Thursday, June 16, 2005

Distinguishing the Death Penalty in the "Opinions of Mankind" Debate

Prompted by Roger's post (and also by some edits to a comment about Justice Blackmun's "internationalism" that I have been working on), I took a look at Eugene Kontorovich's essay in Green Bag about misplaced reliance by jurisprudential internationalists on the phrase "Opinions of Mankind." (I am not sure the phrase has become "a staple of the internationalist argument" as Kontorovich contends, but it certainly has popped up here and then -- even on this blog!) Kontorovich's main beef appears to be that, whatever its rhetorical flourish, the phrase was not intended by the drafters of the Declaration of Independence as respect for other nations' opinions in the sense of learning from others and emulating them, but rather was intended to reflect the founders' desire to inform others of their reasoned declaration of separation and their hope to affect events in other nations.

Kontorovich does, however, acknowledge that the founders saw the practical effects of gaining respect and recognition from the other nations states in the international system at the time of the declaration -- including trade relations, defense and commercial treaties and, perhaps most important, the availability of credit. But, he argues, it was a limited appeal to a small number of European states who could be helpful in those regards, not to the broader "international community" of the day. He cheekily suggests, for example, that we should therefore only listen to those states "views" on such issues as the death penalty when those states can lend us troop support for Iraq. (My cheeky response: Okay, so how about listening to England? They supported us AND are death penalty abolitionists.)

I do not know enough about the primary documents Kontorovich references to take issue with his argument. It seems right that, if indeed the founders intended to merely submit their rationales to the rest of the world, using the "opinions of mankind" to include the views of foreign states and NGOs about our own constitutional practices is misplaced. But if he is right about the selectivity the founders intended to attach to the "opinions of mankind," he undermines the centrality of the argument with his conclusion that one of the dangers of judges looking to foreign law is that they will use it selectively. Indeed, he cites Scalia's dissent in Roper: "All the Court has done today ... is to look over the heads of the Crowd and pick out its friends." Well, so long as those are true friends (trading partners, members of NATO, supporters of the war in Iraq) why not look to their practices?

Buth the core problem with the analysis is that Kontorovich overlooks what to me is the central point distinguishing Roper from uses of foreign or international law sources in other contexts (and yes, he conflates international law with foreign sources, as Tony D'Amato is correct to point out in his comments to Roger's post): The reason Justice Kennedy spent a lot of time discussing foreign practices and international agreements in Roper is because it was an 8th Amendment case. Eighth Amendment cases have, at least since Thompson v. Oklahoma, looked at the "evolving standards of decency" of the civilized world in determining whether the punishment at issue is "cruel and" -- importantly -- "unusual." So, when it tried to figure out whether executing juveniles is "unusual," the Missouri Supreme Court looked to the practices of other states of the US, to other nations practices, and to the international instruments that, in effect, represent the collectivity of certain other nations' practices. ** In his opinion, Kennedy did the same. It seems to me fair enough to oppose such analysis as means of standard-setting -- as Scalia so forcefully did in his dissent, objecting, for example, to including any states that had abolished the death penalty in a statistical analysis of states that oppose the juvenile death penalty. But, ironically, the picking and choosing of "civilized" nations whose practices we wish to emulate on the death penalty seems to fit in nicely with Kontorovich's vision of whose "opinions" would have mattered in the kind of instrumentalist calculation he ascribes to the founders.

I generally agree that appeals to what the founders thought about any of these issues are not, at the end of the day, terribly useful. The fact that we find ourselves discussing it at all-- and much more often than I would like -- is a mark of the success of those promoting the return to "originalism" over the past decade or so. Kontorovich's essay just demonstrates how misleading the references can be whether they are deployed on behalf of conservative or liberal arguments.

**(I am setting aside the more difficult argument that, even though the US has not signed the ICCPR Optional Protocol abolishing the death penalty, the protocol may nonetheless bind the US as customary international law. To me, that's a non-starter.)

4 Comments:

Anonymous Anonymous said...

Generally speaking, I find the quality of argumentation among conservative law professors in this whole debate over "foreign law" to be abysmal. As Prof. D'Amato pointed out, they seem either unwilling or unable to distinguish between foreign domestic law and international law, which is maddening. But even more fundamentally, I suspect that the conservative law professors' petulant disdain and/or jingoistic fury toward the international community impedes their ability to craft any type of dispassionate or persuasive legal argument. In this regard, Kontorovich's aside about "lend[ing] us troop support for Iraq" is telling.

For example, last fall my law school hosted a debate about this very issue. The conservative law professor representing the "con" side launched into a spirited harangue that was free of any legal argumentation (that I could discern, anyway). Instead, he took the opportunity to, among other things, extol the virtues of our laissez-faire, capitalist economy, and thus warned against citing foreign laws from "collectivist" European societies (no, I'm not making this up). Suffice it to say that this professor had no background in comparative law, international law, or even foreign relations law (like Goldsmith or Bradley). But why let that get in the way of a satisfying diatribe against Eurosocialism, right?

6/16/2005 10:06 PM  
Anonymous Eugene Kontorovich said...

I was happy to read the thoughtful discussion here of my Green Bag article. In that article, I took issue with proponents of using foreign law in constitutional interpretation who quote as originalist support for their position the Declaration of Independence’s reference to a “decent respect for the opinions of mankind.” I showed that “decent respect” did not refer to following the opinions of others, but merely explaining to them our actions – and even then only when doing so might gain concrete political benefits for America. Professor McGuiness responds with several points, which I’ll discuss in turn.

I’ll begin with clarifying a point from my article that Prof. McGuiness mentions. My article acknowledges that the Framers used the Declaration in part to secure the international law benefits of recognition and trade relations. I would not make too much of this fact in the context of the present debate. The point is distinct from the Founder’s invocation on the “opinions of mankind,” and also from the question of looking to foreign law. Members of the Congress believed a formal announcement of the birth of the new nation was needed because it is a prerequisite to recognition and treaties; that is why they agreed to issue the Declaration. But that motivation behind the Declaration is also distinct from the primary motivation of convincing Britain’s enemies that the Colonists break with their mother country was irreparable. It was the latter purpose that gave rise to the phrase “a decent respect to the opinions of mankind requires that they declare the causes” of their revolution. Securing the “international law” benefits could be done by a simple pronouncement of independence; convincing others that we were serious about it required a recitation of unpardonable sins of Britain.

Professor McGuiness suggests that the Founder’s selective definition of “mankind” – basically, France and Spain – undermines my argument that one of the dangers of using foreign law is that judges will use it selectively. What’s wrong with the Justices looking only to the laws of our “friends” to gain their “respect” if the Framers appealed to the opinions of potential allies? If the Framers tried to ingratiate us with other nations by convincing them of our determination to fight Britain in the Revolutionary War, what’s wrong with the Court ingratiating us to allies by showing our distaste for the juvenile death penalty today?

This rather gets to the heart of the matter. The difference is the Declaration was written by Congress, Roper by the Court. Trying to ingratiate America with foreign countries is a matter of pure foreign policy and is not a goal that the Court is constitutionally authorized or institutionally capable of pursuing. Ingratiation has costs – here, the abandonment of an instrument of criminal punishment. Whether those costs are worth the benefits in increased “respect” is surely a determination for the political branches. I, for example, predict that this increased “respect,” if it has in fact been won by Roper, is worth little in itself to all except a small American elite, and certainly will not make any practical difference to our foreign relations. Maybe I’m wrong, and the internationalist turn in constitutional interpretation will make us popular where we previously were not, and open the door all sorts of foreign relations benefits. But the question is clearly debatable, and it is not a debate for lawyers or judges to be involved in. It is purely a policy matter. In other words, Congress and the President can look over the crowd of nations and pick out our friends. The Court is not even in position to determine the political question of who is a friend, and the even more political question of which friends’ respect we should try to gain. (Saudi Arabia, for example, is a “friend,” but surely the Court would not try to hard to win its respect by adopting Saudi notions of punishment.)

I agree with Professor McGuiness that the Eighth Amendment can, in principle, be distinguished from others in terms of the appropriateness of looking to foreign law. I’m not sure I agree with this view, but it is certainly plausible to argue that the word “unusual” invites a comparative analysis. However, while this distinction can be made, I do not think it has or will be made by the Court. The Court’s recent use of foreign law has not been limited to the Eighth Amendment – Lawrence was a Due Process case, and with that door open, its hard to see how the other ones will be kept shut. In my Green Bag article, I focused on Roper simply because it was more recent and used foreign law more extensively, but the scholarly and judicial push for internationalist interpretation is not confined to such cases.

Certainly some of the scholars who I criticized in for misquoting the Declaration, like Harold Koh, make far broader claims for the usefulness of foreign law in constitutional interpretation. Justice Ginsburg, in her speech at the ASIL meeting, suggested that foreign and international sources are relevant to all questions of constitutional interpretation, and even reminded the audience that she upheld Michigan’s affirmative action policies partially on basis of an “international understanding” that such policies are benevolent. Professor D’Amato, in comments to the earlier post, suggests that one reason to look to foreign law is that we are “physically and economically embedded in the world,” and thus should be legally embedded. That goes for beyond the Eighth Amendment.

A final word about confusing foreign and international law. They are of course different creatures, and to conflate them is sloppy practice. I intentionally referred to both in my article, because Roper invokes both the practices of particular nations and provisions of international conventions to which the U.S. had not consented. It seems that the invocation of the importance of the “opinion of mankind” in constitutional interpretation (the narrow subject of my article) argues just as much for using foreign as international law, especially if one believes international conventions particularly embody the “opinions of mankind.” Also, my sense of the internationalist arguments is that using both is equally valid.

6/17/2005 9:50 AM  
Anonymous Anonymous said...

the distinction between foreign and international law is less important than made out to be in these posts. proponents of using international law in US courts often cite to decisions of foreign domestic courts as evidence of customary internationa law. for example, Amnesty, in its anti-death penalty activism, cites the number of states that have ended the death penalty and the alleged accelerating trend in abolition as evidence that an "emerging norm of customary international law" prohibits the death penalty.

also, the question of what states we take into account when determing out law is crucial and not as clear cut as PRof Macguinnes makes it out to be. It's only the overall law of all states that should be relevant; all states are equal in international law, and only if we say that some states are more equal than others should the opinions of liberal democracies count in the determination of what is law. as a policy matter, of course, we should only look to states that share similar values, but that's for legislators, not judges. but it gets more complicated, becuase there are states with whom we share values that do retain, say, the death penalty--India and Japan for example, both of which are constitutional liberal democracies. At the same time, as Justice Scalia has pointed out, we have differences over values with our supposedly similar states--we give greater protection to speech, abortion, and the accused than most European states. So, again, in term of law, as opposed to policy, advocates of itnernatonal/foreign law need to find some better principle on which to rely if their approach is not seen as selective and used to suppor their policy preferences.

6/17/2005 11:08 AM  
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