by publius
Part of the ongoing Koh debate is simply about the proper role that foreign law should play in American constitutional law. And it's worth noting just how absurd this controversy is. I mean, the rhetoric is completely disproportionate to the actual position of the Justices who are being attacked.
To summarize — some Justices want to look at foreign law to help inform their judgment. That's it. They want to look at it — much like they'd look at a Webster's Dictionary or an academic article. But to many legal conservatives, merely looking is somehow equivalent to treating foreign law as binding. The fear, I suppose, is that a mere glance will turn the Constitution into a pillar of salt. (Note that I'm now talking now about the more general foreign law debate as opposed to the more narrow academic debate about customary international law).
Anyway, Justice Ginsburg agrees — and admits not understanding what the big fuss is about:
even from some of my colleagues about referring to foreign law,”
Justice Ginsburg said in her comments on Friday. . . .
Justice Ginsburg said the controversy was based on the
misunderstanding that citing a foreign precedent means the court
considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.
“Why
shouldn’t we look to the wisdom of a judge from abroad with at least as
much ease as we would read a law review article written by a
professor?” she asked.
Precisely. It's the most ridiculous debate in all of constitutional law at the moment. The alleged crime is looking at other decisions for non-binding guidance.
This Don Surber post is pretty representative of the some of the overblown rhetoric surrounding this debate. In critiquing Ginsburg's comments, he writes:
Having foreign laws guide American law is unconstitutional.
Congress makes law.
Period.
Presidents sign it (or not in the case of an over-ridden veto) and courts interpret them.
The justices are wrong in following foreign law — or
even referring to them (with the exceptions being the Magna Carte and
British common law).
A few points here. First, he's wrong — there's no constitutional provision (or decision that I know of) outlawing any sort of "guidance." But second, notice that "British common law" is ok for him. To translate — foreign law is ok when it helps establish originalist interpretations. Otherwise, not so much.
The fever among conservatives on this issue just continues to baffle me. It's an almost pathological aversion to the broader world — and it's hard to understand this as anything other than extreme ideological nationalism.
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.
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 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 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.
Full study here, if you’d like to bother with facts. Plenty of other studies confirm the facts.
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.
“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.”
They typically shouldn’t. See Orin Kerr’s piece on volokh:
On issues like the death penalty, the Justices aren’t appealing to international legal reasoning. They are appealing to a straw poll of the people that get the answer they want (in this case European legislative decisions. (And you should note that specifically do not quote polling on the death penalty, even in Europe. Which makes sense because even in Europe the death penalty doesn’t poll badly.)
As for defining terms by the changing times, I have a problem with that for things that existed at the time of passage. The death penalty isn’t something that was new and unheard of at the time of the passage of the 8th Amendment. You can allow it to change with social mores, but you can’t do that AND pretend that interpreting it that way has anything to do with the counter-majoritarian function of the court. You can argue that “cruel and unusual” has to be interpreted in the context of modern social mores, but once you do that you cannot logically avoid dealing with the fact that a majority of Americans seem to be ok with the death penalty–which is to say that “modern social mores” or however you define it can’t be countermajoritarian. (And you don’t get that even if you count people in Europe as having a vote as opposed to the governments of Europe. )
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?
I did not say they should not. However, they are at least secondary if not tertiary sources after text and legislative history. They are often cited as a means of attribution and judicial shorthand rather than “authority.”
And I think there is a critical difference with how Koh wants to implement international law. It would be like taking a Rasmussen poll of the positions of various law review articles and using that as substance in determining how to apply the Constitution.
Russell:
could post links to the stuff you read.
Sorry, I get access through a proprietary database. I tried to find it on the net as well.
But here is an excerpt from a U.C. Davis law review article re the death penalty:
I beg to differ on the anti-originalist argument. But as you can see, Koh is an activist, as in “let’s get international law into our jurisprudence through the federal courts and trump not only congress but the legislatures of the 50 states” type of activism. At least on this and other issues.
My problem with Publius (and others) is the approach that says “oh, gee, no problem here! there’s no debate!” Yes, there is a debate and of long standing. So quit saying that this is some anti-Obama new-found-and-made-up-for-the-moment argument! The difference in Koh as I see it is his unabashed activist bent.
If you read Koh’s article above you find that he makes all sorts of policy arguments, the arguments one would expect to find in hearings in front of a legislative body. And that’s the problem. He clearly argues that SCOTUS should hold its finger to the wind and use that to decide the 8thA. I find that approach dangerous and intellectually baseless from a constitutional perspective even if I might find it persuasive and appropriate in a legislative context.
And the “finger to the wind” approach is distinguishable from simply looking at other courts. I find that approach (looking to other court opinions) defensible in many situations but not all. However, what other peoples think is not a very good way to decide what THIS people thinks and is perfectly irrelevant to determining what the text of the Constitution means.
Koh’s biggest intellectual argument seems to be the Declaration of Independence and early cases where SCOTUS looked to international law on commercial issues involving international transactions. How you get from those cases to using international peer pressure to decide what the Constitution means is unclear from this reader’s perspective. But then I only have access to 7 articles or so.
Interestingly, Koh has no problem admitting that execution was fine at the time of the founding. He is, of all things, unabashed in his viewpoint that the Constitution is a living document subject to all sorts of judicial tinkering (I would say mischief, but that’s just me).
And what Sebastian said.
bc: He is, of all things, unabashed in his viewpoint that the Constitution is a living document subject to all sorts of judicial tinkering
Everyone thinks like that. At least I hope they do, because if they believe the Constitution is dead and must be interpreted only according to how 18th-century gentlemen would think, they’re …nuts, basically. (You’d need to require a really solid grounding in 18th-century American aristocratic thinking, and of course you couldn’t make any decisions based on the presumption that women have equal rights to men, or that black people aren’t by default slaves, or that working-class people ought to have any influence in government in any way equivalent to the influence of an American aristocrat.)
The argument that the US Constitution is a dead document and must be parsed only in line with the Framers intentions, bears a startling resemblance to the argument that the Bible mustn’t be “interpreted”, but read literally in the original 17th-century English KJV.
…usually by the same people, too.
“Everyone thinks like that. At least I hope they do, because if they believe the Constitution is dead and must be interpreted only according to how 18th-century gentlemen would think, they’re …nuts, basically.”
Lot of nuts out there.
“(You’d need to require a really solid grounding in 18th-century American aristocratic thinking, and of course you couldn’t make any decisions based on the presumption that women have equal rights to men, or that black people aren’t by default slaves, or that working-class people ought to have any influence in government in any way equivalent to the influence of an American aristocrat.)
Apparently this will come as a shocker to you, but originalists typically understand that the Constitution can be “amended”, via Article V, so as to change it’s meaning. And has been on those subjects. What originalists dispute is that the Constitution can have it’s meaning changes without formal amendment.
Handy thing about changing the meaning of the Constitution by changing the words is, after you’ve done it people can read the Constitution and actually see the changes there. The down-side as far as living constitutionalists are concerned is the pesky possibility that the people might reject some of the changes they want.
“Interestingly, Koh has no problem admitting that execution was fine at the time of the founding. He is, of all things, unabashed in his viewpoint that the Constitution is a living document subject to all sorts of judicial tinkering (I would say mischief, but that’s just me).”
Slavery was fine at the time of the founding. Women having no vote, and in most cases being unable to own property, was fine at the time of the founding. Religous prejudice and ethnic prejudice, in whom you gave a job to, or sold property to, or had other dealings with, were fine at the time of the founding.
Lots of things were fine at the time of the founding, which we’ve long since decided were no longer fine. In many cases these things were changed by court decision. Since Marbury v. Madison the courts have struck down laws they’ve found unconstitutional.
It seems quite clear to me, reading the Federalist Papers, and other documents of the time, that the Constitution was intended to be an extremely broad, extremely general, document, with the details left to the legislatures, the courts, and the people, to see fit to interpret and change as time wore on.
Indeed, there was much objection to the Bill of Rights, on the grounds that enumeration of any specific rights would lead to reasoning that rights not made explicit were not guaranteed by the constitution.
So far as I can see, interpreting the document in changing ways over time was the original intent.
Jes:
Uh, have you read the 14th Amendment? For that matter, where in the Constitution do you get that idea regarding working-class people? Go read some of the correspondence between John and Abigail Adams re slavery, the position of women, etc. Interesting interaction between those Bible thumpers.
And what Brett said.
A couple of responses to a couple of people:
Russell, at 4:55: Excellent comment.
bc: “I realize we’re dealing with the 8th Amendment and not a criminal statute, but Koh is exactly arguing that.”
Sapient replies: First of all, do you think we should hang the chicken thief? Do you think if Alabama passed a law allowing the hanging of chicken thieves that the Supreme Court would stand for it? If not, why not?
In bc’s opinion, Brown was decided by activist judges, although they reached the right conclusion. bc would have decided the case on the grounds that the 14th Amendment made the Constitution colorblind. Wait a minute…. Colorblind? Where does the Constitution say colorblind? Where did you get that language, bc? From watching tv? From international law? From a book? Not from the words of the Constitution! How would you have decided Brown? And why? Separate but equal sounds like “equal” to me. But the court looked at the reality and found that it wasn’t.
Where did you get that language, bc?
From Justice Harlan’s great dissent in Plessy, no less, the case that came up with “separate but equal” (although the Lousiana statute actually said “equal but separate.”) If separate but equal sounds like “equal” to you, you just joined the majority of Plessy. Congratulations!
Go read Harlan’s dissent. He says it much better than I. Although he doesn’t say “colorbind” he states that the 13th,14th and 15th amendments “obliterated the race line.” His opinion is not limited to the 14th A, but the 15th and 13th as well and the precedents thereunder eliminating badges of servitude.
BTW, he cites Blackstone. Thought you might get a kick out of that.
As for the chicken thief, the question pertinent to this discussion isn’t whether I think SCOTUS would allow the law. IMHO, it would not be unconstitutional under the text of the 8th A or under the original understanding. As a policy matter, I’d have a hard time supporting hanging for what constitutes petty theft in the states where I am licensed.
This isn’t a uniquely American issue. Legal globalization is everywhere and everywhere controversial.
The trouble is that there is no global democracy, so international law is necessarily undemocratic law. Sometimes (Internet protocols, accounting standards) it’s hard to see any other way of doing things. But it’s troubling nonetheless. Outside the US, it is at least as troubling to the populist left as to the right.
“Slavery was fine at the time of the founding. Women having no vote, and in most cases being unable to own property, was fine at the time of the founding. ”
Gary, in your opinion do amendments have a role in the changing of the Constitution? Are you aware of the anti-slavery amendments? Do you know about 19th amendment giving women the right to vote?
Why has the amendment system been entirely abandoned by liberals seeking change? Did the issues suddenly become more difficult? Did the country suddenly become more divided? We used to have amendments on a fairly regular basis, what happened?
“It seems quite clear to me, reading the Federalist Papers, and other documents of the time, that the Constitution was intended to be an extremely broad, extremely general, document, with the details left to the legislatures, the courts, and the people, to see fit to interpret and change as time wore on.”
You CAN believe that in a very general sense. But if you do, you can’t ALSO believe that the very same clauses which are to change like that make up the countermajoritarian parts of the Constitution. So the 8th amendment CAN be interpreted in light of modern moral standards, but IF you do that you can’t be intellectually honest and be countermajoritarian on the topic.
If you don’t, you cease engaging in law interpretation and are acting out of political whimsy.
You can’t honestly have it both ways.
You can argue that “cruel and unusual” has to be interpreted in the context of modern social mores, but once you do that you cannot logically avoid dealing with the fact that a majority of Americans seem to be ok with the death penalty
I can and will- not avoid it, but dismiss it. You’re conflating popular approval of the death penalty with the idea that popular opinion would hold it to be neither cruel nor unusual. I suspect that subjecting r@pists and child m0lesters to p@inful c@stration with a rusty razor blade would be popular with the American people- precisely because it is cruel. Thus, even if popular, it ought to be barred by the Constitution.
Speaking of p@inful c@stration, I don’t know why but I kept getting “We cannot accept this data” until I substituted a bunch of stuff…
On issues like the death penalty, the Justices aren’t appealing to international legal reasoning.
Well, in this particular instance they’re trying to gauge “cruel and unusual”; I suppose one could argue that they must use only guaranteed US sources in that determination, but I don’t see any basis for that argument in the Constitution itself. If you were to agree that they are justified in looking at modern opinions on cruelty and unusual punishment, then they can look around at the world to get some idea of how the matter is viewed. Just as they iirc went state-by-state when attempting to determine whether executing juveniles (or perhaps mentally handicapped, I cant recall) had become “unusual”.
[The idea that the Founders meant “cruel and unusual *for America*” seems odd, since America didn’t have much history at that point to refer to. At a minimum, they’d be referring to Britain or Western Europe I think.]
In any case, using external sources to determine “unusual” is very different than how the Court might use outside sources when considering eg treaty interpretation, and I don’t think that you can generalize from this example for that reason.
bc would have decided the case on the grounds that the 14th Amendment made the Constitution colorblind.
Interesting that the ‘framers’ of the 14th amendment clearly thought no such their about their amendment- the vast majority of contemporary jurisprudence concerning race did not recognize any such result. bc has argued in the past that those who ratified this amendment apparently did not understand it as well as he does today- but it’s different, you see, because *he* is able to discern the *original* intent that almost all contemporaries were unable to find.
From Justice Harlan’s great dissent in Plessy, no less, the case that came up with “separate but equal” (although the Lousiana statute actually said “equal but separate.”) If separate but equal sounds like “equal” to you, you just joined the majority of Plessy.
Your simplication has lost the *ahem* original intent. If I may:
Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches.
Harlan saw through the facade of the law to its clear, actual intent- to discriminate against blacks and to stigmatize them. He did not say that government must be colorblind, just that attempts to disguise discrimination could not be hidden by the use of ‘separate but equal’.
But note that he finds no discrimination against the white passengers. He does not suggest that any law that mentions race or uses racial categorization is invalid. Just that laws purporting to treat citizens equally while perpetrating a sham and actually acting in a discriminatory manner are invalid.
Go read Harlan’s dissent. He says it much better than I.
And, I might add, he says something completely different to boot.
bc: where in the Constitution do you get that idea regarding working-class people?
The original idea of the government of the United States was that to avoid what the 18th-century thought of as “mob rule” and what we in the 21st century think of as “democratic government”, an elite group of people from each State would cast their votes for the election of the President. Now some tinkering and activism has gone on since then, changing the original concept, but plainly, if you want to regard this as a dead document which must be interpreted according to 18th-century thought, back then they had no notion that the masses ought to be allowed the same voice in government as the aristocracy.
Why is the 18th century your ideal time, bc?
“You can argue that “cruel and unusual” has to be interpreted in the context of modern social mores, but once you do that you cannot logically avoid dealing with the fact that a majority of Americans seem to be ok with the death penalty
I can and will- not avoid it, but dismiss it. You’re conflating popular approval of the death penalty with the idea that popular opinion would hold it to be neither cruel nor unusual. ”
So on what hook do you hang changing social mores? Whose are changing enough to cause a Constitutional shift from allowing something to prohibiting it?
Carleton: Interesting that the ‘framers’ of the 14th amendment clearly thought no such their about their amendment- the vast majority of contemporary jurisprudence concerning race did not recognize any such result.
Just because early courts ruled against the original intent doesn’t change the original intent. It was intended to overrule Dred Scott.
Your simplication has lost the *ahem* original intent. If I may:
I don’t follow. Are you confusing original intent of the law at issue with the 14th A? I’m quite sure the intent of the drafters of the statute in question was discriminatory.
He does not suggest that any law that mentions race or uses racial categorization is invalid.
“In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.”
. . .
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure ‘to a race recently emancipated, a race that through [163 U.S. 537, 556] many generations have been held in slavery, all the civil rights that the superior race enjoy.’ They declared, in legal effect, this court has further said, ‘that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color”
Hmmm.
Jes:
The original idea of the government of the United States was that to avoid what the 18th-century thought of as “mob rule” and what we in the 21st century think of as “democratic government”, an elite group of people from each State would cast their votes for the election of the President. Now some tinkering and activism has gone on since then, changing the original concept, but plainly, if you want to regard this as a dead document which must be interpreted according to 18th-century thought, back then they had no notion that the masses ought to be allowed the same voice in government as the aristocracy.
Why is the 18th century your ideal time, bc?
Why do you say that? I never said that. And why do you believe that “pure” democracy is inherently better than representative government? Do you support the extensive use of initiatives in California? Should we vote here on the budget? (It could have been me instead of Machado holding it up!)
As for the aristocracy angle, some self-supporting system they set up. The only Jefferson we’ve had besides the original is William Jefferson Clinton. A few family relationships here and there, but certainly no aristocracy (but please don’t tell the Clintons; they think they’re special).
All you need to know about aristocracy in America in those years can be learned by studying Washington. Sure, not perfect. Would that he freed the slaves earlier. But he tendered his sword when he was arguably the most popular man in the world and voluntarily stepped down from the presidency. Some aristocrat. Oh, but you say, that’s just because his kids died . . . well, each to his own opinion.
Why do you say that? I never said that.
Because your argument appears to be that Supreme Court judges, at least, should not be allowed to move on from the 18th century, but must try as far as possible to think like 18th-century gentlemen when making legal decisons. (I might also ask why you are so anxious for the US Constitution to be considered a dead document, not a living one.)
And why do you believe that “pure” democracy is inherently better than representative government?
Huh? I think you’re confusing things. Democracy may not be the best system of government, it’s only the best one compared to all the others (as someone or other already said). The system envisaged by the Founders for appointing the President was a step away from representative government – that was the intent. The idea from the 18th century was that “the people” should not get to elect their choice of President, not without an intervening step of aristocrats deciding who the best candidate for the job was. Why you are confusing this with referenda in California, only you know.
All you need to know about aristocracy in America in those years can be learned by studying Washington. Sure, not perfect. Would that he freed the slaves earlier.
…and there were some issues with Indian massacres, weren’t there…
But he tendered his sword when he was arguably the most popular man in [white America] and voluntarily stepped down from the presidency. Some aristocrat.
Yeah. That’s what aristocrats, at their best, do. A person who has been brought up with a genuine belief that their superiority gives them the obligation to serve others, who is capable, intelligent, and thoughtful, will actually make a pretty good ruler. The problem with aristocracy as a system is that there is no guarantee that a person born to power and privilege will actually turn out to be the best person to wield it – see your latest hereditary aristocrats, George H. W. Bush and George W. Bush.
A few family relationships here and there, but certainly no aristocracy (but please don’t tell the [Bushes]; they think they’re special).
Fixed that for you. Odd mistake for you to make, confusing your political aristocracy with a couple of plebs from Arkansas who were loathed for not being “elite” enough, but there you go.
“I might also ask why you are so anxious for the US Constitution to be considered a dead document, not a living one.”
Because it’s not a living Constitution, it’s an undead Constitution, brought to a shambling mockery of life, animated by a force alien to it. It’s not a flexible Constitution, it’s a Constitution broken on the wheel, bent in places it has no joints, to a terrible sound of splintering bone.
Because, Jes, the whole point of writing something down is to fix it’s meaning, and if you can change it without changing the text, you’ve just robbed us of all the practical virtues of a writing down a constitution.
All because they can’t be bothered to make the changes legitimately, perhaps from the fear that if you tried, they’d be rejected. I wonder if, even today, you drafted amendments that made the Constitution actually say what the courts read it to ‘mean’, if you could get them ratified. I doubt it.
It would be an interesting experiment, which would settle a lot of arguments. Perhaps we’ll get a constitutional convention, and try it.
Because, Jes, the whole point of writing something down is to fix it’s meaning, and if you can change it without changing the text, you’ve just robbed us of all the practical virtues of a writing down a constitution.
Ah: the Islamic argument. The text is pure, the text is God-given, the text must not be altered!
I shouldn’t make fun. I do see the Islamic focus on the exact text of the Qu’ran as reasonable enough way to run a religion, while still allowing for modern interpretation – since, regardless, people do read a document for what it means to them in their own time and space, it’s just they either admit to this or they lie about it! – but I think that it’s an unworkable way to run a country, constantly looking back to the virtues of 18th-century thought.
No, not “the text must not be altered”. It’s, “If you want the text to mean something different, you MUST alter it”
You know, because religious texts can’t be amended, all the needed changes have to be done by ‘interpretation’. Laws aren’t so limited, you can change the actual words, so if you want them to mean something different, you do alter them.
I’m not the one advocating that the Constitution be treated like holy writ, you are. I’m advocating that it be treated like LAW.
What do you mean by “democratic government”, Jes? By this, I mean to ask: which of the manifold varieties of democracy do you have in mind when you say “democratic government”?
“If you want the text to mean something different, you MUST alter it”
“Cruel and unusual punishment” means something different in the 21st century from what it did in the 18th century.
The “arms” (and for that matter the “well-regulated militia”) meant something different in the 18th century from what it does in the 21st century.
The belief that in order to change the meaning of a text you need to alter the text itself, kind of ignores the plain fact that the text is not in some little bubble of unchanging notime, a stasis field within which it remains frozen forever – it too is part of time and history, and no matter how hard you try, Brett, you cannot force Americans to read it as if they were living in the 18th century. The Society for Creative Anachronism will take you only so far.
I’m not the one advocating that the Constitution be treated like holy writ, you are. I’m advocating that it be treated like LAW.
Good. Then you’re in agreement with everyone who says that the judges whose job it is to interpret it, get to interpret it like law, and not like holy writ. Which is to say – the exact opposite of what you seem to have been arguing all the way down this thread….
What do you mean by “democratic government”, Jes? By this, I mean to ask: which of the manifold varieties of democracy do you have in mind when you say “democratic government”?
Huh? There’s another form of democracy besides “Government by the people, exercised either directly or through elected representatives”? Oh wait, we’ve had this argument when the Republicans stole the 2000 and the 2004 election, so yeah, if you call what Bush did in Florida “democracy”, there’s that.
I asked: which variety of democracy did you have in mind? Not: which non-democratic form of democracy do you prefer.
Something like “no particular form” is a possible answer, for example. Or “none of your damned business”, even.
bc, thanks for including the excerpt.
My problem with Publius (and others) is the approach that says “oh, gee, no problem here! there’s no debate!” Yes, there is a debate and of long standing.
Fair enough.
He clearly argues that SCOTUS should hold its finger to the wind and use that to decide the 8thA.
I don’t see that in what you’ve excerpted here.
The case he’s discussing is Atkins v Virginia. In that case the SCOTUS considered whether executing a mentally impaired person constituted cruel and unusual punishment.
Note that the “cruel and unusual” standard is not an innovation, but is specifically and literally the language in the original text of the 8th Amendment.
What I see here is Koh arguing that (a) it is proper for the court to consider contemporary standards for what is cruel and unusual in considering this case, rather than confining themselves to what would have been considered cruel and unusual when the Constitution was written, and (b) it is proper for the court to consider what other countries and/or international law calls “cruel and unusual” in this evaluation.
“Cruel” and “unusual” are terms that are difficult to define precisely. Determining whether something is “cruel” or “unusual” in a given circumstance requires judgement. As in, judges.
There are probably some things that can be objectively called “cruel”, but there is a wide range of things that may be cruel in some contexts and not in others, or which may be considered cruel by some folks and not others.
“Unusual” is absolutely impossible to evaluate without considering what other folks do, either now or historically.
Net/net, I think Koh is correct to say that what other countries do, and/or what international law requires (whether we are bound to it by treaty or not) are completely relevant to a consideration of what “cruel” and “unusual” mean at a given place, time, and context.
Further, in our practice of democracy, it is specifically not just the right but the positive obligation of the SCOTUS to make that determination. Not the legislature, not the president, but the courts, and ultimately the SCOTUS.
That’s what they do. Been that way since Marbury.
Koh is also not arguing here that justices should proactively go far and wide to solicit the opinions of other nations in their deliberation. He is arguing that the standards and norms of other nations should be allowed to be presented for consideration during arguments before the court, and calls for Scalia’s dicta to the contrary to be held to be non-binding.
And just for giggles, note that at the time the Constitution was written, drawing and quartering, public guillotining, keelhauling, and burning at the stake were all well-established punishments among peer states of the US. Whipping, branding, stocks, and public hangings were commonplace here. Popular extra-judicial punishments included tarring and feathering.
Times change. Our understanding of what is cruel and unusual really ought to, also.
The one point on which I think we will agree is that I find Koh’s apparent encouragment for judges to consider foreign policy implications in their deliberations to be wrong-headed.
Consider international norms and standards when establishing a context for evaluating what is cruel or unusual? To me, that seems not only reasonable, but correct.
Consider the subsequent implications for US foreign policy? Maybe the Department of State could file an amicus brief and they could take that into account (maybe), other than that I’d say it’s not their job.
Thanks –
I asked: which variety of democracy did you have in mind?
And I answered, admittedly somewhat sarcastically, “Government by the people, exercised either directly or through elected representatives”.
I’m repeating the question because I don’t want it to get lost upthread.
So on what hook do you hang changing social mores? Whose are changing enough to cause a Constitutional shift from allowing something to prohibiting it?
If you want “cruel and unusual” to be a counter-majoritarian concept that is NOT tied to the original text, whose changing social mores are you using to change it? Why do theirs get to win over the majorities?
So on what hook do you hang changing social mores? Whose are changing enough to cause a Constitutional shift from allowing something to prohibiting it?
I thought we were discussing why the SC could look at outside sources to determine whether mores had changed, not whether Constitutional interpretation ought to take into account those changing mores.
I mean, we can have that other discussion (and apparently are), but we *were* talking about the legitimacy of citing of foreign sources.
Just because early courts ruled against the original intent doesn’t change the original intent. It was intended to overrule Dred Scott.
Do you recognize that there is maybe some daylight between the concept that black people aren’t slaves and the concept that government must be completely colorblind?
I don’t follow. Are you confusing original intent of the law at issue with the 14th A?
I quoted Harlan’s dissent and pointed out that he did not say that the government must be colorblind, merely that hidden discriminatory intent could be forbidden by the 14th amendment.
A little joke about your misintrepreting *Harlan’s* intent.
You quote Harlan extensively, but it does not support your point. Harlan argues that the 14th guarantees all races equal rights, but he does not argue that government must be colorblind or that racial categorization by the government is invalid. Using categorization to deny rights is invalid, but that’s not what you’re arguing.
You’re arguing that government must be colorblind. Harlan did not say this.
Hypothetical: After the Civil War, Southern states adopt laws that one can only have a government job if one can show that one’s parents were literate- ostensably to ‘ensure that the candidate has a strong backround in written communication’. Harlan votes to strike the law down as a transparent attempt to bar newly-freed blacks from government jobs.
And from this, you infer some sort of right to illiteracy. Harlan’s point is not against separate but equal- it is against using ‘separate but equal’ to produce or continue unequal treatment. Thus, he goes on at length about protecting rights, but does *not* go on about disallowing actual separate but equal treatment.
*Today*, we recognize that separate but equal is an unacceptable formulation. For example, miscegenation laws were not seen as violations of the 14th amendment (yes, with one exception in a state court that was overturned). But that viewpoint is a novelty, an innovation, a new interpretation that has become the law of the land.
“I thought we were discussing why the SC could look at outside sources to determine whether mores had changed, not whether Constitutional interpretation ought to take into account those changing mores.
I mean, we can have that other discussion (and apparently are), but we *were* talking about the legitimacy of citing of foreign sources.”
They aren’t severable issues. The reason the foreign sources are being cited in the controversial cases in question is not because they have successfully tackled a novel legal issue that US law hasn’t seen before.
They aren’t being cited because they have amazing legal reasoning that is persuasive. (This is especially obvious in cases like Roper v. Simmons where the legal reasoning is barely mentioned.)
They are being cited for “the evolving standards of decency that mark the progress of a maturing society”.
So to restate:
So on what hook do you the evolving standards of decency? Whose are changing enough to cause a Constitutional shift from allowing something to prohibiting it? Because it sure isn’t Americans. And if you poll in Europe, it isn’t particularly Europeans either with the major exception of Germany (France may have just dipped below 50% as of 1999 in some polls).
So whose evolving standards of decency are we talking about, and why should we listen to them?
the whole point of writing something down is to fix it’s meaning
What’s an “unreasonable” search or seizure?
What cause is “probable”?
How fast of a trial is “speedy”?
What makes a jury “impartial”?
What bail or fines are “excessive”?
If you want “cruel and unusual” to be a counter-majoritarian concept that is NOT tied to the original text
The full and entire standard expressed in the text is “cruel and unusual”. There is nothing whatsoever in the text that discusses the context in which that is to be evaluated.
Majoritarian, counter-majoritarian. Taking a poll of people who bowl on Wednesdays. Reading pigeon entrails, throwing dice, employing a Ouija board.
The original text is silent. No further direction is given.
There is no path forward from the text to any meaningful application in the real world that does not require judgements to be made that are NOT TIED to the original text.
Because there’s nothing in the original text that says one way or the other.
So whose evolving standards of decency are we talking about, and why should we listen to them?
Ultimately, the evolving standards of decency of nine people wearing black gowns.
We listen to them because we have given them the job of making the decision.
All because they can’t be bothered to make the changes legitimately, perhaps from the fear that if you tried, they’d be rejected.
By all means, let us continue with the fiction that Conservatives do not engage in selective interpretation. Claiming that the phrase “commander-in-chief” somehow obscures all of the war powers granted to Congress and the Bill of Rights, claiming that signing statements have significance but simultaneously that floor debate must be ignored (ie Scalia in Hamdan- odd that we must use contemporary sources to understand the Founders’ thinking, but contemporary legislative sources that go contrary to conservative desires are “impermissible”- this is a funny one- because that floor language differs from Scalia’s “unambiguous” reading of the text itself).
If anything, conservatives are worse about this than liberals. They just cloak their hypocrisy in the fiction of Originalism.
Originalism can mean:
-‘unambiguous’ interpretation of the actual text, without other references (even if actual references are contrary to this ‘unambiguous’ interpretation)
-interpretation of the original text with contemporary documentation to determine definitions only
-interpretation of original text in context with other original documents or statements to determine intent and meaning
-interpretation of original text in context with other original documents, and in context of other existing laws and practices
-when all else fails, stare decisis (eg Thomas voting against a law in Raich, then turning around and supporting Ashcroft’s rather creative use of that law to bar Oregon’s assisted suicide law, having nakedly checked his principles at the door in order to reach his desired outcome)
-and all this is before the ‘weighing of competing arguments’ that all judges use to reach preferred outcomes. Thus, the unambiguous “commander in chief” trumps everything else.
The idea that the phrase “commander in chief” gives a President carte blanche in wartime is so strongly contradicted – by contemporary writings and the other sections of the Constitution pertaining to war powers – that it is fit only for ridicule.
bc, thanks for inspiring me to reread Justice Harlan’s dissent to Plessy, where he does indeed use the word color-blind. However, the fact that he had an interpretation of the civil war amendments that you seem to agree with doesn’t mean that he rested his opinion any more on the language of the Constitution than the majority did. There’s nothing particular obvious from the meaning of the words of any of the three amendments that says that separate can’t be equal. Separate glasses of liquid can hold equal amounts, for example. The concepts (as words) are different, and can coexist in a number of circumstances.
Harlan used his independent judgment, his knowledge of the facts, and his knowledge of the motivation behind the law in question to support his belief that the Civil War amendments required an integrated common carrier system. But on the words of the amendments alone, and certainly according to most people’s views at that time, the majority’s view in Plessy was just as reasonable as Harlan’s.
And interestingly, in lauding the purpose of the civil war amendments (and as you quoted) Harlan stated that “These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world.” Now, why in the world would he have cared about what people throughout the world may have thought?
“Ultimately, the evolving standards of decency of nine people wearing black gowns.
We listen to them because we have given them the job of making the decision.”
No we really haven’t. The idea of judicial review was based on the idea of legislatures violating the Constitution. That suggests that there ascertainable meaning independent of the judiciary that can be violated. If there is not, there isn’t any compelling reason to vest such a power in nine unelected judges with life tenure.
That is one of the vexing problems with the legal realism school when you try to apply it to judicial review and Constitutional questions. Once you unfix the meaning, and throw it to “the evolving standards of decency of nine people wearing black gowns” as you put it, you have completely undercut the reason to bother with them having the power to overrule legislative acts.
And I’ll note that even the judges aren’t so bold as to make the claim. They pretend that the evolving standards of decency are American or world-wide standards. The only reason you have to retreat to “the evolving standards of decency of nine people wearing black gowns” is because the lie is so transparent on inspection.
“The idea of judicial review was based on the idea of legislatures violating the Constitution. That suggests that there ascertainable meaning independent of the judiciary that can be violated.”
How do you arrive at the conclusion you make in the second sentence from what you say in the first? When a case arises it’s because there’s a dispute as to whether a statute violates the Constitution: usually the state thinks it doesn’t and the aggrieved party thinks it does. They go before a court for judicial review where a judgment is made. I don’t quite understand the reasoning that judges are like slot machines, able to spew out the robotic answer based on the formula demanded by the exact words of the Constitution. If this were the case, courts could be computerized.
The only reason you have to retreat to “the evolving standards of decency of nine people wearing black gowns” is because the lie is so transparent on inspection.
I’m not retreating to anything.
The Constitution isn’t perfectly clear in its meaning at all points. It requires interpretation. The interpretation requires judgement. The folks who are charged, especially since Marbury, with rendering that judgement are the courts, and ultimately the members of the SCOTUS.
Even if you don’t like “evolving standards of decency of nine people wearing black gowns”, I don’t think there is any avoiding “in the best judgement of nine people wearing black gowns”.
There most certainly is an “ascertainable meaning” independent of the judiciary. In fact, there are *numerous* ascertainable meanings independent of the judiciary, and which further cannot be reconciled simply by following the sense of the original text. Because “the sense of the original text” is not always complete or clear.
Multiple ascertainable meanings is actually the problem.
So in the presence of a number of ascertainable meanings, we need to pick one so we can move on.
Nine folks in black robes do the picking.
Sometimes we like what they decide, and sometimes we don’t. Most times some of us do and some of us don’t. But even if *most* of us don’t, their decision stands, at least until some subsequent decision overrules it, or until the meaning of the Constitution is clarified or changed by an Amendment.
That’s how we do here in the good old USA.
If you think that’s an inaccurate understanding of the situation, I invite you to explain how so.
My take on the Atkins case is that, were you to take a poll of residents of the US, you’d find that most would consider executing someone who is mentally impaired to be both cruel and unusual. Had the justices decided against Atkins, we would have sucked it up and lived with it, at least until next time. They didn’t happen to decide that way, but the fact (if true) that the majority of Americans would have disagreed with them had they done so ought not to have determined their decision.
My take on the Koh thing is that conservatives don’t like his opinions. That’s fine, but as far as I can tell, and as far as anyone here has demonstrated to me, that’s all we’re talking about.
“Even if you don’t like “evolving standards of decency of nine people wearing black gowns”, I don’t think there is any avoiding “in the best judgment of nine people wearing black gowns”.”
Which brings us straight back to Roper. The Supreme Court had already *explicitly* ruled on the issue a decade before. In order for them to change the ruling they claimed an evolving standard of decency which transparently had not in fact evolved. They claimed an American ‘consensus’ despite 20 states having laws to the contrary of their ‘consensus’ with 4 more considering them at the time. They supported it by appealing to international legal authority in a way that had nothing to do with newfound persuasive arguments made by international courts. In fact it didn’t even bother with old-found persuasive arguments made by international courts.
If *that* is how it is supposed to work, I don’t see where the underlying authority comes from. It isn’t coming from the Constitution as a written document. It isn’t coming from the Constitution as a compact between the government and the people. It isn’t coming from the people at all. So what is the legitimate basis for that authority?
I understand the underlying authority for judicial review when you have a relatively fixed document. It is that the whole point of a Constitution is explain what the government can and can’t do. If the legislature transgresses those bounds, the judiciary reverse it.
I understand the rationale for interpreting in such a way that technology doesn’t strip protections—i.e. X-Rays are a ‘search’. Hilzoy uses the ‘poison’ analogy. If the Constitution forbids a certain use of poison, new discoveries about what things are poisonous will apply even if the original framers were unaware that arsenic was poisonous. And that is easy for factual issues
But if you are going to use evolving standards of decency, you have to wait for the standards to actually evolve. If you could demonstrate to me that 80% of the US was against the death penalty, feel free to strike it down in Georgia even if they want to keep it. But then you could demonstrate that the standards had actually changed. In reality, more states had the juvenile death penalty at the time of Roper than when the Supreme Court had previously looked at the issue. And the international picture hadn’t changed. So the standard internally was evolving in the opposite direction, while the external standard remained unchanged. So why the different ruling?
You aren’t explicating personal standards of decency. That isn’t what a judge is supposed to do.
And are you open to evolving standards of decency that go the other way? What if our society becomes more brutal? Will things that were cruel and unusual in the 18th century be ok then? Don’t think that is some impossible hypothetical. Empires in decline do all sorts of things.
“We have a colorblind Constitution. That is all the justification you need.”
Not to sidetrack the discussion but if you (and Scalia and Thomas) were a true strict constructionist you would have to disagree with this statement. The 14th amendment does not say anything about being “colorblind” or ignoring race in any way. Additionally, the congress that ratified the 14th amendment certainly didn’t consider it to mandate colorblindness since they proceeded to enforce it in ways which explicitly took race into account when remedying violations.
You aren’t explicating personal standards of decency. That isn’t what a judge is supposed to do.
I agree with this, and I understand why my earlier statement about the “evolving standards of nine people in black robes” might be read otherwise.
I don’t think the SCOTUS should rule based on their personal (non-legal) preferences or opinions on a matter. I do think they should consider the opinion, however manifest, of the people of this country as part of their deliberations.
I *don’t*, however, think that they should make decisions against their considered understanding of what the Constitution and legal precedent argue for, solely because the majority of the population would disagree with them (assuming that that is true).
I also don’t think international law and/or the laws and social norms of other nations need be *excluded* from consideration when you’re trying to get an understanding of what “cruel and unusual” means in a particular context.
In the excerpt that bc provides, Koh is not requiring that justices search the world for insight. He is arguing that Scalia’s dicta *prohibiting* foreign opinion be considered non-binding.
In other words, an attorney should be able to come before the court and argue that, since we are the only nation with a legal system and historical heritage like ours that executes the mentally infirm, and since the only other nations that do so are nations whose human rights records we generally detest, we may wish to consider that it is cruel and unusual punishment.
I don’t see a good reason to *exclude* that argument. Even if the majority of people who live in this country disagree with it.
To your “it cuts both ways” point, yes, I agree, and folks of all political opinions have had to, and continue to, live with decisions they find objectionable.
Carleton:
Harlan’s point is not against separate but equal- it is against using ‘separate but equal’ to produce or continue unequal treatment.
I quoted Harlan’s dissent and pointed out that he did not say that the government must be colorblind,
I thought it said colorblind and did a search but didn’t find it. That was because it was hyphenated:
Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.
Amen.
Sorry, I don’t read Harlan as you do. Maybe that’s because my wife and kids are related.
sapient:
Now, why in the world would he have cared about what people throughout the world may have thought?
After writing the above, I see that you saw the color-blind too. As for this comment, it is important to note that Harlan did NOT say: “my opinion today is supported by the evolving standards of decency demonstrated by friends of liberty throughout the world interpreting the 14thA as I just did.” That is the difference. But point noted (as point noted on Blackstone).
And I think it is different when a question has already been decided and the court turns to popular international opinion to decide whether to change the answer.
But on the words of the amendments alone, and certainly according to most people’s views at that time,
I really can’t respond to this. I know others have looked at the legislative history and find support for Harlan’s position. Do you have any specific provision of the legislative history to point to, or are you simply looking at the judicial opinions (civil rights cases, slaughter house cases, etc.)?
bc, As the 14th Amendment is not a statute, legislative history wouldn’t be relevant, especially since the Amendment was a measure drafted by the winners of the Civil War, imposed on the South and ratified by the Southern states under duress. The Union army wasn’t integrated, was it? Nor was the United States Army following the Civil War. Although certainly there were white abolitionists who had a long tradition of being against racism, I don’t think there was a huge movement by the majority, even in the North, to welcome blacks into white society. Since most of the black population in the country lived in the South, I find it hard to believe that Harlan’s view was in the mainstream, particularly among people who lived in an area where it would have been relevant, and of course the court decisions that you mention (and those cited by the majority in Plessy) indicated that his view wasn’t in the mainstream. I’m not sure what “others” you’re referring to who’ve “looked at the legislative history”, but I’d be interested to read whatever you’re talking about.
Sebatsien–what is your evidence that the American public strongly supports the execution of adolescents? Your debate is premised on popular and legislative support for the death penalty, but of course (with the possible exception of JPS) no member of the current Court believes that the death penalty is always unconstitutional as applied to 1st degree murder. It is far less obvious that a majority of the American public is strongly committed to executing adolescents; it’s certainly strange, given your assertions, that it didn’t happen more often when it was legal.
“The Union army wasn’t integrated, was it?”
It had lots of black units, so it was integrated in a broad sense. It wasn’t integrated on a unit level.
Yes, Gary – thanks for clarifying. I knew that there were black regiments (and black soldiers in every war) but the military wasn’t integrated until Truman.
“it’s certainly strange, given your assertions, that it didn’t happen more often when it was legal.”
Why would you think so? The number of 17-year old 1st degree murderers has never been amazingly high. The percentage of murderers who get the death penalty is very low. That alone would explain most of it. Add further that the number of 17 year olds who apparently just murdered someone for the fun of it–planning it before and bragging about it afterwards, is fairly low and I think we have a good explanation. I would suspect that for the most part juries are willing to give teenagers a bit more room, but that even that only goes so far.
And in any case, there is no evidence whatsoever for an ‘evolving standard of decency’ that took place between 1989 (Stanford case) and 2005. If anything, the evidence points to an evolving standard of decency that ALLOWED for execution of people who murder at age 17–there were more states passing such laws right up to the time of the ruling.
The Supreme Court just made it up. Which since I read your blog, I know you are well aware of.
bc,
I’m sorry, but I have to ask. Is there some explanation for
Sorry, I don’t read Harlan as you do. Maybe that’s because my wife and kids are related.
I haven’t been able to follow the ‘yes it’s colorblind, no it’s not’ discussion, so can you point me to why I shouldn’t take this comment as an incredibly tasteless insult?
I assumed he meant they were related to Harlan, and so he gives Harlan a positive read.
I am not sure what the insult would be…in what context would someone’s wife and kids not being related be an insult? Adoption and stepkids are not generally considered insulting.
lj:
can you point me to why I shouldn’t take this comment as an incredibly tasteless insult?
Uh, oops, no offense intended. It’s just that my wife’s maiden name is Harlan. I was saying that I may tend to over read Harlan and impute wisdom and enlightenment beyond his words simply in my excitement to be somewhat related to the man. Not that my family possesses special interpretive powers because of the gene pool. Is that what you meant? Sorry!
The Koh controversy is a result of the Federalist Society, a refuge of the Reagan revolution that began the descent that culminated in the legal Hell of the Bush administration. A judiciary made up of the Rehnquist, Scalia, Thomas, Roberts, Alito ilk is the nightmare of people who value the protection of human dignity (for people who have emerged from the womb), equal rights under the law, freedom of expression, reproductive rights, and international diplomacy over belligerence. It’s really too bad that these people seem to have a permanent foothold in discussions about American jurisprudence, especially after their candidate, George W. Bush, corrupted the Justice Department, made a mockery of federal regulatory agencies, and used the Constitution as… well, I won’t say it.
Just as Republicans want to use the judicial system to delay (an ethical violation) the entrance of Al Franken into the Senate, and obstructed record numbers of judicial appointments in the Clinton administration (despite their subsequent love affair with Executive prerogative), they now want to set the stage to obstruct the appointment of Obama’s cabinet’s staff.
Some say this is about the torture memos. I wish they’d just release them, then investigate, try and jail these people before they start another war. And I’m worried about a civil war this time, the way they’re going on.
If anything, the evidence points to an evolving standard of decency that ALLOWED for execution of people who murder at age 17–there were more states passing such laws right up to the time of the ruling.
The Supreme Court just made it up.
Made what up? Was there no argument against executing minors before the SCOTUS took the issue up? How does your first statement lead to the second?
Is the Supreme Court obliged to rule based on whatever laws “more states” pass?
What if “more states” pass crappy laws?
Is there no room for the SCOTUS to *lead* in judicial interpretation?
Maybe the states that passed laws allowing the execution of minors were f***ing wrong.
His point is that the USSC had ruled on this exact matter 10 years earlier, allowing minor execution. During the 10 years, more states were in the process of allowing minor executions. Despite this, the Court said that the standards of decency had evolved.
What the Court made up was that in the intervening years, there was a change of attitudes regarding execution of minors among Americans. The evidence of that does not exist.
I happen to agree that the evidence that much or anything had changed in the intervening years is very weak. Much more likely is that the majority simply believed that the prior holding was wrong at the time — and had that decision come out the other way it would not have been obviously “countermajoritarian.” (I would also have to say that of all the many “countermajoritarian” outcome generated by American political system — most of them not by the courts — the possibility that one adolescent or so per decade will be put in prison for life rather than executed is one of the more trivial.)
I agree that the USSC made the mistake on the first case, not the second. But that does not excuse the reasoning of the second. It would have been much better and clearer to say that the Court was wrong the first time, rather than make up stuff.
Thanks, bc, and sorry that I read malice into that. It really surprised me coming from you, so I’m sorry if my comment came off as accusatory.
Oh, sorry jrudkis, didn’t mean to ignore you. As I said, I wasn’t following the conversation closely, and to say that your wife isn’t the mother of your children is, absent any actual knowledge of someone’s situation, seems way harsh. Again, I really didn’t glom on to the fact that there was a Harlan appreciation vibe going on, sorry I missed that.
What the Court made up was that in the intervening years, there was a change of attitudes regarding execution of minors among Americans. The evidence of that does not exist.
Thank you for the clarification. I understand Seb’s comment better now.
Thanks also for everyone’s patience with my lack of knowledge of the case law.
I guess I have a few comments here.
First, with regard to juvenile executions, the US was not merely behind the curve with reference to evolving standards of decency. We were more or less a pariah state. See here for an overview.
So that is the broader context in which the discussion of whether it is permissible to consider customary international law occurs, at least with regard to juvenile execution.
There are at least two questions here. The first is whether the justices must be limited to considering domestic opinion ONLY when ruling on matters of judgement. The other is whether they must respect, and not exceed, domestic opinion when doing so, in other words the question of “counter-majoritarian” rulings.
Second question first. To insist that the SCOTUS never go against majority sentiment in any ruling requiring actual judgement — in other words, any case where the proper ruling was not obvious from the Constitution and case law — means that they can never exercise independent moral judgement at all. Their responsibility is limited, more or less, to being smart and careful readers.
Regarding the first question, I think there are times when ignoring the legal and moral sense of the rest of the world, whether expressed in customary law, treaties, or whatever, amounts to sticking your head in the sand. In the case of juvenile execution, as an example, the justices would not only have to not consider world opinion, they would have to willfully and deliberately ignore it.
Again, this seems to be a demand that they suspend any and all independent moral judgement and act as more or less purely mechanical readers and appliers of fact to text.
I would not welcome a court where the justices were allowed free reign to impose their personal preferences on the rest of us. But I don’t see anyone calling for that. “Consider customary international law” is not the same as “stick your finger in the wind”.
And sometimes the majority is wrong.
lj: Now I see what you meant! lol! No, I wasn’t hurling a “your mother wears combat boots” at whomever I was responding to, just stating that my wife and kids are related to Harlan.
Russell:
I don’t think you understand what happend. In 1989 the Supreme Court of the United States ruled that executing someone who committed first degree murder in their late teens could be executed without violating the 8th amendment.
In 2005 the Supreme Court ruled exactly the opposite, citing “the evolving
standards of decency that mark the progress of a maturing society”.
The evidence for that is astonishingly weak. Four states had abandoned the juvenile death penalty during that time and four states had considered death penalty statutes which didn’t specify age and had chosen to allow the death penalty for 16-18 year olds, with additional states considering it at the time of the ruling. Kennedy repeatedly spoke of a national consensus against the execution of juveniles–which is ridiculous in that context (and is frankly ridiculous full stop. There is no such consensus for any normal definition of the word.)
No national consensus had emerged between 1989 and 2005 on that issue. He made it up.
Scott:
“I happen to agree that the evidence that much or anything had changed in the intervening years is very weak. Much more likely is that the majority simply believed that the prior holding was wrong at the time ”
Argh. That is exactly the opposite of comforting. Essentially you are suggesting not only that the majority on the Court lied about the consensus, but that they lied about their reasoning in general. Which, if true, really doesn’t say anything good about the legitimacy of how judicial review currently functions.
Now as it happens, I agree with you. I think the Court pretty much decided “WE personally believe that this is wrong, so for no actual legal reason whatsoever we will set aside the result of the political process and substitute our personal judgment.” Now of course if you were designing a political system you probably wouldn’t say “Hmmm, lets have legislatures, but we’ll make lifetime appointments of 9 people to be able to just veto it (without a 2/3 overrule possibility)” so they had to engage in handwaving.
But if you are suggesting that you think that is what actually happened, don’t you think that should cause a little bit of consternation about that process? Even if you like the outcome on this case?
I don’t think you understand what happend
Quite so. jrudkis filled me, thanks to you also for doing the same.
I’ve made a further reply a couple of comments up. If you care to comment I’d be interested in your thoughts.
I’m not insisting that the Court NEVER has a counter-majoritarian function. I’m saying that when it uses an evolving moral consensus as a rationale, that is not a counter-majoritarian function. An evolving consensus is, by definition, not counter-majoritarian.
I would however have no problem with the idea that for the most part they are not intended to exercise independent moral judgment. They don’t have some sort of general counter-majoritarian function. A lot of people seem to think that they do, but that isn’t how it is supposed to work. They are empowered to act against the majority only when the will of the majority, as expressed by legislatures, is against the Constitution. That is not a general license to enact the personal moral beliefs of the judges. In fact, it isn’t obvious that it is a license to enact the personal moral beliefs of the judges even when interpreting vague clauses.
So back to the 8th amendment.. the justices have said time and time again that it is to be judged by the contemporary moral standards of our society, not historic ones. I’m not sure if this is obviously correct, but that is what they say. That is not a counter-majoritarian function. It might act in a counter-majoritarian fashion on the state level if there is a clear consensus against a practice and Georgia chose to ignore it. But as it happens, there is no evidence of a consensus against the death penalty for murderers who kill at age 17. There is some evidence that the matter is controversial, but none that there is a consensus on one side of the question or the other.
Despite that, Kennedy repeats again and again that there is.
Well the ‘legal’ and ‘moral’ senses of the rest of the world shouldn’t be treated as just one thing. For example the ‘legal’ sense of Europe appears to be against the death penalty (as expressed by their laws). The ‘moral’ sense of Europoe (as expressed by a majority of its people when asked) is not against the death penalty, not in Europe as a whole, nor in most of the countries considered individually.
And again, this is a kind of cherry picking. The United States is singular in how far it takes ideas about the freedom of speech and of the press. Yet I know almost no one in the United States who would think it a great idea to limit our understanding of freedom of the speech and of the press on that basis. That kind of thing is what makes the appeals to international law look like an exercise of power in the culture wars more than an honorable exercise of judicial interpretation.
The court in the 2005 Roper case did not merely decide the case on changing national trends; it stated that the previous Stanford case was wrongly decided in that the court in Stanford didn’t consider states that had banned the death penalty altogether. Basically it cited a counting error in Stanford.
Most importantly, the Court in Roper found that the two purposes for having a death penalty, retribution and deterrence, were not served when applying it to youth under the age of 18. “Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity,” Kennedy stated, and found that there was no evidence that the death penalty has a deterrent effect on juveniles.
In other words, not only did it say that the Stanford case was decided using erroneous data, but it used Atkins to support the conclusion that it was essential to consider the average capacity of the defendant.
It was only then that the court even mentioned our embarrassing place among other nations in executing minors.
Finally, Stanford was a plurality opinion with a dissenting opinion joined by four justices. Those kind of opinions don’t stand the test of time anyway, so why does anyone object that the court overruled it? Many of the opinions from the last 20 years will be looked at again for that very reason until there is some intellectual consensus on the court.
I don’t agree with your interpretation of what Kennedy actually wrote, nor with the counting argument on its own merits.
First, he repeatedly stressed the evolving consensus. It appears all over the place in his opinion. This suggests that the *change* is very important. Not just that the previous justices had counted wrong.
Second, the culpability and blameworthiness argument is very weak in the juvenile case. The nationwide trend in age culpability for serious is crimes (normally as expressed by choosing to try late teens as adults rather than through the juvenile system) has been to increasingly allow them to be tried as adults at lower and lower ages. If you’re counting an age-culpability trend, Kennedy has the trend exactly wrong. This is true even in non-death penalty states where we can see that imposition of the maximum murder penalty available in those states used for 16, 17 and 18 year olds (and younger in fact). Using the maximum available penalty in any particular jurisdiction argues directly against the idea that there is a national consensus that the culpability of 16, 17 and 18 year olds have significant diminished blameworthiness.
So if counted properly, the state trend is toward the availability of full adult responsibility for 16, 17 and 18 year olds rather than against it.
Third, Kennedy *stated* all sorts of things, but to say that he *found* no evidence that the death penalty has a deterrent effect isn’t true in any scientific sense. The deterrent effect of the death penalty is contested, but recent analysis has suggested that it indeed has a deterrent effect. And hanging your hat on “on juveniles” seems a bit much. That would be a hyper-narrow slice of data to try to get. Given the demonstrated deterrent effect of the death penalty, it most certainly has not been shown that juveniles are specially exempted from that effect. A legislature could certainly Constitutionally act from the point of view that there was absent strong evidence to the contrary.
Of interest might be the ScotusWiki on the upcoming Kennedy v. Louisana case.
We grow into our Constitution. It took 100 years to realize, in Loving, that state laws restricting interracial marriage had been prohibited in 1868. Some enlightened folks saw the scope of the amendment much earlier — Harlan, for example, or, even earlier, the judge who ruled for the petitioner in United States ex rel. Standing Bear v. Crook.
Link got stripped out. It is
http://www.scotuswiki.com/index.php?title=Kennedy_v._Louisiana
Reading the discussion of the oral arguments is quite interesting in light of the discussion here of evolving consensus.
it’s hard to understand this as anything other than extreme ideological nationalism.
There’s always the possibility that the whole thing is a cheap political stunt.
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