Mr. James
Member
Grounds for impeachment? Revolution? Or just finely honed jurisprudential philosophy?
"A decent Respect to the Opinions of [Human]kind":
The Value of a Comparative Perspective in Constitutional Adjudication
Constitutional Court of South Africa
February 7, 2006
Ruth Bader Ginsburg
Associate Justice,
Supreme Court of the United States
South Africa's 1996 Constitution famously provides in Section 39: "When interpreting the Bill of Rights, a court . . . must consider international law; and may consider foreign law." Other modern Constitutions have similar provisions, India's and Spain's, for example. In the United States the question whether and when courts may seek enlightenment from the laws and decisions of other nations has provoked heated debate. I will speak of that controversy in these remarks. At the outset, I should disclose the view I have long held: If U.S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the U. K. - now engaged in measuring ordinary laws and executive actions against charters securing basic rights.
Exposing laws to judicial review for constitutionality was once uncommon outside the United States. In the United Kingdom, not distant from France, Spain, Germany, and other civil law countries in this regard, court review of legislation for compatibility with a fundamental charter was considered off limits, undemocratic, irreconcilable with the doctrine of parliamentary supremacy. That was once true of South Africa, is that not so? But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred-up majorities. National, multinational, and international human rights charters and courts today play a prominent part in our world. 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.
In the value I place on comparative dialogue - on sharing with and learning from others - I draw on counsel from the founders of the United States. The drafters and signers of the Declaration of Independence cared about the opinions of other peoples; they placed before the world the reasons why the States, joining together to become the United States of America, were impelled to separate from Great Britain. The Declarants stated their reasons out of "a decent Respect to the Opinions of Mankind." They set out in the Declaration a long list of grievances, in order to submit the "Facts" - the "long Train of [the British Crown's] Abuses" - to the scrutiny of "a candid World."
The U.S. Supreme Court, early on, expressed a complementary view: The judicial power of the United States, the Court said in 1816, includes cases "in the correct adjudication of which foreign nations are deeply interested . . . [and] in which the principles of the law and comity of nations often form an essential inquiry." "Far from [exhibiting hostility] to foreign countries' views and laws," Professor Vicki Jackson of the Georgetown University law faculty recently reminded us: "[T]he founding generation showed concern for how adjudication in our courts would affect other countries' regard for the United States." A similar concern is evident today in the jurisprudence of the Constitutional Court of the Republic of South Africa. As Justice O'Regan put it, writing separately in Kaunda v. President of the Republic of South Africa: "[O]ur Constitution recognizes and asserts that, after decades of isolation, South Africa is now a member of the community of nations, and a bearer of obligations and responsibilities in terms of international law." [2004 (10) BCLR 1009 (CC) at 222.] Even more so than when the United States was a new nation, the USA today, no less than South Africa, is subject to the scrutiny of "a candid World."
John Jay, one of the authors of The Federalist Papers promoting ratification of the U.S. Constitution, and George Washington's appointee as first Chief Justice of the United States, wrote of the new nation in 1793 much as Justice O'Regan did in 2004 of the new Republic. The United States, Jay observed, "by taking a place among the nations of the earth, bec[a]me amenable to the laws of nations," the core of what we today call international law. Eleven years later, the great Chief Justice John Marshall cautioned: "[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." South Africa installed just such a guide in its 1996 Constitution. Section 233 instructs: "When interpreting . . . legislation, every court must prefer any reasonable interpretation . . . consistent with international law over any alternative interpretation . . . inconsistent with international law."
True, there are generations-old and still persistent discordant views on recourse to the "Opinions of Mankind." A mid-19th century U.S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote:
No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U.S. Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.
Those words were penned in 1857. They appear in Chief Justice Roger Taney's opinion for a divided Court in Dred Scott v. Sandford, an infamous opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage. The Dred Scott decision declared that no "descendants of Africans [imported into the United States], and sold as slaves" could ever become citizens of the United States.
While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution reversed the Dred Scott judgment, U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed spirited opposition. Justice Scalia counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."
Another trenchant critic, Seventh Circuit U.S. Court of Appeals Judge Richard Posner, commented not long ago: "To cite foreign law as authority is to flirt with the discredited . . . idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience." Judge Posner's view rests, in part, on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do we even understand the language in which laws and judgments, outside the common law realm, are written.
Judge Posner is right, of course, to this extent: Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.
Representative of the perspective I share with four of my current colleagues, Patricia M. Wald, once Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and former Judge on the International Criminal Tribunal for the former Yugoslavia, last year said with characteristic wisdom: "It's hard for me to see that the use of foreign decisional law is an up-or-down proposition. I see it rather as a pool of potential and useful information and thought that must be mined with caution and restraint."
Many current members of the U.S. Congress would terminate all debate over whether federal courts should refer to foreign or international legal materials. For the most part, they would respond to the question with a resounding "No." Two identical Resolutions reintroduced last year, one in the House of Representatives and the other in the Senate, declare that "judicial interpretations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such [materials] inform an understanding of the original meaning of the Constitution." As of December 2005, the House Resolution had attracted support from 83 cosponsors. Two 2005-proposed Acts would do more than "resolve." They would positively prohibit federal courts, when interpreting the U.S. Constitution, from referring to "any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the [U.S.] Constitution." [Even reference to a Scottish verdict, i.e., a verdict of not proved, it seems, would be out of order.]
These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe. A personal example. The U.S. Supreme Court's Marshal alerted Justice O'Connor and me to a February 28, 2005, web posting on a "chat" site. It opened:
Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases.
This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.
Nearly a year has passed since that posting. Justice O'Connor, though to my great sorrow retired just last week from the Court's bench, remains alive and well. As for me, you can judge for yourself.
To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed."
In a November 2005 Harvard Law Review comment, Georgetown's Professor Jackson usefully identified three responses to transnational sources: resistance, convergence, and engagement. South Africa's apartheid regime fit the "Resistance Model," an approach that "relishes resistance . . . to outside influence." Professor Jackson suggested that South Africa's 1996 Constitution fits the "Convergence Model," in that it "explicitly incorporate international law as a controlling legal norm." But perhaps the Constitutional Court's emerging jurisprudence comes closer to the third approach, the "Engagement Model." That Model comprehends transnational sources "as interlocutors," a means to test "understanding of one's own traditions and possibilities by examining them in the [reflected light cast by other legal systems]."
The jurisprudence of South Africa's Constitutional Court offers many examples, among them, Justice Kriegler's cautionary note in Sanderson v. Attorney-General, Eastern Cape. The question in that case: Did a two-year delay in bringing a prosecution for alleged sexual offenses violate the defendant's constitutional right to a speedy trial. In determining that the defendant's rights were not violated, Justice Kriegler canvassed foreign precedents, especially U.S. and Canadian decisions; he prefaced his examination, however, by warning that "the use of foreign precedent requires circumspection." [1997 (12) BCLR 1675 (CC) at 26.] In State v. Makwanyane, then Chief Justice Chaskalson earlier cautioned, in presenting his comparative survey decisions on capital punishment: "We can derive assistance from . . . foreign case law, but we are in no way bound to follow it." [1995 (6) BCLR 665 (CC) at 39.] I agree. Some U.S. practices, I fully appreciate, are not suitably exported: the use of juries in civil cases is one example.
In testimony prepared for a congressional hearing, Professor Jackson made a point critics of comparative sideglances perhaps overlook: the "negative authority" foreign experience sometimes may have. She referred in this regard to the "Steel Seizure Case" decided by the U.S. Supreme Court in 1952. There, Justice Jackson, in his separate opinion, pointed to features of the Weimar Constitution in Germany that allowed Adolf Hitler to assume dictatorial powers. He contrasted Germany's situation with that of Great Britain, a country in which legislative authorization was required for the exercise of emergency powers. Justice Jackson drew from that comparison support for the conclusion that, without more specific congressional authorization, the U.S. President could not seize private property (in that case, the steel mills) even in aid of a war effort. The U.S. President's wartime authority, you no doubt know, is today a hotly debated issue in U.S. political and legal circles.
At the time Justice Jackson cast a comparative sideglance at Weimar Germany, the United States itself was a source of "negative authority." The Attorney General pressed that point in an amicus brief for the United States in Brown v. Board of Education. Urging the Court to put an end to the "separate but equal doctrine," the Attorney General wrote:
The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination . . . raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.
The U.S. Constitution, Justice Scalia has remarked, contains no instruction resembling South Africa's Section 39 prescription. So U.S. courts, he thinks, have no warrant from our fundamental instrument of government to consider foreign law. I would demur to that observation. Judges in the United States are free to consult all manner of commentary - Restatements, Treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained 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?
A case in point. On December 16, 2004, in a controversy precipitated by the fight against terrorism, the Lords of Appeal (the U.K. counterpart to the U.S. Supreme Court) issued a waypaving decision, one that looks beyond the United Kingdom's borders. The case was brought by aliens held in custody in Belmarsh Prison. A nine-member panel ruled, 8-to-1, that the British government's indefinite detention of foreigners suspected of terrorism, without charging or trying them, is incompatible with the European Convention on Human Rights, incorporated into domestic law by the U. K. Human Rights Act. Lord Bingham's lead opinion draws not only on domestic decisions and decisions of the European Court of Human Rights. It also refers to opinions of the Supreme Court of Canada and U.S. Court of Appeals opinions (although not U.S. Supreme Court opinions). Finding the differential treatment of nationals and non-nationals impermissible under the Human Rights Act, Lord Bingham also referred to several U. N. instruments, commencing with the 1948 Universal Declaration of Human Rights and including the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.
Lord Bingham did make the observation, gently, that contemporary "U.S. authority does not provide evidence of general international practice." That comment may have figured in the New York Times' characterization of the Lords' ruling as "a strong example of the increasing interdependence of domestic and international law, at least outside of the United States." Parliament reacted swiftly to the Lord's decision. In March 2005, it enacted a measure allowing placement of terrorist suspects under a highly restrictive form of house arrest, in lieu of imprisonment, again without charging or trying them.
One year later, in December 2005, the Law Lords resolved another headline case involving the Belmarsh detainees. A seven-member panel ruled unanimously that evidence obtained through torture was inadmissible in British courts to establish criminal liability or eligibility for deportation "irrespective of where, or by whom, or on whose authority the torture was inflicted." Lord Bingham's lead opinion again surveyed U.N. instruments, including the Convention against Torture, as well as judicial decisions from other nations, including the United States, Germany, and Israel. These sources afforded confirmation for his ringing declaration: "The English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention." Some of the Lords' speeches cast a critical eye across the sea. Lord Hoffman ventured that "many people in the United States, heirs to the common law tradition, have felt their country dishonoured by the use of torture outside the jurisdiction."
Later in December, recognizing the nation's obligations under the Convention against Torture, the U.S. Congress banned cruel, inhuman, and degrading treatment of detainees in U.S. custody. The legislation, however, stops short of explicitly banning evidence elicited by torture from consideration by a military tribunal charged with determining whether a detainee is an enemy combatant.
The notion that it is improper to look beyond the borders of the United States in grappling with hard questions, as my quotation from Chief Justice Taney suggested, is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U.S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.
(continued below . . . )
"A decent Respect to the Opinions of [Human]kind":
The Value of a Comparative Perspective in Constitutional Adjudication
Constitutional Court of South Africa
February 7, 2006
Ruth Bader Ginsburg
Associate Justice,
Supreme Court of the United States
South Africa's 1996 Constitution famously provides in Section 39: "When interpreting the Bill of Rights, a court . . . must consider international law; and may consider foreign law." Other modern Constitutions have similar provisions, India's and Spain's, for example. In the United States the question whether and when courts may seek enlightenment from the laws and decisions of other nations has provoked heated debate. I will speak of that controversy in these remarks. At the outset, I should disclose the view I have long held: If U.S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the U. K. - now engaged in measuring ordinary laws and executive actions against charters securing basic rights.
Exposing laws to judicial review for constitutionality was once uncommon outside the United States. In the United Kingdom, not distant from France, Spain, Germany, and other civil law countries in this regard, court review of legislation for compatibility with a fundamental charter was considered off limits, undemocratic, irreconcilable with the doctrine of parliamentary supremacy. That was once true of South Africa, is that not so? But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred-up majorities. National, multinational, and international human rights charters and courts today play a prominent part in our world. 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.
In the value I place on comparative dialogue - on sharing with and learning from others - I draw on counsel from the founders of the United States. The drafters and signers of the Declaration of Independence cared about the opinions of other peoples; they placed before the world the reasons why the States, joining together to become the United States of America, were impelled to separate from Great Britain. The Declarants stated their reasons out of "a decent Respect to the Opinions of Mankind." They set out in the Declaration a long list of grievances, in order to submit the "Facts" - the "long Train of [the British Crown's] Abuses" - to the scrutiny of "a candid World."
The U.S. Supreme Court, early on, expressed a complementary view: The judicial power of the United States, the Court said in 1816, includes cases "in the correct adjudication of which foreign nations are deeply interested . . . [and] in which the principles of the law and comity of nations often form an essential inquiry." "Far from [exhibiting hostility] to foreign countries' views and laws," Professor Vicki Jackson of the Georgetown University law faculty recently reminded us: "[T]he founding generation showed concern for how adjudication in our courts would affect other countries' regard for the United States." A similar concern is evident today in the jurisprudence of the Constitutional Court of the Republic of South Africa. As Justice O'Regan put it, writing separately in Kaunda v. President of the Republic of South Africa: "[O]ur Constitution recognizes and asserts that, after decades of isolation, South Africa is now a member of the community of nations, and a bearer of obligations and responsibilities in terms of international law." [2004 (10) BCLR 1009 (CC) at 222.] Even more so than when the United States was a new nation, the USA today, no less than South Africa, is subject to the scrutiny of "a candid World."
John Jay, one of the authors of The Federalist Papers promoting ratification of the U.S. Constitution, and George Washington's appointee as first Chief Justice of the United States, wrote of the new nation in 1793 much as Justice O'Regan did in 2004 of the new Republic. The United States, Jay observed, "by taking a place among the nations of the earth, bec[a]me amenable to the laws of nations," the core of what we today call international law. Eleven years later, the great Chief Justice John Marshall cautioned: "[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." South Africa installed just such a guide in its 1996 Constitution. Section 233 instructs: "When interpreting . . . legislation, every court must prefer any reasonable interpretation . . . consistent with international law over any alternative interpretation . . . inconsistent with international law."
True, there are generations-old and still persistent discordant views on recourse to the "Opinions of Mankind." A mid-19th century U.S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote:
No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U.S. Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.
Those words were penned in 1857. They appear in Chief Justice Roger Taney's opinion for a divided Court in Dred Scott v. Sandford, an infamous opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage. The Dred Scott decision declared that no "descendants of Africans [imported into the United States], and sold as slaves" could ever become citizens of the United States.
While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution reversed the Dred Scott judgment, U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed spirited opposition. Justice Scalia counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."
Another trenchant critic, Seventh Circuit U.S. Court of Appeals Judge Richard Posner, commented not long ago: "To cite foreign law as authority is to flirt with the discredited . . . idea of a universal natural law; or to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience." Judge Posner's view rests, in part, on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do we even understand the language in which laws and judgments, outside the common law realm, are written.
Judge Posner is right, of course, to this extent: Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.
Representative of the perspective I share with four of my current colleagues, Patricia M. Wald, once Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and former Judge on the International Criminal Tribunal for the former Yugoslavia, last year said with characteristic wisdom: "It's hard for me to see that the use of foreign decisional law is an up-or-down proposition. I see it rather as a pool of potential and useful information and thought that must be mined with caution and restraint."
Many current members of the U.S. Congress would terminate all debate over whether federal courts should refer to foreign or international legal materials. For the most part, they would respond to the question with a resounding "No." Two identical Resolutions reintroduced last year, one in the House of Representatives and the other in the Senate, declare that "judicial interpretations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such [materials] inform an understanding of the original meaning of the Constitution." As of December 2005, the House Resolution had attracted support from 83 cosponsors. Two 2005-proposed Acts would do more than "resolve." They would positively prohibit federal courts, when interpreting the U.S. Constitution, from referring to "any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the [U.S.] Constitution." [Even reference to a Scottish verdict, i.e., a verdict of not proved, it seems, would be out of order.]
These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe. A personal example. The U.S. Supreme Court's Marshal alerted Justice O'Connor and me to a February 28, 2005, web posting on a "chat" site. It opened:
Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases.
This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.
Nearly a year has passed since that posting. Justice O'Connor, though to my great sorrow retired just last week from the Court's bench, remains alive and well. As for me, you can judge for yourself.
To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed."
In a November 2005 Harvard Law Review comment, Georgetown's Professor Jackson usefully identified three responses to transnational sources: resistance, convergence, and engagement. South Africa's apartheid regime fit the "Resistance Model," an approach that "relishes resistance . . . to outside influence." Professor Jackson suggested that South Africa's 1996 Constitution fits the "Convergence Model," in that it "explicitly incorporate
The jurisprudence of South Africa's Constitutional Court offers many examples, among them, Justice Kriegler's cautionary note in Sanderson v. Attorney-General, Eastern Cape. The question in that case: Did a two-year delay in bringing a prosecution for alleged sexual offenses violate the defendant's constitutional right to a speedy trial. In determining that the defendant's rights were not violated, Justice Kriegler canvassed foreign precedents, especially U.S. and Canadian decisions; he prefaced his examination, however, by warning that "the use of foreign precedent requires circumspection." [1997 (12) BCLR 1675 (CC) at 26.] In State v. Makwanyane, then Chief Justice Chaskalson earlier cautioned, in presenting his comparative survey decisions on capital punishment: "We can derive assistance from . . . foreign case law, but we are in no way bound to follow it." [1995 (6) BCLR 665 (CC) at 39.] I agree. Some U.S. practices, I fully appreciate, are not suitably exported: the use of juries in civil cases is one example.
In testimony prepared for a congressional hearing, Professor Jackson made a point critics of comparative sideglances perhaps overlook: the "negative authority" foreign experience sometimes may have. She referred in this regard to the "Steel Seizure Case" decided by the U.S. Supreme Court in 1952. There, Justice Jackson, in his separate opinion, pointed to features of the Weimar Constitution in Germany that allowed Adolf Hitler to assume dictatorial powers. He contrasted Germany's situation with that of Great Britain, a country in which legislative authorization was required for the exercise of emergency powers. Justice Jackson drew from that comparison support for the conclusion that, without more specific congressional authorization, the U.S. President could not seize private property (in that case, the steel mills) even in aid of a war effort. The U.S. President's wartime authority, you no doubt know, is today a hotly debated issue in U.S. political and legal circles.
At the time Justice Jackson cast a comparative sideglance at Weimar Germany, the United States itself was a source of "negative authority." The Attorney General pressed that point in an amicus brief for the United States in Brown v. Board of Education. Urging the Court to put an end to the "separate but equal doctrine," the Attorney General wrote:
The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination . . . raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.
The U.S. Constitution, Justice Scalia has remarked, contains no instruction resembling South Africa's Section 39 prescription. So U.S. courts, he thinks, have no warrant from our fundamental instrument of government to consider foreign law. I would demur to that observation. Judges in the United States are free to consult all manner of commentary - Restatements, Treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained 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?
A case in point. On December 16, 2004, in a controversy precipitated by the fight against terrorism, the Lords of Appeal (the U.K. counterpart to the U.S. Supreme Court) issued a waypaving decision, one that looks beyond the United Kingdom's borders. The case was brought by aliens held in custody in Belmarsh Prison. A nine-member panel ruled, 8-to-1, that the British government's indefinite detention of foreigners suspected of terrorism, without charging or trying them, is incompatible with the European Convention on Human Rights, incorporated into domestic law by the U. K. Human Rights Act. Lord Bingham's lead opinion draws not only on domestic decisions and decisions of the European Court of Human Rights. It also refers to opinions of the Supreme Court of Canada and U.S. Court of Appeals opinions (although not U.S. Supreme Court opinions). Finding the differential treatment of nationals and non-nationals impermissible under the Human Rights Act, Lord Bingham also referred to several U. N. instruments, commencing with the 1948 Universal Declaration of Human Rights and including the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.
Lord Bingham did make the observation, gently, that contemporary "U.S. authority does not provide evidence of general international practice." That comment may have figured in the New York Times' characterization of the Lords' ruling as "a strong example of the increasing interdependence of domestic and international law, at least outside of the United States." Parliament reacted swiftly to the Lord's decision. In March 2005, it enacted a measure allowing placement of terrorist suspects under a highly restrictive form of house arrest, in lieu of imprisonment, again without charging or trying them.
One year later, in December 2005, the Law Lords resolved another headline case involving the Belmarsh detainees. A seven-member panel ruled unanimously that evidence obtained through torture was inadmissible in British courts to establish criminal liability or eligibility for deportation "irrespective of where, or by whom, or on whose authority the torture was inflicted." Lord Bingham's lead opinion again surveyed U.N. instruments, including the Convention against Torture, as well as judicial decisions from other nations, including the United States, Germany, and Israel. These sources afforded confirmation for his ringing declaration: "The English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention." Some of the Lords' speeches cast a critical eye across the sea. Lord Hoffman ventured that "many people in the United States, heirs to the common law tradition, have felt their country dishonoured by the use of torture outside the jurisdiction."
Later in December, recognizing the nation's obligations under the Convention against Torture, the U.S. Congress banned cruel, inhuman, and degrading treatment of detainees in U.S. custody. The legislation, however, stops short of explicitly banning evidence elicited by torture from consideration by a military tribunal charged with determining whether a detainee is an enemy combatant.
The notion that it is improper to look beyond the borders of the United States in grappling with hard questions, as my quotation from Chief Justice Taney suggested, is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U.S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.
(continued below . . . )