Cambridge Law Journal, 64(3), November 2005, pp. 575–592
Printed in Great Britain
ARTICLES
‘‘A DECENT RESPECT TO THE OPINIONS OF
[HUMAN]KIND’’: THE VALUE OF A
COMPARATIVE PERSPECTIVE IN
CONSTITUTIONAL ADJUDICATION
RUTH BADER GINSBURG*
IN any season, it would be an honour to speak as a Sir David
Williams Lecturer. But no season could be better for me than this
one. For my daughter, Jane Ginsburg, is here at Cambridge,
thriving in her year in the Arthur Goodhart Visiting Chair,
thoroughly enjoying her affiliation with the law faculty and
Emmanuel College, Sir David’s College (and, from 1627 to 1631,
John Harvard’s too).
I did not know it at the time, but Sir David and I attended
Harvard Law School the same school year, 1957–1958. He came
East from graduate studies at the University of California in
Berkeley to complete his Harkness Fellowship at Cambridge cross
the sea. He was in a graduate programme, I was a lowly 2L. Sir
David has done so much good in his various occupations—as
leading scholar and author in the fields of administrative and
constitutional law, guest lecturer around the world, true public
citizen serving on many important commissions and councils, Vice
Chancellor at this great University for seven years. Several of my
colleagues have benefited from their association with him. Charles
Wright, Frank Wozencraft, and Malcolm Wilkey had fellowships at
Wolfson when Sir David was President of that College. Justices
Sandra Day O’Connor and Anthony Kennedy participated with
him in the Anglo-American Legal Exchange. A few more shared
connections: Both Sir David and I are members of the American
Law Institute, also the American Academy of Arts and Sciences,
and honorary members of Lincoln’s Inn.
When Sir David spoke at the American Law Institute’s annual
dinner fifteen years ago, the then-President of the Institute, Rod
* Associate Justice, Supreme Court of the United States. This paper was given as the Sir David
Williams Lecture in Cambridge on 9 May 2005.
575
Perkins, did considerable homework to prepare his introduction.
Rod told us that Sir David grew up in West Wales, in a pre-Roman
town that is not only his birthplace, it is also believed to be the
birthplace of Merlin, renowned magician at King Arthur’s Court.
As an attendee at that 1990 event, I can tell you that, even after a
convivial cocktail hour, and wine of acceptable quality flowing
freely at dinner, Sir David’s talk captivated the audience. I selected
the subject of this evening’s remarks with his parting words at the
ALI gathering in mind. Sir David celebrated our joint Anglo-
American heritage and said he was convinced jurists in Europe, and
especially in the United Kingdom, must take account of the
experience of the United States over the two centuries (and now
more) since our separation from the mother country. I will turn the
table round and speak of the growing appreciation among US
jurists that we must take account of experience, good thinking, and
judicial opinions beyond our borders.
The Old Testament Book of Deuteronomy famously instructs:
‘‘Justice, justice shall you pursue, that you may thrive.’’1 My
remarks centre on one aspect of that pursuit in the system in which
I work: judicial review for constitutionality as it is practised in the
United States. What impact, if any, international and foreign
opinions should have on decision making in US courts has proved
controversial. Recognising the controversy, I will endeavour to
explain my view, which is simply this: If US experience and
decisions can be instructive to systems that have more recently
instituted or invigorated judicial review for constitutionality, so we
can learn from others now engaged in measuring ordinary laws and
executive actions against charters securing basic rights.
Exposing laws to judicial review for constitutionality was once
uncommon outside the United States. In the United Kingdom, not
distant from France, Spain, Germany and other civil law countries
in this regard, court review of legislation for compatibility with a
fundamental charter was considered off limits, irreconcilable with
the doctrine of parliamentary supremacy. But particularly in the
years following World War II, many nations installed constitutional
review by courts as one safeguard against oppressive government
and stirred-up majorities. National, multinational and international
human rights charters and courts today play a prominent part in
our world. The US judicial system will be the poorer, I believe, if
we do not both share our experience with, and learn from, legal
systems with values and a commitment to democracy similar to our
own.
1 Deuteronomy 16:20 (‘‘Zedek, zedek tirdof, l’maan tichyeh’’).
576 The Cambridge Law Journal [2005]
Very much the same opinion was several times expressed by the
Chief Justice of the United States, William H. Rehnquist, who put
it this way in a 1999 foreword to a collection of essays on
comparative constitutional law:
[F]or nearly a century and a half, courts of the United States
exercising the power of judicial review [for constitutionality]
had no precedents to turn to except their own, because our
Court 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 the US
courts began looking to the decisions of other constitutional
courts to aid in their own deliberative process.2
More recently I must acknowledge, Chief Justice Rehnquist
expressed scepticism, if not downright disagreement, on the
relevance of foreign law, both on human rights issues and on
federalism questions—issues implicating the allocation of regulatory
and decision making authority between States and Nation in the
United States. I will later refer to 21st-century dissenting opinions
he joined criticising comparative sideglances by the Court’s
majority. I note here, in contrast to recent misgivings, the view
Justice Felix Frankfurter expressed half a century ago. Even on
questions of federalism, he thought, an ‘‘island’’ or ‘‘lone ranger’’
mentality ought not prevail. Justice Frankfurter wrote:
While the distribution of powers between each national
government and its parts varies, leading at times to different
legal results, the problems faced by the United States Supreme
Court under the Commerce Clause are not different in kind . . .
from those which come before the Supreme Court of Canada
and the High Court of Australia.3
Were he with us today, Justice Frankfurter might have included the
European Court of Justice.
Returning to my own perspective, while US jurisprudence has
evolved over the course of two centuries of constitutional
adjudication, we are not so wise that we have nothing to learn
from other democratic legal systems newer to judicial review for
constitutionality. The point was well made by Judge Guido
Calabresi, a former Dean of Yale Law School and now a judge on
2 William H. Rehnquist, Foreword to Vicki C. Jackson and Mark Tushnet (eds.), Defining the
Field of Comparative Constitutional Law (Westport 2002), at p. vii (The foreword is based on
an edited transcript of introductory comments delivered at the conference ‘‘Comparative
Constitutional Law: Defining the Field,’’ held at Georgetown University Law Center on 17
September 1999).
3 Felix Frankfurter, Of Law and Men (New York 1956), 39.
C.L.J. Constitutional Adjudication 577
the Court of Appeals for the Second Circuit (one of thirteen
appellate courts in the US federal court system). ‘‘Wise parents,’’
Judge Calabresi said in a 1995 concurring opinion, ‘‘do not hesitate
to learn from their children.’’4
In the value I place on comparative dialogue—on sharing with
and learning from others—I am inspired by counsel from the
founders of the United States. The drafters and signers of the
Declaration of Independence cared about the opinions of other
peoples; they placed before the world the reasons why the States,
joining together to become the United States of America, were
impelled to separate from Great Britain. The Declarants stated
their reasons out of ‘‘a decent Respect to the Opinions of
Mankind.’’5 I should add, even in this audience, that the US
Declaration then endeavoured, through a long list of grievances, to
submit the ‘‘Facts’’—the ‘‘long Train of [the British Crown’s]
Abuses’’—to the scrutiny of ‘‘a candid World.’’6
The US Supreme Court, early on, expressed a complementary
view: the judicial power of the United States, the Court said in
1816, was intended to include cases ‘‘in the correct adjudication of
which foreign nations are deeply interested . . . [and] in which the
principles of the law and comity of nations often form an essential
inquiry.’’7 ‘‘Far from [exhibiting hostility] to foreign countries’ views
and laws,’’ Professor Vicki Jackson of the Georgetown University
law faculty wrote last year, ‘‘the founding generation showed
concern for how adjudication in our courts would affect other
countries’ regard for the United States.’’8 Even more so today, the
United States is subject to the scrutiny of ‘‘a candid World.’’ What
the United States does, for good or for ill, continues to be watched
by the international community, in particular, by organisations
concerned with the advancement of the ‘‘rule of law’’ and respect
for human dignity.
The new turn-of-the-nineteenth-century United States looked
outward not only to earn the respect of other nations. In writing
the Constitution, the Framers were inspired by jurists and
philosophers from other lands, and they understood that the new
nation would be bound by ‘‘the Law of Nations,’’ today called
4 United States v. Then 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi J., concurring) (citing
approach taken by German and Italian constitutional courts to interpretation of vague
statutory language in light of changed circumstances).
5 The Declaration of Independence, para. 1 (US 1776).
6 Ibid., at para. 2.
7 Martin v. Hunter’s Lessee 14 US (1 Wheat.) 304, 335 (1816).
8 Vicki Jackson, ‘‘Yes Please, I’d Love to Talk with You’’, Legal Affairs, July/Aug. 2004, at
p. 44. See also Appropriate Role of Foreign Judgments in the Interpretation of American Law:
Hearing on H.R. Res. 568 Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 108th Cong., 2d Sess. 16 (2004) (statement of Professor Vicki C. Jackson)
[hereinafter Jackson Statement].
578 The Cambridge Law Journal [2005]
international law. Among powers granted the US Congress, the
Framers enumerated in Article I the power ‘‘[t]o define and punish
. . . Offences against the Law of Nations.’’9
John Jay, one of the authors of The Federalist Papers promoting
ratification of the US Constitution, and George Washington’s
appointee as first Chief Justice of the United States, wrote in 1793
that the United States, ‘‘by taking a place among the nations of the
earth, [had] become amenable to the laws of nations.’’10 Eleven
years later, the great Chief Justice John Marshall (who no doubt
had read Blackstone on this matter) cautioned that ‘‘an act of
Congress ought never to be construed to violate the law of nations
if any other possible construction remains.’’11 And in 1900, the
Court famously reaffirmed in The Paquete Habana that
[i]nternational law is part of our law, and must be ascertained
and administered by the courts of justice . . . . [W]here there is
no treaty, and no controlling executive or legislative act or
judicial decision, resort must be had to the customs and usages
of civilized nations.12
There are generations-old and still persistent discordant views, I
acknowledge, on recourse to the ‘‘Opinions of Mankind.’’ A mid-
19th century US Chief Justice expressed opposition to such
recourse in an extreme statement. He wrote:
No one, we presume, supposes that any change in public
opinion or feeling . . . in the civilized nations of Europe or in
this country, should induce the [US Supreme Court] to give to
the words of the Constitution a more liberal construction . . .
than they were intended to bear when the instrument was
framed and adopted.13
Those words were penned in 1857. They appear in Chief Justice
Roger Taney’s opinion for a divided Court in Dred Scott v.
Sandford, an opinion that invoked the majestic Due Process Clause
to uphold one human’s right to hold another in bondage. The Dred
Scott decision declared that no ‘‘descendan[t] of Africans [imported
into the United States], and sold as [a] slav[e]’’ could ever become a
citizen of the United States.14
While the Civil War and the Thirteenth, Fourteenth, and
Fifteenth Amendments reversed that judgment, US jurists and
political actors today are hardly of one mind on the propriety of
looking beyond our nation’s borders, particularly on matters
9 US Constitution, art. I, x8, cl. 10.
10 Chisholm v. Georgia 2 US (2 Dall.) 419, 474 (1793).
11 Murray v. Schooner Charming Betsy 6 US (2 Cranch) 64, 118 (1804).
12 The Paquete Habana 175 US 677, 700 (1900).
13 Dred Scott v. Sandford 60 US (19 How.) 393, 426 (1857).
14 Ibid., at p. 403.
C.L.J. Constitutional Adjudication 579
touching fundamental human rights. Some have expressed spirited
opposition. Justice Scalia wrote this year, in a dissenting opinion
joined by Chief Justice Rehnquist and Justice Thomas: 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
decision making, but sophistry.’’15
Another trenchant critic, Seventh Circuit Judge Richard Posner,
commented last year: ‘‘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.’’16 Judge Posner’s view rests,
in part, on the concern that US judges do not comprehend the
social, historical, political, and institutional background from which
foreign opinions emerge. Nor do we even understand the language
in which laws and judgments, outside the common law realm, are
written.
Judge Posner is right, of course, to this extent: foreign opinions
are not authoritative; they set no binding precedent for the US
judge. But they can add to the store of knowledge relevant to the
solution of trying questions. As to our ignorance of foreign legal
systems, just as lawyers can learn from each other in multinational
transactions and bar associations, judges, too, can profit from
exchanges and associations with jurists elsewhere. Yes, we should
approach foreign legal materials with sensitivity to our differences,
deficiencies, and imperfect understanding, but imperfection, I
believe, should not lead us to abandon the effort to learn what we
can from the experience and good thinking foreign sources may
convey.17
Somewhat more accommodating, Ninth Circuit US Court of
Appeals Judge Diarmuid O’Scannlain stated in remarks made last
fall at the Institute of Advanced Legal Studies in London:
‘‘[L]imited references to foreign legal authorities may play a
beneficial role in contemporary American jurisprudence.’’ But, he
continued, ‘‘courts in the United States should restrict the use of
foreign legal authorities to certain well-defined categories of cases’’:
when treaties or international conventions are relevant, first and
foremost, and also when ‘‘Congress has expressed a desire to bring
15 Roper v. Simmons 125 S.Ct. 1183, 1228 (2005) (Scalia, J., dissenting) (emphasis in original
removed).
16 Richard Posner, ‘‘No Thanks, We Already Have Our Own Laws’’, Legal Affairs, July/Aug.
2004, at p. 42.
17 Judge Posner acknowledged that decisions elsewhere might have informational value; they
might be useful, he thought, if they contain persuasive reasoning.
580 The Cambridge Law Journal [2005]
the United States into alignment with the international
community.’’18
Judge O’Scannlain gave as examples of proper regard for
foreign decisions and laws two opinions I wrote for the Court. The
first, El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, relied on a
House of Lords’ decision interpreting the Warsaw Convention’s
limitations on airline liability for injury to a passenger;19 the
second, Eldred v. Ashcroft, upheld against constitutional challenge a
statute conforming the US copyright term to the European Union’s
‘‘life plus seventy years.’’20 But overall, Judge O’Scannlain’s
presentation placed him in accord with Fourth Circuit Judge J.
Harvie Wilkinson, III, who cautioned against looking abroad when
resolving ‘‘contentious social issues.’’21
More representative of the perspective I share with five of my
current colleagues, Patricia M. Wald, former Chief Judge of the US
Court of Appeals for the D.C. Circuit, last year said with
characteristic wisdom: ‘‘It’s hard for me to see that the use of
foreign decisional law is an up-or-down proposition. I see it rather
as a pool of potential and useful information and thought that
must be mined with caution and restraint.’’22
Many current members of the US Congress would terminate all
debate over whether federal courts should refer to foreign or
international legal materials. For the most part, they would respond
to the question with a resounding ‘‘No.’’ Two identical Resolutions
introduced this year, one in the US House of Representatives and
the other in the Senate, declare that ‘‘judicial interpretations
regarding the meaning of the Constitution of the United States
should not be based . . . on judgments, laws, or pronouncements of
foreign institutions unless such [materials] inform an understanding
of the original meaning of the Constitution.’’23 The House
Resolution has so far garnered support from 54 co-sponsors. Two
2005-proposed Acts would do more than ‘‘resolve.’’ They would
positively prohibit federal courts, when interpreting the US
Constitution, from relying upon any law, policy, or other action of
a foreign state or international organisation, other than English
constitutional and common law ‘‘up to the time of the adoption of
18 Diarmuid F. O’Scannlain, ‘‘What Role Should Foreign Practice and Precedent Play in the
Interpretation of Domestic Law?’’, Lecture at the Institute of Advanced Legal Studies (Oct.
11 2004).
19 525 US 155, 173–174 (1999) (citing Sidhu v. British Airways plc [1997] 1 All E. R. 193).
20 537 US 186 (2003).
21 J. Harvie Wilkinson, ‘‘The Use of International Law in Judicial Decisions’’ (2004) 27 Harv. J.
Law & Pub. Pol. 423, 425.
22 Patricia M. Wald, ‘‘The Use of International Law in the American Adjudicative Process’’
(2004) 27 Harv. J. Law & Pub. Pol. 431, 439.
23 H.R. Res. 97, 109th Cong. (2005); S. Res. 92, 109th Cong. (2005).
C.L.J. Constitutional Adjudication 581
the [US] Constitution.’’24 (Even reference to a Scottish verdict, it
seems, would be out of order.) The Acts further provide that any
judge who refers to the prescribed materials shall be deemed to
have committed an impeachable offence.
These measures recycle similar resolutions and bills proposed
before the 2004 elections in the United States, but never put to a
vote. Although I doubt the current measures will garner sufficient
votes to pass, it is disquieting that they have attracted sizeable
support. And one not-so-small concern—they fuel the irrational
fringe. A recent example. The US Supreme Court’s Marshal alerted
Justice O’Connor and me to a 28 February 2005, web posting on a
‘‘chat’’ site. It opened:
Okay commandoes, here is your first patriotic assignment . . .
an easy one. Supreme Court Justices Ginsburg and O’Connor
have publicly stated that they use European laws and rulings
to decide how to rule on American cases.
This is a huge threat to our Republic and Constitutional
freedom. It is as much an assault on our liberty as anything
ever has been . . .. If you are what you say you are, and NOT
armchair patriots, then those two justices will not live another
week.
More than two months have passed. Justice O’Connor, I am happy
to report, remains alive and well. As for me, you can judge for
yourself.
To a large extent, I believe, the critics in Congress and in the
media misperceive how and why US courts refer to foreign and
international court decisions. The Washington Post, for example,
worried in a March 25 editorial ‘‘about the implications for liberty
and the democratic rights of the American people if the courts
outsource America’s constitutional tradition.’’25 We refer to
decisions rendered abroad, it bears repetition, not as controlling
authorities, but for their indication, in Judge Wald’s words, of
‘‘common denominators of basic fairness governing relationships
between the governors and the governed.’’26
Two decisions announced 26 April 2005, confounded those
fearful about the US Supreme Court’s use of foreign court
judgments to inform US adjudication. One case involved a man
convicted under a federal gun-control law. Once convicted of a
serious crime ‘‘in any court,’’ the law prescribed, the former
offender could not possess a firearm.27 The defendant had been
24 Constitution Restoration Act of 2005, x201, H.R. 1070, 109th Cong. (2005); Constitution
Restoration Act of 2005, x201, S. 520, 109th Cong. (2005).
25 ‘‘Outsourcing Rights’’, Washington Post 25 March 2005, at p. A18.
26 Wald, ‘‘Use of International law’’, at p. 442.
27 Small v. United States 544 US ; 125 S.Ct. (2005).
582 The Cambridge Law Journal [2005]
convicted in Japan for gun smuggling. Did ‘‘any court’’ mean any
court in the world? Or should ‘‘any court’’ be read to mean any
state or federal court in the United States? For good and sufficient
reasons, Justice Breyer, writing for a majority that included Justice
O’Connor and me, confined ‘‘any court’’ to those within our
borders. Justice Scalia was among the dissenters. He would have
counted the Japanese conviction. Justice Breyer has been billed as
‘‘perhaps the court’s leading advocate of the idea that the Supreme
Court needs to take greater notice of . . . legal opinions abroad.’’28
Justice Scalia, as I earlier noted, takes strong issue with that view.
A similar division attended the Court’s response to the question
whether persons involved in a scheme to smuggle cheap liquor from
Maryland into Canada, thereby evading Canada’s hefty taxes on
alcohol, could be prosecuted in the United States for wire fraud—
using interstate telephone wires to accomplish the scheme.29 Joined
by three of my colleagues including Justice Breyer, I expressed the
dissenting view that enforcement of Canada’s customs and tax laws
was that country’s prerogative, not ours. Both cases concerned the
territorial range of US laws. Recognizing that the legislature
ordinarily thinks domestically is entirely compatible with the view
that all involved in writing and interpreting laws would profit from
knowledge of other systems’ approaches and solutions to similar
problems.
Professor Vicki Jackson noted a point critics of comparative
sideglances perhaps overlook: the ‘‘negative authority’’ foreign
experience may sometimes have.30 She referred in this regard to the
‘‘Steel Seizure Case.’’31 There, Justice Jackson, in his separate
opinion, pointed to features of the Weimar Constitution in
Germany that allowed Adolf Hitler to assume dictatorial powers.
He contrasted Germany’s situation with that of France and Great
Britain, countries in which legislative authorisation was required for
the exercise of emergency powers. Justice Jackson drew from that
comparison support for the conclusion that, without more specific
congressional authorisation, the US President could not seize
private property even in aid of a war effort.
The US Constitution, Justice Scalia has noted, does not contain
any instruction resembling South Africa’s prescription. That
nation’s Constitution provides that courts, when interpreting the
Bill of Rights, must consider international law, and may consider
28 ‘‘The Court is Open for Discussion’’, Washington Post, 14 January 2005, at p. A12.
29 Pasquantino v. United States 544 US ; 125 S.Ct. (2005).
30 Jackson Statement, at p. 15.
31 Youngstown Sheet & Tube Co. v. Sawyer 343 US 579 (1952).
C.L.J. Constitutional Adjudication 583
foreign law. Other post-World War II Constitutions, India’s and
Spain’s for example, have similar prescriptions.
I would demur to Justice Scalia’s observation. Judges in the
United States are free to consult all manner of commentary—
Restatements, Treatises, what law professors or even law students
write copiously in law reviews, for example. If we can consult those
writings, why not the analysis of a question similar to the one we
confront contained in an opinion of the Supreme Court of Canada,
the Constitutional Court of South Africa, the German
Constitutional Court, or the European Court of Human Rights?
Israel’s Chief Justice, Aharon Barak, had it right, I think, when he
listed among questions on which comparative law inquiry could
prove enlightening or valuable in a positive or negative sense: hate
speech, privacy, abortion, the death penalty, and now the fight
against terrorism.
A case in point well-known to this audience. On 16 December
2004, in a controversy precipitated by the fight against terrorism,
the Lords of Appeal issued a waypaving decision, one that looks
beyond the United Kingdom’s borders.32 The case was brought by
aliens held in custody in Belmarsh prison. A nine-member panel
ruled, 8-to-1, that the British government’s indefinite detention of
foreigners suspected of terrorism, without charging or trying them,
is incompatible with the European Convention on Human Rights,
incorporated into domestic law by the UK Human Rights Act.
Lord Bingham’s lead opinion draws not only on domestic decisions
and decisions of the European Court of Human Rights. It also
refers to opinions of the Supreme Court of Canada and US federal
court opinions. Finding the differential treatment of nationals and
non-nationals impermissible under the Human Rights Act, Lord
Bingham also referred to several UN instruments, commencing with
the 1948 Universal Declaration of Human Rights and including the
1965 International Convention on the Elimination of All Forms of
Racial Discrimination.33
Other opinions too, in that noteworthy decision, contain
comparative references. One example: Baroness Hale, after noting
that ‘‘Belmarsh is not the British Guantanamo Bay,’’ quoted a
passage on the protection of minority rights from Thomas
Jefferson’s first inaugural address.34 Lord Bingham did make the
observation, gently, that contemporary ‘‘US authority does not
provide evidence of general international practice.’’35 That comment
32 A (FC) v. Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 A.C. 68.
33 Ibid., at paras. [58]–[62].
34 Ibid., at paras. [223], [237].
35 Ibid., at para. [69].
584 The Cambridge Law Journal [2005]
may have figured in the New York Times’ characterization of the
Lords’ ruling as ‘‘a strong example of the increasing
interdependence of domestic and international law, at least outside
of the United States.’’36 US District Judge Louis H. Pollak,
formerly dean of Yale Law School and, later, of the University of
Pennsylvania School of Law, in a February 2005 address at the
Inner Temple, called the Belmarsh decision ‘‘masterful’’. The Law
Lords, he said, ‘‘spoke in a firmer voice’’ than the US Supreme
Court has up to now on the detention of alleged terrorists without
charges or trial.37
The notion that it is improper to look beyond the borders of
the United States in grappling with hard questions, I earlier
suggested, has a close kinship to the view of the US Constitution as
a document essentially frozen in time as of the date of its
ratification. I am not a partisan of that view. US jurists honour the
Framers’ intent ‘‘to create a more perfect Union,’’ I believe, if they
read the Constitution as belonging to a global 21st century, not as
fixed forever by 18th-century understandings.
Justice Oliver Wendell Holmes, Jr., made the point felicitously in
a case decided in 1920, Missouri v. Holland, involving the treatymaking
power.38 ‘‘[W]hen we are dealing with words . . . [in] the
Constitution of the United States,’’ Holmes wrote, ‘‘we must realize
that they have called into life a being the development of which
could not have been foreseen completely by the most gifted of its
begetters . . .. The case before us must be considered in the light of
our whole experience and not merely in that of what was said a
hundred years ago.’’39
A key 1958 plurality opinion, Trop v. Dulles, sounds the same
theme.40 At issue in that case was whether stripping a wartime
deserter of citizenship violated the Eighth Amendment’s ban on
‘‘cruel and unusual punishments.’’ ‘‘The basic concept underlying
the . . . Amendment,’’ the opinion observed, ‘‘is nothing less than
the dignity of man.’’41 Therefore the constitutional text ‘‘must draw
its meaning from the evolving standards of decency that mark the
progress of a maturing society.’’42 In that regard, the plurality
reported: ‘‘The civilized nations of the world are in virtual
36 Lizette Alvarez, ‘‘British Court Says Detentions Violate Rights’’ New York Times 17
December 2004, at p. A1.
37 Louis H. Pollak, ‘‘Our New Supreme Court: Any Lessons from the US?’’, Seminar Jointly
Sponsored by the Constitutional and Administrative Law Bar Association and University
College London (23 February 2005).
38 252 US 416 (1920).
39 Ibid., at p. 433.
40 356 US 86 (1958) ( plurality opinion).
41 Ibid., at p. 100.
42 Ibid., at p. 101.
C.L.J. Constitutional Adjudication 585
unanimity that statelessness is not to be imposed as punishment for
crime.’’43
A fairly recent example of frozen-in-time interpretation is Grupo
Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., a 1999
decision involving no grand constitutional question, simply equity
between parties with no ideological score to settle.44 The basic
scenario: A Mexican company defaulted on payments due to a US
creditor and was sued in a Federal District Court, which had
personal jurisdiction over the debtor. Sliding into insolvency, the
Mexican company was busily distributing what remained of its
assets to its Mexican creditors. It did so in clear violation of a
contractual promise to treat the US creditor on par with all other
unsecured, unsubordinated creditors. Continuation of that activity
would leave nothing in the till for the US creditor. Since 1975,
British courts have been providing a remedy in similar
circumstances. To assure that there will be assets against which a
final judgment for the plaintiff creditor can be executed, courts in
this country issued Mareva injunctions, named after a decision of
the Court of Appeal by Lord Denning, M.R., approving the
practice.45 A Mareva injunction temporarily restrains a foreign
debtor from transferring assets pending adjudication of the
domestic creditor’s claim. A US District Court, ruling over two
decades after the leading UK decisions, looked to the Mareva
injunction, which other common-law nations had by then adopted,
and found it altogether fitting for the US creditor’s case against the
Mexican debtor. The Court of Appeals agreed. But a 5–4 majority
of the US Supreme Court concluded that Mareva injunctions were
not ‘‘traditionally accorded by courts of equity’’ at the time the
Constitution was adopted.46 A power that English courts of equity
‘‘did not actually exercise . . . until 1975,’’ the Court concluded, was
not one US courts could assume without congressional
authorisation.47
Joined by Justices Stevens, Souter, and Breyer, I dissented from
the Court’s static conception of equitable remedial authority.
Earlier decisions described that authority as supple, adaptable to
changing conditions. I noted, among other things, that federal
43 Ibid., at p. 102.
44 527 US 308 (1999).
45 Mareva Compania Naviera S.A. v. Int’l Bulkcarriers S.A. [1975] 2 Lloyd’s Rep. 509, 510–11
(CA). In the first case presenting the issue, Nippon Yusen Kaisha v. Karageorgis, [1975] 2
Lloyd’s Rep. 137 (CA), Lord Denning M.R. acknowledged that ‘‘[i]t ha[d] never been the
practice of the English Courts to seize assets of a defendant in advance of judgment or to
restrain the disposal of them.’’ Noting ‘‘that the practice on the Continent of Europe is
different,’’ he concluded ‘‘that the time has come when we should revise our practice.’’ (Ibid.,
at p. 138).
46 Grupo Mexicano 527 US at p. 319.
47 Ibid., at p. 329.
586 The Cambridge Law Journal [2005]
courts, in their sometimes heroic efforts to implement the public
school desegregation mandated by Brown v. Board of Education,
did not embrace a frozen-in-time view of their equitable authority.
Issuing decrees ‘‘beyond the contemplation of the 18th-century
Chancellor,’’48 they applied the enduring principles of equity to the
changing needs of a society still in the process of achieving ‘‘a more
perfect Union.’’
In Brown, I might note, apropos the respect due opinions of
humankind, the Attorney General of the United States filed an
amicus brief stressing the international importance of the case. The
brief included a letter from then-Secretary of State Dean Acheson.
Acheson observed:
[T]he continuance of racial discrimination in the United States
remains a source of constant embarrassment to this
Government in the day-to-day conduct of its foreign relations;
and it jeopardizes the effective maintenance of our moral
leadership of the free and democratic nations of the world.49
Turning from frozen-in-time interpretation, I will take up
another shortfall or insularity in current US jurisprudence, at least
as I see it. The Bill of Rights, few would disagree, is the hallmark
and pride of the United States. One might therefore assume that it
guides and controls US officialdom wherever in the world they
carry the flag of the United States or their credentials. But that is
not the currently prevailing view. For example, absent an express
ban by treaty, a US officer may abduct a foreigner and forcibly
transport him to the United States to stand trial. The Court so
held, 6-to-3, in 1992.50 Just a year earlier, South Africa’s Supreme
Court of Appeal had ruled the other way. It determined that under
South Africa’s common law, a trial court has no jurisdiction to
hear a case against a defendant when the State had acted lawlessly
in apprehending him by participating in an abduction across
international borders.51
Another example, one in which I was a participant, involving
civil litigation: Interpreting US Supreme Court precedent, a divided
US Court of Appeals for the D.C. Circuit held in 1989, during my
tenure on that court, that foreign plaintiffs acting abroad—plaintiffs
were Indian family planning organisations—had no First
Amendment rights, and therefore no standing to assert a violation
of such rights by US officials.52 In particular, the Indian
48 Ibid., at p. 337.
49 Brief for the United States as Amicus Curiae at 8, Brown v. Bd. of Educ. 347 US 483 (1954)
(No. 1).
50 United States v. Alvarez-Machain 504 US 655, 670 (1992).
51 State v. Ebrahim 1991 (2) S.A.L.R. 553, 568 (A).
52 DKT Mem’l Fund Ltd. v. Agency for Int’l Dev. 887 F.2d 275, 284–85 (D.C. Cir. 1989).
C.L.J. Constitutional Adjudication 587
organisations complained of a condition on US grant money: the
recipients could not engage in any abortion counselling, even in a
separate entity and with funds from other sources. In dissent, I
resisted the notion that in an encounter between the United States
and nonresident aliens, ‘‘the amendment we prize as ‘first’ has no
force in court.’’53 I expressed the expectation that the position
taken in the Restatement (Third) of Foreign Relations would one
day accurately describe our law. ‘‘[W]herever the United States
acts,’’ the Restatement projects, ‘‘ ‘it can only act in accordance
with the limitations imposed by the Constitution.’ ’’54
That point was well stated by Columbia University Professor
Louis Henkin, a principal drafter of the current Foreign Relations
Restatement, former president of the American Society of
International Law, and Editor of the Society’s journal. Henkin wrote:
[I]n a world of states, the United States is not in a position to
secure the rights of all individuals everywhere, [but] it is always
in a position to respect them. Our federal government must
not invade the individual rights of any human being. The
choice in the Bill of Rights of the word ‘‘person’’ rather than
‘‘citizen’’ was not fortuitous; nor was the absence of a
geographical limitation. Both reflect a commitment to respect
the individual rights of all human beings.55
Returning to my main theme, I will recount chronologically the
Supreme Court’s most recent 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 Chief Justice Rehnquist
and Justices Scalia and Thomas) held unconstitutional the execution
of a mentally retarded offender.56 The Court noted that ‘‘within the
world community, the imposition of the death penalty for crimes
committed by mentally retarded offenders is overwhelmingly
disapproved.’’57 The following 2002–2003 Term was appraised as
pathmarking. New York Times reporter Linda Greenhouse observed
in July 2003, in her annual roundup of the Supreme Court’s
decisions: The Court has ‘‘displayed a [steadily growing]
attentiveness to legal developments in the rest of the world and to
the [C]ourt’s role in keeping the United States in step with them.’’58
53 Ibid., at p. 308 (R.B. Ginsburg J., concurring in part and dissenting in part).
54 Ibid. (quoting Restatement (Third) of Foreign Relations Law of the United States x 721 note 1
(1987) (quoting from Reid v. Covert 354 US 1, 6 (1957) ( plurality opinion of Black J.))).
55 Louis Henkin, ‘‘The Constitution as Compact and as Conscience: Individual Rights Abroad
and at Our Gates’’ (1985) 27 Wm. & Mary L. Rev. 11, 32.
56 536 US 304 (2002).
57 Ibid., at p. 317, n. 21.
58 Linda Greenhouse, ‘‘The Supreme Court: Overview; In a Momentous Term, Justices Remake
the Law, and the Court’’ New York Times, July 1th 2003, at p. A1.
588 The Cambridge Law Journal [2005]
Among examples, I would include the Michigan University
affirmative action cases decided 23 June 2003.59 In separate
opinions, joined in one case by Justice Breyer, in the other in full
by Justice Souter and in part by Justice Breyer, I looked to two
United Nations Conventions: the 1965 International Convention on
the Elimination of all Forms of Racial Discrimination, which the
United States has ratified; and the 1979 Convention on the
Elimination of All Forms of Discrimination Against Women,
which, sadly, the United States has not yet ratified. Both
Conventions distinguish between impermissible policies of
oppression or exclusion, and permissible policies of inclusion,
‘‘temporary special measures aimed at accelerating de facto
equality.’’60 The Court’s decision in the Michigan Law School case,
I observed, ‘‘accords with the international understanding of the
[purpose and propriety] of affirmative action.’’61
A better indicator from the same Term, because it attracted a
majority, is Justice Kennedy’s opinion for the Court in Lawrence v.
Texas, announced on 26 June 2003.62 Overruling the Court’s 1986
decision in Bowers v. Hardwick, Lawrence declared unconstitutional
a Texas statute prohibiting two adult persons of the same sex from
engaging, voluntarily, in intimate sexual conduct. On the question
of dynamic versus static, frozen-in-time constitutional
interpretation, the Court’s opinion instructs:
Had those who drew and ratified the Due Process Clauses of
the Fifth Amendment or the Fourteenth Amendment known
the components of liberty in its manifold possibilities, they
might have been more specific. They did not presume to have
this insight. They knew times can blind us to certain truths
and later generations can see that laws once thought necessary
and proper in fact serve only to oppress. As the Constitution
endures, persons in every generation can invoke its principles
in their own search for greater freedom.63
On respect for ‘‘the Opinions of [Human]kind,’’ the Lawrence Court
emphasised: ‘‘The right the petitioners seek in this case has been
accepted as an integral part of human freedom in many other
countries.’’64 In support, the Court cited the leading 1981 European
Court of Human Rights decision, Dudgeon v. United Kingdom, and
subsequent European Human Rights Court decisions affirming the
59 Gratz v. Bollinger 539 US 244 (2003); Grutter v. Bollinger 539 US 306 (2003).
60 Annex to G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at art. 4(1), U.N. Doc.
A/34/46 (1979).
61 Grutter, 539 US at p. 344.
62 539 US 558 (2003).
63 Ibid., at p. 579.
64 Ibid., at p. 577.
C.L.J. Constitutional Adjudication 589
protected right of homosexual adults to engage in intimate,
consensual conduct.
In the 2003–2004 term, foreign and international legal sources
again figured in several decisions. These included, most notably,
two June 2004 decisions. One, Hamdi v. Rumsfeld, concerned a US
citizen, held incommunicado in a Navy brig in South Carolina
pursuant to an executive decree declaring him an ‘‘enemy
combatant’’.65 Ruling some six months before the Lords’ decision
in the Belmarsh case, the Court held, 8-to-1, that the petitioner was
entitled, at least, to a fair opportunity to contest the factual basis
for his detention. 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 a four-Justice plurality,
‘‘we must preserve our commitment at home to the principles for
which we fight abroad.’’66 ‘‘[H]istory and common sense,’’ she
reminded, ‘‘teach us that an unchecked system of detention carries
the potential to become a means for oppression and abuse.’’67 That
point received eloquent statement in Lord Hoffman’s opinion in the
Belmarsh case.
The other ‘‘enemy combatant’’ case, Rasul v. Bush, held that US
courts have jurisdiction to consider challenges to the legality of the
detention of foreign nationals captured in hostilities abroad, then
transported to the US naval base in Guantanamo Bay, Cuba.68
Lord Steyn, before this decision, called Guantanamo a ‘‘legal black
hole.’’69 The Supreme Court has so far written only chapter one on
the Guantanamo Bay incarcerations. Federal district court judges
have split on chapter two. One judge held that foreigners detained
at Guantanamo Bay, though they had access to court, could gain
no judicial relief.69a Another ruled that the detainees were entitled
to a fair hearing on the question whether their incarceration meets
due process demands.69b Both cases are currently on appeal.
The Supreme Court’s March 2005 decision in Roper v. Simmons
presents perhaps the fullest expressions to date on the propriety
and utility of looking to ‘‘the opinions of [human]kind.’’70 Holding
unconstitutional the execution of persons under the age of 18 when
they committed capital crimes, the Court declared it fitting to
acknowledge ‘‘the overwhelming weight of international opinion
65 124 S.Ct. 2633 (2004).
66 Ibid., at p. 2648.
67 Ibid., at p. 2647.
68 542 US ; 124 S. Ct. 2686 (2004).
69 Johan Steyn, ‘‘Guantanamo Bay: The Legal Black Hole’’ (2004) 53 Int’l & Comp. L. Q. 1.
69a Khalid v. Bush 355 F. Supp 2d 311 (D.D.C. 2005).
69b Re Guatanamo Detainees 355 F Supp 2d 443 (D.D.C. 2005).
70 543 US ; 125 S.Ct. 1183 (2005).
590 The Cambridge Law Journal [2005]
against the juvenile death penalty.’’71 Justice Kennedy wrote for the
Court that the opinion of the world community provides ‘‘respected
and significant confirmation of our own conclusions.’’72 ‘‘It does
not lessen our fidelity to the Constitution,’’ he explained, to
recognise ‘‘the express affirmation of certain fundamental rights by
other nations and peoples.’’73
The Roper opinion pointed, specifically, to the United
Kingdom’s abolition of the juvenile death penalty over 50 years
ago. The UK’s ‘‘experience bears particular relevance,’’ Justice
Kennedy noted, ‘‘in light of the historic ties between our countries
and in light of the Eighth Amendment’s own origins . . . in the
English Declaration of Rights of 1689.’’74
Justice O’Connor, although she dissented from the Court’s
categorical ruling, agreed with the Court on the relevance of ‘‘foreign
and international law to [an] assessment of evolving standards of
decency.’’75 The other dissenters, for whom Justice Scalia spoke,
vigorously contended that foreign and international law have no
place in determining what punishments are ‘‘cruel and unusual’’
within the meaning of the US Constitution’s Eighth Amendment.76
Recognizing that forecasts are risky, I nonetheless believe we 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 new solutions to the new legal problems
that arise each day, from which we can learn and benefit.’’77
In this regard, I was impressed by an observation made in
September 2003 by Israel’s Chief Justice 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.’’78 He spoke of his own Court’s efforts to balance the
government’s no doubt compelling need to secure the safety of the
71 Ibid., at p. 1200.
72 Ibid.
73 Ibid.
74 Ibid., at p. 1199.
75 Ibid., at p. 1215 (O’Connor J., dissenting).
76 Ibid., at p. 1228–29 (Scalia J., dissenting).
77 Sandra Day O’Connor, ‘‘Broadening Our Horizons: Why American Judges and Lawyers Must
Learn About Foreign Law’’, Int’l Jud. Observer, June 1997, at p. 2.
78 Aharon Barak, ‘‘The Relationship of United States Constitutional Law and Foreign
Constitutional Law’’, Panel Discussion at Columbia Law School (Sept. 12th 2003).
C.L.J. Constitutional Adjudication 591
State and of its citizens on the one hand, and the nation’s high
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.’’ 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.79
Lord Hoffman spoke to the same effect in his 16 December 2004,
opinion. He concluded:
The real threat to the life of the nation, in the sense of a
people living in accordance with its traditional laws and
political values, comes not from terrorism but from laws such
as [section 23 of the 2001 Antiterrorism, Crime & Security Act,
authorising indefinite imprisonment without charge or trial].
That is the true measure of what terrorism may achieve.80
He hoped, after the Lords of Appeal ruling, Parliament would not
‘‘give the terrorists such a victory.’’81 Parliament, you no doubt
know, reacted swiftly to the Lords’ decision by enacting in March a
measure allowing placement of terrorist suspects under a highly
restrictive form of house arrest, in lieu of imprisonment, again
without charging or trying them.
We live in an age in which the fundamental principles to which
we subscribe—liberty, equality, and justice for all—are encountering
extraordinary challenges. But it is also an age in which we can join
hands with others who hold to those principles and face similar
challenges. May we draw inspiration from Abigail Adams, who
wrote to her son, the future President, of the era in which he was
coming of age:
These are the times in which a genius would wish to live. It is
not in the still calm of life, or the repose of a pacific station,
that great characters are formed. The habits of a vigorous
mind are formed in contending with difficulties.82
79 H.C. 5100/94, Pub. Comm. Against Torture in Isr. v. Gov’t of Israel, 53 (4) P.D. 817, 845.
80 A v. Secretary of State for the Home Department, [2004] UKHL 56, at para. [97].
81 Ibid.
82 Letter from Abigail Adams to John Quincy Adams, quoted in David McCullough, John
Adams (London 2001), 226.
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