Friday, June 17, 2005

Response from Kontorovich on Foreign and International Sources

Professor Eugene Kontorovich has kindly sent along the following comments to my earlier post:

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 McGuinness responds with several points, which raise interesting questiosn. I'll discuss each in turn.

I’ll begin with clarifying a point from my article that Prof. McGuinness 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 revo
lution. 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 McGuinness 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, a
nd 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 McGuinness 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.

Signing Off From India

I had the opportunity to speak to the Madras Bar Assocation today and while I was at the High Court I came upon this quote which I liked. It is from the first Indian Judge to ever sit on the Madras High Court, Sir Muthuswamy Aiyar (1878-1895):

"The Court of Justice is a sacred temple, the judges presiding over it are, though men, the humble instruments in the interests of truth and those who enter this holy edifice with unholy thought or desecrate it with unworthy actions, are traitors to their country. Those of you who may rise to the Bench should recollect that the power you may be called upon to exercise in the name of your sovereign is according to one of your ancestors a Power Divine. You should remember, if you desire to preferential eminence, that the law is both a science and an art and that success whether at the Bar or on the Bench, will depend upon the clearness with which you pass through complicated mass of facts in the midst of animated and often eloquent addresses, taking in as it were by intention each fact, referring to it its appropriate principle, and estimating its legal value within a given time. The study of law, as has been well said, is in a higher sense the study of philosophy of social life. The art you have to practice is a noble one."

I have enjoyed blogging from India.

Thursday, June 16, 2005

More on Foreign Influences

That is very helpful Peggy. I think you raise some interesting arguments regarding selective appeal to foreign opinion and provide a useful critique of Kontorovich.

This underscores for me yet again what is most interesting in the debate about originalist appeals to reliance on foreign opinions in constitutional adjudication. It is that the internationalists have been quite successful in using this one passing reference in the Declaration as a critical vehicle to frame the debate. We thus debate the motives of the draftsmen of that document and try to analogize from their motives what our motives should be in dealing with foreign opinion today.

My point in citing to Washington’s Farewell Address is that reliance on the Declaration’s language is no more legitimate (indeed arguably is less legitimate) than reliance on Washington’s Farewell Address. The Declaration was a 1776 appeal to foreigners to support the American revolutionary cause. Washington’s Farewell Address was a 1796 appeal to Americans for support in the American republican cause. It was a valedictory speech by Washington (and the original draftsman Hamilton) to his fellow Americans on how they should run the country now that he was exiting the stage. Washington’s message, as discussed at length in Joseph Ellis’ book, His Excellency, was that Americans should be very suspicious in foreign relations. Why? In large part because in his view their motives are not pure and their conduct is intended solely to further their own national interests, not the American cause. (I'm not suggesting that is my view of foreign relations today, but it most certainly was our Founding Father's view.)

I should again emphasize that I do not think it is appropriate to rely on either the Declaration of Independence or Washington’s Farewell Address to help us decide whether we should rely on foreign opinion in constitutional interpretation. Had the Constitution provided some guidance on the question, that would be another matter. But unlike some modern constitutions, our Constitution gives us precious little guidance.

Thus, I am not suggesting that nationalists should use the Farewell Address as an originalist appeal to advance the cause of non-reliance on foreign opinion in constitutional adjudication. But they could use it to rebut the internationalist assertions of founders’ intent based on proof-texting from the Declaration of Independence.

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.)

Wednesday, June 15, 2005

"Insidious Wiles of Foreign Influence"

As noted here at the Volokh Conspiracy, Eugene Kontorovich has an excellent essay in Green Bag on misusing language in the Declaration of Independence to support reliance on foreign opinion in constitutional adjudication. Kontorovich argues that the function of the internationalist appeal to the Declaration is to “show that this approach has the most ancient and noble pedigree, that the Founding generation would be sympathetic to what is now considered an innovative and controversial practice.” However, he argues (quite convincingly) that the appeal to the Declaration is a “misquotation” by scholars who are "playing fast-and-loose with our founding documents."

Which got me thinking, if one side of the debate is playing fast-and-loose with the Declaration of Independence, why not have the other side do the same with other founding documents, say George Washington’s Farewell Address of 1796. It would seem as relevant as the Declaration for the current debate on the role of foreign opinions in U.S. adjudication. The other team should invoke the admonition of George Washington that:

“…The nation which indulges towards another … a habitual fondness is in some degree a slave... A passionate attachment of one nation for another produces a variety of evils…. [I]it gives to ambitious, corrupted, or deluded citizens … facility to betray or sacrifice the interests of their own country … gilding, with the appearances of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation. As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils… Against the insidious wiles of foreign influence … the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government….”

If Thomas Jefferson is the team mascot for those who wish to “pay decent respect to the opinions of mankind,” then the other team should adopt George Washington as their mascot to warn against the “insidious wiles of foreign influence.”

Of course, in the current debate I would advocate playing fast-and-loose with neither the Declaration of Independence nor Washington’s Farewell Address.

Tuesday, June 14, 2005

It Takes a Progressive to Have a Realistic Foreign Policy

In a response to my earlier post on Ikenberry’s views on progressive versus conservative foreign policy thinking, an anonymous commenter wrote:

I don't buy either Ikenberry's superficial presentation in this post, or the underlying superiority of the liberal order as defined as "commitment to multilateralism and rules-based relations," which again is simplistic in the extreme. Clinton wanted to build "liberal" order? I'd like to see substantive evidence of this accomplishment. And to lump FDR, Truman and Kennedy into one basket, as to foreign policy in promoting democracy abroad, is ill conceived.

In terms of the construction of the liberal order during the Clinton Administration, consider the effects that the ICTY and the ICTR have had on international criminal law or that NAFTA and the WTO have had on trade law, investment protection, and economic dispute resolution. While it is true that some institutions didn’t achieve the goals of their founders (the Asia-Pacific Economic Conference, for example), the point is that there was a concerted effort at strategically building and/or using international institutions to respond to our foreign policy needs.

Clinton's eight years in office saw more international institution building in America's interest than probably the previous thirty years combined. That is partially a function of (a) the end of the Cold War, (b) the recognition of new threats, and (c) the increased possibility of greater international cooperation with Russia and China. But these factors would have come to nothing if it were not for American leadership in building or using international institutions and supporting treaty systems (like the Convention Against Torture).

Note that some of these institutions (the WTO and NAFTA in particular) were not supported by the far left or the far right but rather by moderate Democrats and Republicans with a progressive world view. I tend to think that the extremes of both parties, while making for great headlines and fun blog posts, have historically contributed very little to America's actual foreign policy. We'll see if the current administration changes that or if it moves towards the center. And, while Ikenberry's post isn't perfect, it has an insight as to fundamental differences between conservatives and progressives. And the progressives have tended to do the heavy lifting in maintaining international security and economic stability.

FDR, Truman, and Kennedy have far more in common with each other (and with George H.W. Bush, for that matter) than with George W. Bush. FDR and Truman conceived of and/or built the UN, GATT, NATO, the ICJ, the World Bank and the IMF. Kennedy extended GATT and deftly applied the UN and the OAS in crises in Cuba and elsewhere in the Caribbean and the world. These Presidents were not identical in ideology or execution but they are part of a continuum.

What have the conservatives got to show? To turn around the query of the anonymous commenter: I would like to see some substantive evidence of their accomplishments. Not a "democratic wave" (the critique of Ikenberry and others) and not a new world order or even a stabilized old world order. War, yes, I'll give them that. But getting to war is easy; securing peace is hard.

What's Wrong With This Syllogism?

If (1) Justice Breyer thinks reference to foreign law is appropriate to understand structural guarantees; and (2) Congress is constitutionally authorized to regulate the jurisdiction of federal courts; then (3) Justice Breyer should rely on foreign law to shed light on this structural power.

If this syllogism is correct, then I suppose that if (1) a foreign constitution grants the legislature the absolute right to remove any matter from judicial review; and (2) Congress resolves to preclude federal court reliance on foreign law; then (3) Justice Breyer should rely on this foreign law to lend support for Congress’ authority to preclude judicial reliance on foreign law.

What am I missing? Just curious.

Monday, June 13, 2005

Ricardo in Bangalore

I teach international trade and my students have often struggled to understand Ricardo’s theory of comparative advantage. They should visit Bangalore.

The modern era of free trade is premised on Ricardo’s theory, which presumes that each country should specialize in the production of the goods and services in which it has a comparative advantage and then trade with other countries for goods and services in which they have a special advantage. This is great for consumers worldwide, but creates huge risks and opportunities of worker displacement.

While exploring the streets of Bangalore this weekend, I was overwhelmed at the application of Ricardo’s theory in practice. My host, a bright enthusiastic young pharmaceutical salesman, spent the day explaining life as a young professional in Bangalore. Several completely anecdotal and unrefined (if you want refined see here and here) thoughts on life in Bangalore:

First, it is hard to describe the construction and development that is occurring in Bangalore. The amount of construction resembles the phenomenal construction era of past decades in the boom towns of Dallas, Atlanta and Houston. This is on top of numerous industrial parks already built. Clearly thousands of foreign corporations have wagered that there is a long-term comparative advantage in placing jobs in Bangalore.

Second, the salary of an Indian IT professional is dramatically lower than an American counterpart. My host guessed that his friend who is a top young gun working at Microsoft in Bangalore is making about $45,000. Most make less, much less. But the cost of living is dramatically lower as well. The Indian rupee trades at about 45 to $1 but in my view the buying power feels like approximately 10 to 1. That is, a typical casual sit down lunch will set you back $1.50, compared with $15 in Los Angeles. Any American who has traveled to London knows the sticker shock of nearly every product costing twice as much. Imagine the sticker shock of most things costing 10 times less. Now imagine what this price differential does to concentrate the mind of a cost-cutting foreign corporation.

Third, one can scarcely describe the number of upwardly mobile Indians in Bangalore. Sunday night at the brand new Forum Mall in Bangalore is like December 24th in an American mall. Wall-to-wall shoppers in the thousands. Since the 1990s, there is a new economy clustering effect taking place, and these professionals are at the high value chain in the Indian IT industry. They are yuppies who yearn for rupees to burn. It appeared that these rupee yuppies were thirsting for all things Western (especially American). My host could not yet afford to travel abroad, but if he could his first stop would be New York. At the multiplex cinema at the Forum Mall every showing of every movie was sold out (including disappointing ones like this). Every American fast food outlet were packed to overflowing (KFC, Pizza Hut, Subway, and McDonalds (featuring the McVeggie)). In some cases it appeared that it did not matter if the product was American as long as it looked American. For example, at the Tommy Hilfiger store – a quintessential American store with an Americana theme – the young sales clerk was curious to know if the Tommy Hilfiger brand was sold in the United States. Moreso than Chennai, the young women in Bangalore are increasingly trading their saris for Wranglers. The result is that American goods and services are being sold to upwardly mobile Indians in overwhelming numbers. Their mobility is our opportunity.

But the result is also that many fungible American service jobs are quite clearly at risk to the competition from these young professionals. Their mobility is our risk. A day in Bangalore will underscore for any American service sector employee the danger of being replaceable. Woe to the fungible. As Tom Friedman put it, we no longer should be telling our kids to finish their dinner because there are people in India who are starving. We should be telling our kids to finish their homework because there are people in India who are starving for our jobs.

Well, actually we should be telling our children both, as my visits to the bonded laborers in the remote villages of Tamil Nadu and to the gilded laborers of Bangalore confirmed.

Ikenberry on Democracy and International Order

John Ikenberry has a great post over at America Abroad entitled “Democratic Enlargement versus Liberal Order.” I think it neatly contrasts the world views of conservatives and liberal internationalists (and by “liberal” I don’t mean “left wing”). I'll write on this more in the coming days. For now, here’s a few excerpts from Ikenberry's post (but the whole post is worth reading):

…Bush’s vision is distorted and incomplete. The big difference between Bush
and the great liberal internationalist presidents is that Bush wants to promote
democracy and freedom and Wilson, FDR, Truman, Kennedy, and Clinton wanted to build liberal order. More precisely, they believed that you can’t really have
one without the other – to spread democracy you must also deepen the liberal
democratic order.

The Bush – and neo-conservative – view seems to be that you can do democratic engagement without building liberal order. One reason seems to be that, in their view, the character of regimes matters more than the institutions, treaties, and other aspects of international community that sit atop and bind together democratic states. If all the states of the world are democratic, you don’t need a lot of international rules and institutions – you will get peace without a lot of international superstructure…

…Wilson’s view and that of the more "realist" liberal internationalist presidents – FDR, Truman, Kennedy, and Clinton – has been that democratic enlargement and liberal order must go together. One reason is that democracies share values and aspirations that can only be fully realized through a thriving liberal international order. Democratic "man" is a free individual and a citizen with civic sensibilities and responsibilities that cut across national borders. Secondly, and perhaps more importantly, liberal order is needed so as to generate the collective resources and cooperative efforts to sustain the long-term democratic enlargement agenda. Indeed, this is increasingly true: The "easy" cases of democratization have been achieved. After each wave of democratic enlargement, the remaining laggard states are increasingly tough cases – requiring the democratic world to concert their efforts. Democratic enlargement requires a "democratic village." Thirdly, the absence of an American commitment to liberal order – i.e. a commitment to multilateralism and rules-based relations – imposes too high a cost on the U.S. in terms of encouraging balancing, resistance, and free riding by other democracies -- and it undermines the legitimacy of the broader commitments to international and domestic liberalism.

Sunday, June 12, 2005

U.S. Gulf Allies Cited for Human Trafficking

On June 3, the United States issued its 2005 Trafficking in Persons Report and demoted from Tier 2 to Tier 3 some of our closest allies in the Gulf, including Saudi Arabia, Kuwait, Qatar, and United Arab Emirates. This opens these Gulf allies to U.S. sanctions if they do not improve their record in human trafficking.

For a useful discussion of the TIP report and its impact on Saudi-U.S. relations, see here. For excerpts from the report on U.S. efforts to combat human trafficking, see here. For excerpts from the report addressing Saudi Arabia, see here. On Saudi Arabia, the report concludes:

"The Government of Saudi Arabia does not comply with the minimum standards for the elimination of trafficking and is not making significant efforts to do so. Saudi Arabia has moved from Tier 2 to Tier 3 because of its lack of progress in anti-trafficking efforts, particularly its failure to protect victims and prosecute those guilty of involuntary servitude. . . . The government should consider adopting comprehensive anti-trafficking legislation that would punish traffickers, provide for the protection of victims, and facilitate prevention programs."

I suppose this report is not exactly what is to be expected for those who view the U.S. government as in "cahoots with the oil and armaments industries" and "murderously indifferent to the value of non-American life."

What Is Wrong With The U.S.?

While on the train to Bangalore this morning I read an especially bad op-ed piece in the Hindu on what is wrong with the United States. Money quote:

"After the invasion of Iraq, the collective punishment of Fallujah, the abuses of Guantanamo, Abu Ghraib and Bagram, the reckless insistence on the right to pollute the planet and the systematic asset-stripping of the developing world, people in other countries have every reason to look at the USA with fear and anger. Add on to that the current pre-eminence in Washington of right-wing Christian fundamentalists in cahoots with the oil and armaments industries, and no wonder the world is worried."

So let's see, the problem with the United States is that it is ruled by a Christian fundamentalist elite in partnership with a military-industrial complex that is regularly committing acts of torture, degrading the environment and systematically exploiting the Third World. Glad he cleared that up for the readers of India's national paper. I guess he forgot to mention that we imprison our political dissidents in gulags too.