The work proved enormously enlightening. Not that there was anything in the Swedish system to be borrowed lock, stock, and barrel in the United States. But I came to see our way of doing things in comparative perspective, to understand that what was right for us was not necessarily right for others, but also to appreciate that we had something to learn from foreign systems in endeavors to reform our own modes of procedure. Other informing experiences, I served on the Board of Editors of the American Journal of Comparative Law from 1964 until 1972, and participated in meetings of the International Academy of Comparative Law in Hamburg, Uppsala, and, most memorably, Pescara in Abruzzi.
So, in the 1970s, when, as an advocate, I was urging U.S. courts to recognize the equal citizenship stature of men and women as constitutional principle, it seemed to me useful to cast a comparative sideglance. First case in point, Reed v. Reed. Decided in 1971, Reed was the Supreme Court’s turning-point gender discrimination decision. [For a detailed description of the Reed case, which challenged an Idaho law preferring men to women as administrators of the estates of relatives who died without leaving a will, see “Advocating the Elimination of Gender-Based Discrimination: The 1970s New Look at the Equality Principle,” p. 154.]
I referred in the Reed brief to two foreign decisions. Both were rulings of the then–West German Constitutional Court. One involved a provision of the German Civil Code stating: when the parents disagree about the education of the child, father decides. The West German Constitutional Court held that provision incompatible with the country’s post–World War II constitution, which explicitly recognized the equal citizenship stature of men and women. The second case involved a restraint on succession to large farms. To avoid fragmenting the estate, the law provided that the eldest son would inherit the whole. Never mind that the eldest son had older sisters. That law, too, was held unconstitutional.
I cited the two decisions in the Reed brief, never expecting that the Supreme Court would refer to them in its opinion (it didn’t), but in part for psychological effect. The message I tried to convey: if this is where the West German Constitutional Court is today in its understanding of equality, how far behind can the U.S. Supreme Court be? Our Court did not remain in the rear. It unanimously declared the Idaho male-preference statute unconstitutional.
Flash forward with me now to the hearings held in July 2010 on the nomination of Elena Kagan for a seat on the U.S. Supreme Court. Queries about international and foreign law were several times posed by members of the Senate Committee on the Judiciary. One senator expressed “dismay” that, during Kagan’s tenure as dean of the Harvard Law School, “first year students [were required] to take a course in international law.” Another ventured that “[n]owhere did the founders say anything about using foreign law.” “[P]lease explain,” that senator asked, “why it is OK sometimes to use foreign law to interpret our Constitution or statutes, our treaties.” Yet another asked “whether [judges should] ever look to foreign laws for good ideas” or “get inspiration for their decisions from foreign law.”
Nominee Kagan responded with her typical good humor: “I’m in favor of good ideas,” she said, “wherever you can get them.” “Having an awareness of what other nations are doing might be useful,” she added. As an example, she referred to a brief she filed that year as solicitor general in a case concerning foreign officials’ immunity from suit. Of course, she clarified, on a point of U.S. law, foreign decisions do not rank as precedent, but they could be informative in much the same way as one might gain insight from reading a law review article. “I’m troubled,” said a senator dissatisfied with her answer, that she “believes we can turn to foreign law to get good ideas.”
It is true that, for much of our history, U.S. courts were virtually alone in exercising judicial review for constitutionality. Most nations adhered to the principle of parliamentary supremacy, which left courts with no role to play in measuring ordinary laws and executive acts against the prescriptions contained in a fundamental instrument of government. But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred-up majorities. National, multinational, and international human rights charters and courts today play a prominent part in our twenty-first-century world.
On this development, former Chief Justice Rehnquist wrote in a 1999 foreword to a collection of essays on comparative constitutional law:
For nearly a century and a half, courts in the United States exercising the power of judicial review [for constitutionality] had no precedents to look to save their own, because our courts alone exercised this sort of authority. When many new constitutional courts were created after the Second World War, these courts naturally looked to decisions of the Supreme Court of the United States, among other sources, for developing their own law. But now that constitutional law is solidly grounded in so many countries . . . it [is] time that the United States courts begin looking to the 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 responsibility for interpreting our own laws,” she said, “there is much to learn from . . . distinguished jurists [in other places] who have given thought to the same difficult issues that we face here.” Exactly right, I believe, and the very point Justice Kagan made when she appeared before the Senate Judiciary Committee.
A related point I would stress. Recall that the founding generation showed concern for how adjudication in our courts would affect other countries’ regard for the United States. John Marshall observed in 1816 that the U.S. judiciary would confront cases in which “foreign nations are deeply interested . . . [and] in which the principles of the law and comity of nations often form an essential inquiry.” Today, even more than when the United States was a new nation, judgments rendered in the USA are subject to the scrutiny of “a candid World.” A most recent example: the media in countries on every continent reported on three decisions announced the very last week of the Supreme Court’s 2012–13 Term.
Yes, there have been discordant views on the attention we should pay to the “Opinions of Mankind.” A mid-nineteenth-century Chief Justice wrote:
No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the court 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 1856. They appear in Chief Justice Roger Taney’s opinion for a divided Court in Dred Scott v. Sandford, an opinion that invoked the majestic Due Process Clause to uphold one individual’s right to hold another in bondage.
As shown by my quotations from senators’ remarks at Justice Kagan’s confirmation hearings, U.S. judges and political actors today divide sharply on the propriety of looking beyond our nation’s borders, particularly on matters touching fundamental human rights. Expressing spirited opposition, my dear colleague, Justice Antonin Scalia, for example, counsels: The Court “should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.” In a 2005 published conversation with Justice Breyer, Justice Scalia said it was all right for Justice Breyer to inform himself on international legal developments, but he should keep the information out of his opinions.
A qualification. In March 2012, in a dissenting opinion, Justice Scalia took aim at a decision extending the right to effective assistance of counsel to plea bargaining. Justice Scalia observed: “In many—perhaps most—countries of the world, American-style plea bargaining is forbidden. . . . In Europe, many countries adhere to what they aptly call the ‘legality principle’ by requiring prosecutors to charge all prosecutable offenses. . . . Such a system reflects an admirable belief that the l
aw is the law, and those who break it should pay the penalty provided.” And on the last opinion hand-down day of the 2012–13 Term, Justice Scalia, dissenting in the Defense of Marriage Act case, cited, comparatively, a provision of Germany’s Constitution, Article 93. Scalia observed that the United States Supreme Court cannot “say what the law is” except when necessary to do so to resolve a particular case or controversy. Germany’s Constitutional Court, he observed, is not so confined. It can say what the German Basic Law means in contexts other than a lawsuit.
A trenchant critic of comparative sideglances, Seventh Circuit U.S. Court of Appeals Judge Richard Posner commented some years ago: “To cite foreign law as authority is to flirt with the discredited . . . idea of a universal natural law; or to suppose fantastically that the world’s judges constitute a single, elite community of wisdom and conscience.” Judge Posner’s view rests, in part, on the concern that U.S. judges do not comprehend the social, historical, political, and institutional background from which foreign opinions emerge. Nor do most of us even understand the language in which laws and judgments, outside the common law realm, are written.
Judge Posner is right, of course, to this extent: as Justice Kagan carefully stated in her responses to senators, foreign opinions set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and wisdom foreign sources may convey.
What perplexes me most about the critics of looking beyond our borders is a point Justice Kagan made, in her typically engaging way, when the Senate Judiciary Committee was considering her nomination: Judges in the United States are, without doubt, free to consult all manner of commentary—restatements, treatises, what law professors or even law students write copiously in law reviews, and, in the Internet age, any number of legal blogs. If we can consult those sources, why not the analysis of a question similar to the 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, or the European Court of Human Rights?
Henry Fielding wrote in one of his novels (Joseph Andrews) that examples work more forcibly on the mind than precepts. With that counsel in mind, I will note briefly some fairly recent Supreme Court decisions involving foreign or international legal sources as an aid to the resolution of constitutional questions. In a headline 2002 decision, Atkins v. Virginia, a six-member majority (all save the Chief Justice and Justices Scalia and Thomas) held unconstitutional the execution of a mentally retarded offender. The Court noted that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”
The next year, the Court looked beyond our borders in a case titled Lawrence v. Texas. Overruling a 1986 decision, the judgment in Lawrence declared unconstitutional a Texas statute that prohibited two adult persons of the same sex from engaging, voluntarily, in intimate sexual conduct. On respect for “the Opinions of [Human]kind,” the Lawrence Court 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 leading 1981 European Court of Human Rights decision, Dudgeon v. United Kingdom, and subsequent European Human Rights Court rulings affirming the protected right of gay and lesbian adults to engage in intimate, consensual conduct. (Lawrence v. Texas was featured in the Court’s recent decision holding unconstitutional a key provision of the federal Defense of Marriage Act.)
The current Supreme Court has several times shown “a decent respect for the opinions of humankind” in cases arising out of the war on terror. In June 2008, for example, the Court held, in Boumediene v. Bush, that Congress acted unconstitutionally when it eliminated federal court jurisdiction to hear petitions for habeas corpus filed by aliens detained at Guantanamo Bay.
The Court had established the groundwork for Boumediene in a 2006 decision, Hamdan v. Rumsfeld. There, the Court held that the president, acting without congressional authorization, could not order trial of Guantanamo Bay detainees by military commissions. Even in “our most challenging and uncertain moments” when “our Nation’s commitment to due process is most severely tested,” Justice O’Connor wrote for the four-Justice plurality in Hamdan, “we must preserve our commitment at home to the principles for which we fight abroad.” “History and common sense,” she reminded, “teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse.”
Two University of Chicago Law School professors (Eric A. Posner and Adrian Vermeule) promptly published their disagreement with Justice O’Connor’s statement. People do not prefer liberty to death, they urged. A government that does not contract civil liberties in face of terrorist threats, they said, “is pathologically rigid, not enlightened.” Yet what greater defeat could we suffer than to come to resemble the forces we oppose in their disrespect for human dignity?
I will conclude these illustrations with the Court’s March 2005 decision in Roper v. Simmons. Holding unconstitutional the execution of persons under the age of eighteen who committed capital crimes, the Court acknowledged “the overwhelming weight of international opinion against the juvenile death penalty.” Justice Kennedy wrote for the Court that the opinion of the world community provides “respected and significant confirmation of our own conclusions.” “It does not lessen our fidelity to the [U.S.] Constitution,” he explained, to recognize “the express affirmation of certain fundamental rights by other nations and peoples.” (In a decision rendered last year, the Court held unconstitutional a mandatory sentence of life without the possibility of parole even for juveniles whose crime is murder.)
Recognizing that forecasts are risky, I nonetheless believe the U.S. Supreme Court will continue to accord “a decent Respect to the Opinions of [Human]kind” as a matter of comity and in a spirit of humility. Comity, because projects vital to our well-being—combating international terrorism is a prime example—require trust and cooperation of 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, Aharon Barak. September 11, he noted, confronts the United States with the dilemma of conducting a war on terrorism without sacrificing the nation’s most cherished values, including our respect for human dignity. “We in Israel,” Barak said, “have our September 11, and September 12 and so on.” He spoke of his own Court’s efforts to balance the government’s no doubt compelling need to secure the safety of the state and of its citizens on the one hand, and a proper regard for “human dignity and freedom on the other hand.” He referred, particularly, to a question presented to his Court: “Is it lawful to use violence [less euphemistically, torture] in interrogat[ing] [a] terrorist in a ‘ticking bomb’ situation.” That is, the police think a person they have arrested knows where and when a bomb will explode. His Court’s answer: No, “[n]ever use violence.” He elaborated:
[It] is the fate of a democracy [that] not all means are acceptable to it, . . . not all methods employed by its enemies are open to it. Sometimes, a 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 constitute 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.
In that opinion, I concur without reservation.
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&n
bsp; I. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years, including to students in the Tulane University Law School Summer Program in Paris in July 2013. We have edited the remarks for length and to ensure clarity outside the context in which they were originally delivered.
6
Human Dignity and Equal Justice Under Law
Brown v. Board of Education in International Context
Centre for Human RightsI
University of Pretoria, South Africa
February 7, 2006
Although the Brown decision did not refer to international law or opinion, there is little doubt that the climate of the era explains, in significant part, why apartheid in America began to unravel in the late 1940s, in the aftermath of World War II. The United States and its Allies had fought, successfully, to destroy Hitler’s Holocaust Kingdom and the rank racism that prevailed during the years of Nazi ascendancy in Europe. Yet our own troops, when we entered that war, were racially segregated. In the midst of the war, in 1942, Swedish economist Gunnar Myrdal published The American Dilemma, in which he observed: “America, for its international prestige, power and future security, needs to demonstrate to the world that American Negroes can be satisfactorily integrated into its democracy.”
Illustrative of the growing awareness as the war progressed, a young rabbi, Roland B. Gittelsohn, then a service chaplain, delivered a eulogy over newly dug graves of U.S. Marines on the Pacific island of Iwo Jima. In words preserved at the Harry S. Truman Presidential Library, Rabbi Gittelsohn spoke of the way it was, and the way it should be:
Here lie men who loved America . . . , officers and men, Negroes and whites, rich men and poor, together. . . . Here no man prefers another because of his faith, or despises him because of his color. . . . Among these men there is no discrimination, no prejudice, no hatred. Theirs is the highest and purest democracy. . . . Whoever of us . . . thinks himself superior to those who happen to be in the minority, makes of this ceremony, and of the bloody sacrifice it commemorates, [a] . . . hollow mockery.
My Own Words Page 25
