On Thursday's New York Times Op-Ed page, Felix G. Rohatyn, a former US ambassador to France, repeats a basic fallacy of the argument that foreign law should carry weight in American courts. I don't mean to pick on Rohatyn. I agree completely with his aims, and all he's doing is offering the best argument those frightened by American exceptionalism currently have. But that's the problem: The best argument sucks.
Rohatyn uses a prime example of American exceptionalism, our use of the death penalty, to lament America's failure to take the laws of other countries under consideration when interpreting subjective phrases in our constitutional jurisprudence. The example always used in this debate is the definition of "cruel and unusual punishment," refined in accordance with "evolving standards of moral decency." So, for example, when the Supreme Court banned the execution of juveniles in Roper v. Simmons, the justices(well, some of them anyway) grudgingly acknowledged that the laws of other countries might be relevant insofar as they indicated a consensus (that's adopting the language of one of the lawyers; the text of the oral arguments is here), a consensus that couldn't be used to determine what the standards of decency were, but could be used as additional, after-the-fact confirmation of an existing domestic determination. Got that?
That makes no sense. I would love to find a way for the US to incorporate the opinions of European countries into our constitutional law, because, hey, I'd love to live in a country that looks a little more like Europe (OK, a lot more). But if we're not willing to say that foreign law directly counts toward the determination of decency, there's no reason it should have sway in confirming a domestic assessment of decency. The line, as it's currently drawn, is that we won't let the laws of other countries lead us, but we will let them support us. Why? If it doesn't count for leading us, it's because it's our constitution, the protections of which are limited to our citizens and our borders and our actions. Given that circumscribed scope, the actions, beliefs, and laws of other countries just don't matter. If they don't matter when they think we're wrong, they can't matter to support that we're right (e.g., after a domestic determination). This is why Alito gets to say things like:
I don't think it appropriate or useful to look to foreign law in interpreting the provisions of our constitution. I think the framers would be stunned by the idea that the bill of rights is to be interpreted by taking a poll of countries of the world.
Of course they would be. If we accept the limited scope of the constitution vis-à-vis its protections, and we do, we can't insist that its interpretation goes beyond that scope. The constitution is a text intended for the self-rule of a particular body of people, not the world. When we try to suggest otherwise, the internal contradiction in our argumentIt counts here! It doesn't count there!causes things to fall apart. Advocates for giving foreign law a place in the US court system need to devise a compelling constitutional argument to have any chance of making it happen.
Let's get back to Rohatyn. He wants to argue with Alito. By the time he mentions the man, he's already explained that the French are horrified by America's death penalty and that our stance makes it harder for European countries to think us civil and work with us. Fair enough. But the practical concerns of working together aren't an argument that international opinion should count in constitutional interpretation. And Rohatyn can't argue that it is, so instead, after repeating Alito's remarks, he says,
To the contrary, globalization has made it not only "appropriate or useful" but vital to look at foreign laws. It is in our interest to be aware of their impact whether they concern antitrust, food safety or the death penalty. Contempt for the laws of our allies is a major factor in our increasing isolation in the world; our present posture in Iraq reflects that reality.
Yes. I completely agree. Except …
that's not "to the contrary." That doesn't address the strongest argument against using international opinion at all, it just side-steps the issue with an appeal to practicality.
I won't get into Rohatyn's appeal to the Enlightenment as proof that Europe is right, though I do think it peculiar that it never seems to occur to him that the problem with asserting that American exceptionalism is a reason for America to be ashamed, is that we're pretty goddamned proud of American exceptionalism, and the more other countries wag their fingers at us for it, the prouder and more defensive we become. It's not a way to win Americans over; it's a way to push them further away into a more nationalistic cross-armed stance. I disagree with approximately everything American exceptionalism currently stands for, yet even I can see that the simple phrase doesn't count as a critique right now. Too much of the country thinks that when Europe thinks we're being barbaric, that means we're doing something right.
We have to do better on a mechanism for getting international opinion into constitutional interpretation, if that's what we want. Acting horrified by Alito's statements on the matter isn't productive. His actual wording is utterly uncontroversial. He's far too smart to make it otherwise.
Alexandria Marzano-Lesnevich is a graduate of Harvard Law School. She blogs at theseorangesilences.blogspot.com.