards of decency.' In 1989, the Supreme Court ruled that the Constitution did not forbid execution of the retarded, but indicated that the 'standards of decency' could change enough to make the practice untenable."

It seems to me that in a "globalized" world, where we're trying to take the lead in human rights, it's a relevant question whether the standards of human rights in most countries are greater than our own. Or is this really such a dangerous question?

bc: Sure, it's fine to look for capital punishment (so the argument goes) but what will you say when we look to the laws of, say, Saudi Arabia (or even Europe) to interpret the First Amendment?

Or worse yet *pretends to be a conservative* look to Switzerland to interpret the Second Amendment? *OMGWTF!?!! GUN CONTROL!!!* etc.

If the religious right manage to get enough judges on the Supreme Court that they think Saudi Arabia is an ideal model for free speech in the US, you are in real trouble already, even if you have already banned all judges from reading any legal opinions written outside the US anywhere ever. (Which in itself, suggests a significant problem with these judges' First Amendment rights. Or are they allowed to read, so long as they don't think?)

As a Canadian sitting back a looking at this thread, I have to giggle a bit.

You guys should have never cut loose from old England...

Glad to see the back of 'em, I say. We have problems enough in the UK without adding rebellious colonists...

GOB,

I am thinking more in terms of best practices. Not every practice in the US is better than those abroad, although many are; should we not then try to improve ourselves?

In addition, if there is a precedent in foreign law for a question that has not been previously decided upon in our domestic code, would it not at least be prudent for justices, at any level, to review the decision making process and see if it can (or should) be applied to their review? At least look; if the legal questions are too different, then the foreign legal precedent can be put to the side. But if the decision can reasonably help with the decision-making process, then why not use it? The objection seems to mainly be because it's not from here.

Jesurgislac,

"A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute." This is Alexander Hamilton.

The justices of the Supreme Court and the judges of the lower federal courts are allowed to read, think, and, most important, charged to interpret the meaning of the Constitution and the statutes before them. It seems to me, in order to be true to this responsibility, they need to do their best to discern the intended meaning of the words contained in the Constitution and statutes at issue. It seems to me that this would rarely, if ever, involve reference to or necessitate cites of foreign authority.

I need someone with legal expertise to comment on my next statement.

It seems to me that if our congress passed legislation declaring capital punishment to be 'cruel and unusual' and so forbidden in the United States that there would be a stronger constitutional cases for sustaining this than for the court to make such a declaration based on their knowledge of what is customary among other nations of the world.

Here's the guy who we should really be worried about. (One of them.)

"It seems to me that if our congress passed legislation declaring capital punishment to be 'cruel and unusual' and so forbidden in the United States that there would be a stronger constitutional cases for sustaining this than for the court to make such a declaration based on their knowledge of what is customary among other nations of the world."

Consensus is always good, GOB.

It seems to me that this would rarely, if ever, involve reference to or necessitate cites of foreign authority.

And what makes you think that you have the expertise to regulate what Supreme Court justices should be allowed read and think about? I'm serious: why do you feel you know better than they do what they need to study and consider?

It seems to me that if our congress passed legislation declaring capital punishment to be 'cruel and unusual' and so forbidden in the United States that there would be a stronger constitutional cases for sustaining this than for the court to make such a declaration based on their knowledge of what is customary among other nations of the world.

*shrug* I wouldn't know. We don't take this simultaneously worshipful and restrictive attitude to government or to the judiciary in the UK: that attitude is reserved for the monarch and her immediate family, about whom you will find people declaring that she shouldn't be doing this, or reading that. What's the point of getting rid of a monarch if you set up a teeny tiny one in your own head?

It seems to me, in order to be true to this responsibility, they need to do their best to discern the intended meaning of the words contained in the Constitution and statutes at issue.

I'm not sure this "discern the intended meaning" bit leads to results that you'd like. It might suggest that abolition of the US Air Force and the elimination of American nuclear weapons (since Congress is only constitutionally permitted to raise an Army and Navy and I'm pretty damn sure the Framers never intended their words to authorize giving the federal government the ability to eliminate entire cities full of citizens at will).

It seems to me that this would rarely, if ever, involve reference to or necessitate cites of foreign authority.

It seems to me that when contradictions arise, looking at how foreign judges resolve similar contradictions can be a useful exercise. Practically speaking, the US government is similar in many respects to the governments of peer nations, so it stands to reason that occasionally we will all run into similar legal conundrums at times. I suppose American judges could simply read foreign opinions, glean whatever value can be found and present any insights thereby derived as their own, but that seems rather churlish both to the foreign judges who don't get cited and to other American judges and scholars who can no longer evaluate these ideas in their proper context.

Ecks, nobody is obligated to ignore a slippery slope until they're sliding down it too fast to stop, and the bottom is looming. The use of transnational 'norms' to over-ride American norms is just getting started...

It is, in fact, so just getting started that it isn't demonstrably happening at all. Not every slope is slippery.

Publius, if you seriously don't understand the objection, as opposed to rhetorically, see the many posts on Volokh.

Essentially, in the cases in question, appeals to foreign law don't seem to be like "It seems to me that when contradictions arise, looking at how foreign judges resolve similar contradictions can be a useful exercise" as Turbulence says, which would be more defensible. It is on things like the death penalty, where our legislatures have conciously made different choices and the judges would like to overrule them on 'Constitutional' grounds.

Perhaps I will just give up on any notion that some here revere the Constitution (I'm only referring to americans) more or less than others. Maybe the differences really do derive from views regarding whether traditional American exceptionalism is a characteristic of the US or not. I do subscribe to this idea and I use our demonstrated leadership among nations in many important fields, notable among them human rights, science, technology, a disdain for class distinctions and valuing the individual above the state, to reinforce my belief. I know that those who do not share this belief will be elated if the day comes when we lump ourselves with other nations and cease thinking that there is something special about the United States.

Two prominent political theorists recently discussed the subject of the growing income disparity in recent years between those earning large amounts and those who just managed and how attitudes among the middle class were so radically different between the US and Europe. Surveys showed that envy and resentment in Europe was much more prevalent than in the US even though the income disparities were not as pronounced in Europe as in the US. I discussed this with my English friend and she said the notion of class distinction is still very much in play in Europe and that it is much more difficult to become elite there. All one needs to do in the US is go to an Ivy League school or the equivalent, get a law degree, and join the ranks of the elite if you so choose. I laughed.

"It is on things like the death penalty, where our legislatures have conciously made different choices and the judges would like to overrule them on 'Constitutional' grounds."

You don't address the problem, Sebastian, that determining 'Constitutional' grounds involves a process of defining terms like "cruel and unusual". Obviously there are differences among legal scholars as to how to come to grips with Constitutional standards. Some believe that we should go back and read the minds of the Founders. Others believe that we should apply contemporary standards. But if the legislatures are the arbiters of what "contemporary standards" are, then we wouldn't need a Constitution to prohibit legislation that violates the "cruel and unusual" standard, now would we? Since we've engaged in treaties with other nations, and have many dealings with other nations involving the possibility of meting out "cruel and unusual punishments" in an international setting, it seems to me to be reasonable to look at the foreign countries with which we make treaties bearing on the issue and see what they're thinking with regard to what is cruel. I can't fathom why people are so threatened by the possibility that the Supreme Court might take away the legislature's right to be crueler than Canada. What a travesty!

It seems to me that if our congress passed legislation declaring capital punishment to be 'cruel and unusual' and so forbidden in the United States that there would be a stronger constitutional cases for sustaining this than for the court to make such a declaration based on their knowledge of what is customary among other nations of the world.

I wouldn't think so. In fact, I don't think I like your formula- a simple majority of Congress ought not attempt to 'amend' the right protected by the Constitution by redefinition, as it overreaches their actual power but puts popular pressure on the USSC. I think that putting such pressure on the Court is bad (but certainly not prohibited anywhere). Of course, Congress is free to pass *laws* controlling capital punishment.
Whereas the other possibility isn't the world demanding anything, just the Court deciding what eg 'cruel and unusual' means in today's world.
[Consider the alternative- a liberal Congress passing a law redefining "arms" in the 2nd amendment, or "militia". Id say the court should ignore that, and I think you would agree].

It is on things like the death penalty, where our legislatures have conciously made different choices and the judges would like to overrule them on 'Constitutional' grounds.

This is the same mistake, a different way. Legislatures do not decide on the interpretation of rights, so this is not the Court overruling the legislature (or, if the legislature claims the right to both make law and interpret the Constitution, they are acting beyond their role). This is the Court saying that their actions violate rights granted by the Constitution.

GOB, I happen to be a believer in American exceptionqalism myself, but also knowing that there are some areas where, just maybe, other countries are more exceptional than we are.

Of the examples you listed above, human rights comes the closest to where the US stands above other countries (at least most of them). However, could that have been said definitively say in the 50's? Probably not. My best guess is that you really don't believe there is a class oriented system in the US. While, I would tend to argue that there definitely is, it is just hidden the same way racial discrimination in the North was hidden.

To say we have demonstrably shown our leadership in the other areas I think is incorrect. In each of the areas listed, there have been many advances developed in other countries ahead of ours.

I discussed this with my English friend and she said the notion of class distinction is still very much in play in Europe and that it is much more difficult to become elite there.

It is indeed. Why, three out of the last four Prime Ministers were not considered "elite" - lower middle class or working class backgrounds, all but Tony Blair. The current Prime Minister isn't "elite" either - he's a "son of the manse", upper-middle-class by virtue of having a father in the Church, not by background or income. In the UK, you never get away from your class background, no matter how far you go.

"I discussed this with my English friend and she said the notion of class distinction is still very much in play in Europe and that it is much more difficult to become elite there"

As always, you substitute anecdote and wishful thinking for facts.

The study reviewed data on economic and social measures to assess how well the U.S. has leveraged its vaunted dynamism to improve American living standards. It found that the U.S. is the most unequal of the major OECD countries, with a higher Gini coefficient, lower relative incomes among poor households and a bigger gap between rich and poor. The report notes that:

* The U.S. has a smaller share of low-income workers that make it to higher income levels than any other OECD country. This contradicts the widespread belief that American workers have a much greater chance of getting ahead than do European workers.

Full study here, if you'd like to bother with facts. Plenty of other studies confirm the facts.
[...] Table 11 and Figure 8 present OECD data on short-term income mobility for a subsample of 14 countries. The table gives the share of low-income families (where low-income was defined as earning less than half of the national median income) that managed to escape from low-income status over a three-year period in the mid-1990s.16 Contrary to the view that the United States offers substantial mobility, the United States has the lowest share of low-income workers that exit their low-income status from one year to the next (29.5 percent). The corresponding rates in several European countries are greater than 50 percent: Ireland (54.6), the Netherlands (55.7), the United Kingdom (58.8), and Denmark (60.4).

Table 12 summarizes the results from three separate studies of longer-term intergenerational mobility across countries. In all three cases, the studies investigated the degree of correlation between fathers' and sons' incomes at different points in time. These intergenerational income coefficients quantify the economic advantage conferred by parents to their children: the higher the coefficient, the more likely that children born to poor parents are to remain poor later in life.
Panel (a) summarizes Blanden's (2004) findings for Canada, Germany, the United Kingdom, and the United States. Blanden found the lowest level of correlation between fathers’ and sons’ incomes – therefore, the highest degree of economic mobility-- in Germany (0.12), followed by Canada (0.18) and the United Kingdom (0.27). Intergenerational economic mobility was lowest, by a substantial margin, in the United States (0.45).

Panel (b) presents similar correlation coefficients from a review of international studies by Solon (1992).17 The 0.40 coefficient for the United States is Solon's estimated average based on research in the United States. According to these data, only South Africa (0.44) and, in one of two studies, the United Kingdom (0.57), had lower rates of mobility than the United States (0.40) did. Canada (0.23), Finland (0.13 and 0.22), Germany (0.11 and 0.34), and Sweden (0.13, 0.14, and 0.28) all appear to have substantially greater economic mobility across generations than the United States does.

[...]

Corak's (2004) review (see panel (c)) reaches similar conclusions. The United Kingdom (0.50) and the United States (0.47) have the least economic mobility. France (0.41), Germany (0.32), Sweden (0.27), Canada (0.19), Finland (0.18), Norway (0.17), and Denmark (0.15) all offer greater economic mobility than the United States.

Etc. See also the accompanying charts in the study.

I discussed this with my English friend and she said the notion of class distinction is still very much in play in Europe and that it is much more difficult to become elite there. All one needs to do in the US is go to an Ivy League school or the equivalent, get a law degree, and join the ranks of the elite if you so choose.

According to wikipedia, the source of all knowledge, there are some studies that show that economic mobility in Europe (but not the UK) is greater than the US, and a more recent study shows that they are about the same, so the likelihood is that economic mobility in the US is not in fact greater than in Europe.

Perhaps I will just give up on any notion that some here revere the Constitution (I'm only referring to americans) more or less than others.

No, I think you're correct here. There are indeed some people (like yourself?) that revere the constitution. And there are some, like me, who do not revere it. I would be ashamed to admit that I have an irrational fixation on a founding document and therefore am less able to make good policy decisions and am thus a worse citizen than I could be. But to each his own.

Maybe the differences really do derive from views regarding whether traditional American exceptionalism is a characteristic of the US or not. I do subscribe to this idea and I use our demonstrated leadership among nations in many important fields, notable among them human rights, science, technology, a disdain for class distinctions and valuing the individual above the state, to reinforce my belief.

I'm curious about our human rights leadership. Is that why we have so many prisoners and such a high crime rate? Or do you believe that Americans are inherently more criminal than Europeans and Canadians? Do you think we've demonstrated leadership on any human right besides freedom of speech?

Do you think our "leadership" in science and technology might simply be due to the fact that the US is a very large and very wealthy country? Do you actually know much about any particular scientific or technical field and if so, have you actually surveyed recent literature to see where innovations are happening? I ask because I know many people who are completely ignorant about science and technology and yet have very strong opinions as to how innovative various places are.

As for class distinctions, I believe income mobility is lower in the US than in other countries in Europe for example. To the extent that children of poor families can change their station much more easily in other countries, I'm not sure your claim makes sense.

How do you even assess the extent to which the individual is valued above the state in the US versus other countries? Is there a real metric behind this claim or is this just feel-good boosterism divorced from reality?

I know that those who do not share this belief will be elated if the day comes when we lump ourselves with other nations and cease thinking that there is something special about the United States.

Has it ever occurred to you that in France, right now, there is a guy who is very similar to you who feels the same way about France that you do about the US? Of course, this French guy doesn't get excited about freedom of speech, but he does talk a lot about shared prosperity and other things where the French consider themselves advanced beyond their peers.

Look, lots of people think that their country is obviously awesome or even, the most awesomest country ever. But it helps to understand that those feelings are universal and not always closely tied to the merits.

Maybe the differences really do derive from views regarding whether traditional American exceptionalism is a characteristic of the US or not.

America: exceptional enough to borrow the foundations of our laws from the Europeans, but not exceptional enough to keep treaty obligations from being interpreted differently and causing hell of confusion.

I do subscribe to this idea and I use our demonstrated leadership among nations in many important fields

You know, the Europeans are not so bad at the technology thing. And while you complain about their speech rights, they complain about us executing retarded minors whose court-apponted attourney failed to call a witness and slept through most of the trial. That is, both may have some improving to do. To-may-to, to-mah-to.
As for our leadership in "valuing the individual above the state", you know what country has the edge on us there? Somalia. Individual v state is a spectrum, not a race to the bottom (exception: perhaps you are actually an anarchist).

Surveys showed that envy and resentment in Europe was much more prevalent than in the US.... I laughed.

1)don't rely on one survey for anything
1b)how a survey is conducted (eg exact wording of the questions) is important
1c)demonstrably different populations respond to things differently. Eg Chinese are culturally less likely to complain about things overtly, particularly to strangers (IME)
2)a link would be nice
3)yes, you fear and resent Europeans, we've got that already

Carleton Wu.

Thanks for your clarifying comment. I knew I needed help. I'm glad I asked, reduced my exposure.

btw fwiw, ianal.
ttyl

I'm proud of the U.S. Constitution, and particularly proud of the Bill of Rights. I think the Federalist Papers are documents everyone in the world should read. I think the rights guaranteed in our constitution and Bill of Rights are among the achievements of humankind, and are crucial foundations of our country. I think these constitutional rights need constant protecting and defense in every generation, and vigilance in doing so. I think every child needs comprehensive education in the reasoning behind our constitutional rights and freedoms.

I also think our constitution and bill of rights aren't unique in being the only constitutions around the world to protect human and civil rights, although the particulars do differ to some degree with some countries, while others, of course, suffer greatly by comparison (Burma, say, or Zimbabwe).

I also think the U.S. and its people has many times failed in defending our freedoms and rights, and that sometimes we have not lived up to the promise in our words (slavery, Jim Crow, putting Japanese-Americans in camps, etc.).

I think our ideals are wonderful, that many people's ideals are wonderful, and that we all need to strive to see that as a people and through our governments we live up to those ideals.

I've written some couple of million words on these subjects, and subjects falling under them, over the decades, and don't feel particularly moved to repeat such generalities very often, since such beliefs are perfectly clear from the specifics of my innumerable writings on related topics over the decades, and particularly since I've been writing online since 1995.

I'm an exceptionalist. Not in the get-out-of-jail-free-card sense, but in the we-have-an-exceptional-patrimony-to-live-up-to sense. We often fail. We have no business giving up, though, because doing so robs our future.

Has it ever occurred to you that in France, right now, there is a guy who is very similar to you who feels the same way about France that you do about the US?

"Patriotism is your conviction that this country is superior to all other countries because you were born in it."

--George Bernard Shaw

Koh is controversial and should be.

bc, I appreciate your discussion of actual particulars. If it's convenient for you to do so, I'd be thankful if you could post links to the stuff you read. I googled around and found a lot of writing *about* Koh, but not much *by* him, or even that much that I would call a careful discussion of his writing.

To be honest, many of the things that conservatives appear to be upset about regarding Koh are things that just don't bug me.

I'm perfectly fine with the idea that the courts can overturn laws if they consider those laws to be unconstitutional. It's been that way ever since Marbury, and IMO it's an excellent practice.

I'm perfectly fine if, in considering what "cruel and unusual punishment" might consist of, justices on the SCOTUS or any court with the authority to rule on constitutionality were to consider the practices of other nations. If we are the only nation in the damned world that executes minors or folks who are mentally impaired or insane, then it seems to me that practice is *by definition* at least unusual. If the only other nations besides ourselves that practice those forms of execution are nations whose human rights records resemble those of Attila the Hun, I strongly suspect they may well be cruel.

In some of the stuff I have read, many folks appear to be up in arms about the Law of the Sea treaty. I have no problem with courts considering international custom and practice in that context because *it's not our freaking ocean*. We share it with everybody else.

I will look forward to bc's links if he has a chance to forward them because I'd like to know what particular things are so objectionable. Maybe I just have a much higher comfort level with considering international opinion than y'all, but I'm not seeing where representational democracy is at risk.

Not having read much of Koh, is there anywhere that Koh says something like "don't hang the chicken thief if the laws of [insert foreign country here or "the majority of foreign jurisdictions"] don't allow it?" I doubt it.

Isn't that the capital punishment issue in a sense? I realize we're dealing with the 8th Amendment and not a criminal statute, but Koh is exactly arguing that.

Look at this quotation, for example, from Brown v. Board of Education of Topeka:

Ironic that you denigrate Justice Thomas AND use Brown. IMHO, Brown was correct in terms of finding a violation of the 14th A,but stupidly relied upon findings of "feelings of racial inferiority" as the basis. According to Brown, Plessy was only wrong because they didn't have modern psychological tools! Justice Thomas points out Brown assumes racial inferiority. As he pointed out in Bollinger (dissent), since some studies now seem to indicate racial (and other) heterogeneity actually impairs learning in African Americans, do we overrule Brown? Justice Thomas concludes Brown should have simply said that any racial classification is presumptively invalid under the 14thA and subjected to strict scrutiny. Period. We have a colorblind Constitution. That is all the justification you need.

Instead, yes, the majority relied upon their own personal feelings ignoring the language of the 14thA. Great way to decide cases. So when you say this:

To say that the court is allowed to decide on "belief" but is not allowed to consider the laws of other nations is ridiculous.

that is exactly the problem. Some (I think you) have absolutely no problem with unelected justices using whatever suits their fancy deciding cases tempered only by precedent, even where there is clear language in the Constitution to support the finding. Yes, I have a problem with the judicial activism in the Brown ruling. No, I don't have a problem with the ultimate finding of unconstitutionality.

It seems to me that in a "globalized" world, where we're trying to take the lead in human rights, it's a relevant question whether the standards of human rights in most countries are greater than our own. Or is this really such a dangerous question?

Whether or not it is a dangerous question is irrelevant. It is simply not a constitutional question.

I may find it morally superior to look at other countries' practices. However, just because I think so does not mean I ignore the Constitution.

I frankly fail to see how a government by the people and for the people (meaning the people of this country) under a constitution of enumerated powers must look at practices in other countries in determining just exactly what powers the people gave it. Why should the opinion of the good people of, say, Denmark have any influence in what the 8thA means (I use the Danes only because all I've met seem unusually happy, nice people)?


Or worse yet *pretends to be a conservative* look to Switzerland to interpret the Second Amendment? *OMGWTF!?!! GUN CONTROL!!!* etc.

If the religious right manage to get enough judges on the Supreme Court that they think Saudi Arabia is an ideal model for free speech in the US,

???. Uh, I think Europe in general, and the Dutch in particular, are far more likely to adopt Saudi Arabia's "free speech" model than the U.S., as are liberals more likely than conservatives.

What's the point of getting rid of a monarch if you set up a teeny tiny one in your own head?

but that's kinda the point: What is the point of getting rid of a monarch if you set up 9 in black robes?


"I frankly fail to see how a government by the people and for the people (meaning the people of this country) under a constitution of enumerated powers must look at practices in other countries in determining just exactly what powers the people gave it."

Why should judges look at law review articles?

The answer seems to be the same: to consider what may or may not be good ideas and sound reasoning or not.

What's the problem here?

Carleton Wu,

Thanks for your comments. My belief is that America is exceptional not perfect, and that we are open to learn and grow. Two things that those who are not so keen about our claims of exceptionalism usually bring up are slavery and civil rights. At great costs to all factions we have made exceptional progress and are much closer to the ideals expressed in the founding documents than we were when they were written.

Whatever other areas we might lead in I believe has more to do with incentives for excelling and achieving provided by our political environment than any other factors.

I agree with your first two comments regarding surveys and on the third point, certainly the US is culturally more similar to Europe than to China. But the ethnic demographic is changing in both so one has to be very careful about reaching conclusions too quickly.

I don't have a link. I was watching Ben Wattenberg's PBS program Think Tank and he had a guest whose name I cannot recall.

I not an anarchist. It is the balance the US Constitution tries to strike between the individual and the state that I like.

I don't fear or resent Europeans. They are welcome to the political system they have built. I just don't want to import it.

bc: Uh, I think Europe in general, and the Dutch in particular, are far more likely to adopt Saudi Arabia's "free speech" model than the U.S., as are liberals more likely than conservatives.

You're kidding, right? The religious right in the US and the religious right in Saudi Arabia are far more alike than either of them are like any mainstream political movement I'm aware of in the Netherlands. Neither one is keen on free speech or the free practice of religion when that goes against what the "religious right" believes is the correct practice of religion: you don't find American conservatives enthusing about the First Amendment when that means they're not allowed to stop same-sex couples getting married, or not allowed to post religious texts on courthouse buildings.

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