"A decent respect to the opinions of mankind": referring to foreign law to express American nationhood.

AuthorTushnet, Mark V.
PositionSymposium: "Outsourcing Authority?": Citation to Foreign Court Precedent in Domestic Jurisprudence

What are we to make of references to non-U.S, law in Supreme Court opinions? (1) One place to begin is by distinguishing between uses and references. A court uses a source of law when that source provides some degree of authority to support a material proposition in its analysis. A source of law provides authority when the mere fact that it is a source supports the proposition; an authority has force independent of the reasons that support the court's assertions. (2) A reference, in contrast, is a statement that something is a legal proposition, without any suggestion that the matter referred to has any authority beyond that fact. (3)

Importantly, the recent invocations of non-U.S, law in Supreme Court opinions are references, not uses. (4) Nor, I emphasize, do references imply that the matters referred to have any degree of authority. For example, referring to a decision of the European Court of Human Rights to reject the proposition that some practice has been universally condemned in Western society does not imply anything about the correctness of the European Court's decision, or that the substance of its decision has weight independent of whatever reasons can be mustered in its support. (5) Another example: The statement "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved" (6) does not accord that disapproval any authoritative weight, nor does it purport to "fabricate 'national consensus,"' to quote Justice Antonin Scalia's derisive phrase. (7) It reports a fact about the world, and the report's accuracy has not been challenged. Such references are indistinguishable in this regard from, for example, citations to law review articles as sources of factual information. (8)

Why might a court refer to non-U.S, law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. (9) Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S, law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. (10) Rather, I mean that references to non-U.S, law might be a way of ensuring that the United States helps lead the world's nations to a better way of governing themselves and their peoples. (11)

That there is such a national self-understanding emerges from consideration of some brief texts that are classics precisely because they capture this self-understanding. The earliest, perhaps, is John Winthrop's sermon on the Arabella, as the Pilgrims approached the new world. (12) In this sermon, Winthrop said that the Pilgrims were about to create a "citty [sic] upon a hill" with the "eies [sic] of all people ... uppon [sic] us." (13) How this new city unfolded in history would provide guidance to the rest of the world. Winthrop may have been the first to articulate this vision. Ronald Reagan is among the most recent. In his farewell address to the American people, Reagan echoed Winthrop, referring to the United States as a "shining city upon a hill." (14) And between them there is Abraham Lincoln, describing the task of preserving a truly United States as one that would save--or lose--"the last best hope of earth." (15) But in discussions of the practice I am concerned with here, the canonical reference is to the phrase in the Declaration of Independence, "a decent respect to the opinions of mankind." (16)

These statements say something about one version of the nation's self-understanding, but on their face they do not seem to support referring to other nations' law. They seem rather to be about other nations referring to--paying attention to and emulating--the United States. (17) I suggest, though, that referring to non-U.S, law might be incorporated into that self-understanding for reasons that I call prudential and philosophical.

These reasons are best explored by attending to the full passage of the Declaration in which the "decent respect" phrase occurs:

W[hen] in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. (18) As Eugene Kontorovich explains, one important reason for paying respect to the opinions of mankind was prudential. (19) The rebellious Americans needed international support, or at least international neutrality, in their struggle for national liberation. (20) In particular, France, a monarchy, had to be assured that the American struggle was an attack, not on monarchy as such, but only on the British monarchy, for reasons arising out of its colonial misgovernment rather than out of an anti-monarchical principle. (21) The long enumeration of grievances that made up the bulk of the Declaration localized the American challenge. (22)

On this interpretation, the Declaration's reference to the opinions of mankind was almost precisely the opposite of a call for other nations to emulate the rebels. Yet, in the present context we can invoke its underlying idea that prudence sometimes dictates looking abroad. The national...

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