Posted: July 18th, 2012 | By: Gabrielle Baldini
U.S. Supreme Court Justice Ruth Bader Ginsburg is giving a public lecture at the Constitutional Court in Vienna, Austria, today at 11 a.m. (EST).
A partial transcript of the lecture, which is entitled “A Decent Respect to the Opinion of [Human]kind: the Value of a Comparative Perspective in Constitutional Adjudication,” that she gave to Wake Forest University and University of Padua law students, among others, on July 11 at the Palazzo Cavalli in Venice is below. A video of her Venice lecture can be found here. Both lectures are part of the Wake Forest law school’s Study Abroad Programs.
“I am going to start my remarks with a question. The question is, where does my title come from? ‘A Decent Respect to the Opinion of [Human]kind. Is that a familiar phrase to anyone? Well today our counsel general is celebrating the independence of the U.S. The holiday was a week earlier, July 4th, the day the Declaration of Independence was pronounced. In the very first paragraph, the people who declared the independence of the U.S. thought that out of a decent respect to the opinions of mankind (humankind), the U.S., the new nation, was going to declare the causes for separation, and the Declaration was all the reasons why. From the very beginning there was concern about the U.S. becoming a nation in a world of nations. What Thomas Jefferson wanted to do was to expose the reasons for the U.S. becoming a nation to the scrutiny of what he called a “Cannoned World.” Well the following generation recognized that becoming a nation in the world of nations meant that what we do would be watched, and we would become a participant in the formulation, recognition, and enforcement of international law.
Article 6 makes treaties, supreme law of the end, and of the powers given to the Congress, the power to defend and uphold the laws of nations. The law of nations is what we call International Law. The very first Congress in 1789 passed the Alien Taught Act, which empowers Federal Courts to hear cases brought by an alien, taught and committed in the Law of Nations. It doesn’t specify where the wrong was committed, but an alien could sue in our parts for violation of International Law.
John Jay, who was the first Chief Justice in the United States, expressed the common understanding when he wrote that by taking a place among the nations of the Earth, the U.S. had become amendable to the law of nations, and so it has been ever since. The great jurist John Marshall drew an important distinction between the Law of Nations, which binds U.S. courts and all nations…he distinguished that from the Law of Judicial Decisions of Foreign Countries, which do not bind U.S. courts. In an 1815 decision, John Marshall explained that the Law of Nations is part of the law of the U.S. because of our membership in a World of Nations, but the decisions of foreign tribunals to govern their own domestic systems do not control our U.S. courts. But decisions of the courts of other countries merit special attention for their potential persuasive body, what they do with problems. For the most part, in the last two centuries both federal and state courts have understood the difference between international law and common law from which we can learn. We can learn from our jurists abroad how to resolve problems. There was published in 2005 in the William and Mary Law Review an article about 160 pages filled with examples that from the very beginning courts in the U.S. have taken into account common law and decisions from foreign courts.
I will digress with some personal history, how I became interested in international law. I was two years out of law school in 1961, and the Columbia Law School asked if I would take part in their project on international procedure, and if I would co-author the book with a Swedish judge “Civil Procedures in Sweden,” a part of a series in which a U.S. author teamed with a lawyer from a country with a foreign system. Sweden was chosen because in the 1940s it revised its court of judicial procedure, and deliberately attempted to infuse their civil law code the best of the Anglo-American system. The other two countries were France and Italy…the German system had already been studied. I had no ties with Scandinavia so I wondered, why me? There was a commercial payoff in knowing something about the French/Italian cultures, but Sweden had a small payoff for me in that I knew the language would be in English. I suspected that Columbia looked down the list of women graduates, and that’s how I got that assignment. Well the work proved enlightening, not that there was anything in the Swedish system to be borrow lock stock and barrel in the U.S. But I came to see that our way of doing things was not necessarily the only way, and what is right for one system may not be right for another, and we could learn from other systems in looking to improve our own modes of procedure…
In the 1970s, when I was urging the U.S. to recognize as Constitutional principle the Equal Citizenship Right, it seemed useful for me to cast some comparative sidelines. The first case in point, Reed vs. Reed (1971) proved to be the turning point in gender discrimination in the U.S. Supreme Court. It involved a statute that provided as between persons equally entitled to administer an estate, males must be preferred to females…
When I wrote a brief on Sally Reed’s behalf, I looked to two foreign decisions: They were both rulings of men in West Germany’s constitutional court. One stated when parents disagreed about the education of the child, the father decides. The court found that disagreeable with the post WWII constitution, which explicitly recognizes the equal citizenship stature of men and women. The second case involves succession to launch farms. To avoid fragmenting the estate, the law provided that the eldest son inherited the whole, never mind if the eldest son might have had older sisters. That law too was unconstitutional. When I referred to those two decisions, I never expected the U.S. Supreme Court would refer to them in its opinion, and they did not, but I thought it might have persuasive psychological effect…if this is where the West German Constitutional Court is in its understanding of equality, how far behind can the U.S. Supreme Court be? The U.S. Supreme Court did not remain in the rear. It unanimously declared the statute unconstitutional. And throughout the next decades, there were countless state and national laws that were similarly declared unconstitutional and discriminatory against women.
Flash forward to the hearings held in July 2010 on the nomination of my colleague on the U.S. Supreme Court. Questions about international and foreign law were several times posed by the Committee on the Judiciary. One Senator expressed dismay that during (Justice Elena) Kagan’s tenure as Dean of the Harvard Law School, first-year students were required to take a course in international law. Another Senator ventured that nowhere did the founders say anything about using foreign law (that Senator was quite misinformed). Please explain, the Senator asked, why is it okay sometimes to use foreign law to interpret our Constitution? Another asked, why should Judges ever look to foreign laws for ideas or inspiration? Nominee Kagan responded, ‘I am in favor of good ideas wherever you can get them.’ Having awareness of what other nations are doing might be useful. She referenced a brief from last year concerning the immunity of foreign officials from suit. She clarified that of course foreign law does not rank as precedent, but could be informative in much the same way one might gain insight from reading a law article. Some of our legislators need education in that regard, and I hope that Wake Forest, among other law schools, will bear that in mind.
It is true that for much of the U.S., historically, our courts were alone in exercising the power of judicial review of the Constitution, leaving the courts no room to measure ordinary laws/executive acts against the fundamentals of our government. In the years following WWII, many nations, Italy among them, established judicial review as one safeguard against present government, and stirred up majorities. National, multinational, and international human rights causes today are a permanent part in our world. On this development, former Chief Justice Rehnquist, in 1999, wrote, ‘for nearly a century and a half, courts in the U.S. exercising the power of judicial review of Constitutionality, have no precedents to look to save their own because our courts alone exercise that sort of authority.’ When many new constitution reports were created in countries post WWII, they naturally looked to decisions made by the U.S. Supreme Court among other sources. But now the Constitutional law is solidly grounded in so many countries, it is time that the U.S. courts begin looking to decisions of other Constitutional courts to aid in their own deliberative process. Justice O’Connor spoke to the same point a few years later: ‘while ultimately we must bear the responsibility of interpreting our own laws, there is much to learn from other jurists in other places who have given thought to the same difficult issues we face here.’ That is exactly right, I believe.
A related point I would like to stress. We called it the founding generation, showed concern for how adjudication in U.S. courts would be viewed by other countries. John Marhsall in 1816 said that the U.S. judiciary would confront cases in which foreign nations would be deeply interested, and in which the principles would often form a dissention. Today, judgments rendered in the USA are subject to the scrutiny of a candid world. There have been discount views on the attention we should pay. A mid 19th Century justice wrote ‘no one supposes that any change in public opinion/feeling in the civilized nations of Europe or this country should induce the courts to give the words of the Constitution a more liberal construction than they were intended to bear when the instrument was framed and adopted.’ Those words were penned in 1857, they appear in Chief Justice Robert’s opinion, an opinion that invoked the majestic due process clause maintaining an individual’s right to hold another in bondage. It was a decision that hastened our Civil War.
As indicated by my quotations, U.S. judges today divide sharply on the propriety of looking beyond our nation’s borders, particularly on the matters of fundamental human rights. Expressing spirited opposition, a dear colleague Justice Antonin Scalia, counsels that the court should cease putting forward foreigner’s views as part of the reasons basis for our decisions. To invoke alien law when it supports one’s opinion and not otherwise is not reason-based decision-making, but sophistry. In a 2005 published conversation between Scalia and Justice Bryer, Scalia said ‘while it is alright for Justice Bryer to inform himself about international legal developments, he should keep the information out of his opinions.’ In a qualification just this March in a dissenting opinion, Justice Scalia took aim at a majority decision extending the right to effective decision of counsel to plea bargaining. Justice Scalia observed in many, perhaps most, countries of the globe, U.S.-style plea-bargaining is forbidden. In Europe many countries adhere to what they aptly call the ‘legality principle: prosecutors charge all prosecutable offenses.’ Such a system, Justice Scalia says, reflects an admirable belief that the law is the law, and those who break it should pay the penalty provided.
Another trenchant critic of comparison is a well-known court of appeals judge, Richard Posner, who sits on the U.S. Court of Appeals for the second circuit. He commented that to cite foreign law, is to flirt with the discredited idea of a universal natural law, or to suppose fantastically that the world’s judges constitute a single community of wisdom. Judge Posner’s view rests in part on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do most of us even understand the language in which the laws are judgments, outside the common law realm are written. Judge Posner is right of course, to this extent, as Justice Kagan carefully reiterated in her responses to the Senators: ‘foreign opinions are not authoritative, they set no binding precedents, and for the U.S. judge, but they can add to the store of knowledge relevant to the solutions of our questions.’ Yes we should approach foreign legal materials with sensitivity to our differences and our imperfect understanding, but in perfection, I believe, should not be one to abandon the effort, to learn what we can from the experience and wisdom foreign sources may convey. And we should take care about U.S. law, serving as a source of negative authority abroad. The U.S. Attorney General pressed that point in a friend of the court brief he filed on behalf of the U.S. in Brown vs. Board of Education, the challenge to public school segregation that was decided in 1954. The AG urged the court to put an end to the spate but equal doctrine. The AG wrote, ‘the existence of discrimination against minority groups in the U.S. has had an adverse effect upon our relations with other countries. Racial discrimination raises doubts even among friendly nations, as to the intensity of our devotion to the democratic faith.’
What perplexes me most about critics of looking beyond our borders [is], judges of the U.S. are free to consult reams of published material, all manner of law articles published by professors, and even the word of students in our law journals. We often consult restatements, treatises, and nowadays, any number of legal blogs inform us. But if we can consult those sources without any restraint, why not the analysis of a question similar to one we confront, contained for example in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the Supreme Court of Israel, the German Constitutional Court, the European Court of Human Rights?
Henry Fielding wrote in one of his novels that ‘examples are more forcibly on mind than precepts.’ And so with that counsel in mind, I will give you a few examples of some very recent Supreme Court decisions involving foreign and international legal sources as an aid to resolution of legal constitutional questions. In a 2002 decision, Atkins vs. Virginia, a six-member majority all save the Chief Justice, Justice Scalia, and Chief Thomas, found unconstitutional the execution of a mentally-retarded legal offender. The court noted that within the world community, the imposition of the death penalty for crimes committed by a mentally-retarded offender is overwhelmingly disapproved.
And the next year the court looked beyond our borders in a case titled Lawrence vs. Texas. Overruling a 1986 decision, the judgement in Lawrence declared unconstitutional a Texas statute that prohibited two adults of the same sex from engaging in intimate sexual conduct. On respect for the opinions of human kind, the Lawrence case emphasized: the right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. In support, the court cited a leaning 1981 decision of a European court on human rights, in the United Kingdom, and a number of subsequent rulings, affirming the protected right of gay and lesbian adults engaging in consenting intimate conduct.
The current Supreme Court has several times shown a decent respect for the opinions of human kind in cases arising out of the War on Terror. In June 2008, the court held in a case called Boumedian vs. Bush, that Congress had acted unconstitutionally when it eliminated Federal court jurisdiction to hear petitions for habeus corpus, that is, the person who is incarcerated can use the great writ to say, ‘Why am I being held? What reason does the government have to hold me in prison?’ Well Congress said the courts would not have such authority with respect to detainees in Guantanamo Bay. The court held that law unconstitutional; it had already laid the groundwork in an earlier decision, Hamdi vs. Rumsfeld: there the Court held that the President, acting on his own without any Congressional authorization, could not order the trial of Guantanamo Bay detainees by the military. Even in our most challenging and uncertain moments, when our nation’s commitment to due process is most severely tested, Justice O’Connor wrote: ‘we must preserve our commitment at home to the principles which we find abroad. History and common sense teach us that an unchecked system of detention carries the potential to become a means for aggression and abuse.’ Now I must add a P.S.: the court held that the President did not have the authority on his own to authorize military commissions, but the year after, Congress passed a law giving the President that authority. And we have yet to rule on that.
Two University of Chicago law school professors recently published their disagreement with what Justice O’Connor said: ‘People do not prefer liberty to death,’ they wrote. ‘A government that does not contract civil liberties in face of terrorist threats is pathologically rigid, not enlightened.’ Yet what greater defeat could we suffer than to come, because of our concerns with security, more and more to resemble the forces we oppose in their disregard for human dignity?
One further illustration: the Court in March 2005 decided Roper vs. Simmons, in that case they held unconstitutional the execution of persons under the age of 18 who have committed capital crimes. The court in that case acknowledged the overwhelming weight of international opinion against the juvenile death penalty. Justice Kennedy expressed the opinion that the world community provides respected and significant confirmation of our own beliefs. It does not lessen our fidelity to the U.S. Constitution, he explained. To recognize the expressed affirmation of fundamental rights by other nations and other people in a decision rendered just last month, the court extended that ruling and held it unconstitutional to impose a mandatory sentence of life without the possibility of parole for juveniles, even those who commit murder.
While recognizing that predictions are always risky, I nonetheless believe that the U.S. Supreme Court will continue to afford a decent respect to matters of human kind in the spirit of humility, timely because projects vital to our own well-being, combatting terrorism is a prime example, require trust and cooperation among nations the world-over. And humility because, in Justice O’Connor’s words, other legal systems continue to innovate, to experiment, and to find solutions to the new legal problems that arise each day, solutions from which we can learn and benefit. In this regard, I was impressed by an observation made in September 2003 by Israel’s then-Chief Justice: ‘September 11th confronts the U.S. with the dilemma of conducting a War on Terror, without sacrificing the nation’s most cherished values, including our respect for human dignity. We in Israel have had our September 11th, September 12th, and so on.’ He spoke of his own court’s brave efforts to balance the government’s no-doubt compelling need to secure the safety of its state and its citizens, on the one hand, and a proper regard for human dignity and freedom on the other. The question before the court was: is it lawful to use violence, and violence was a euphemism for torture, in interrogating a terrorist in a ticking bomb situation; that is, if the police think the person they have arrested may know where and when a bomb may explode? What means can the police use to extract that information? In an eloquent decision for his court, he answered, ‘No. Never use violence. It is the fate of democracy that not all means are acceptable to it, not all methods employed by its enemies are owed to it. Sometimes democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties, constitutes an important component of a democracy’s understanding of security. At the end of the day, those values buoy up its spirit and strength, and its capacity to overcome the difficulties.’ And that is an opinion in which I concur without reservation.