Balkinization: "Exceptionalism" or "parochialism"

"Exceptionalism" or "parochialism"

Sandy Levinson

Adam Liptak has just posted an article on the declining influence of the U.S. Supreme Court in the rest of the world. One of the issues, of course, is the refusal of some members of the Court to consider foreign law themselves. One of the persons quoted is Eric Posner, a law professor at the University of Chicago:

“We are used to encouraging other countries to adopt American constitutional orms," he wrote in an essay last month, “but we have never accepted the idea that we hould adopt theirs.” “It’s American exceptionalism,” Professor Posner added in an interview. “The view going back 200 years is that we’ve figured it out and people should follow our lead.”

Prof. Posner may be correct descriptively. And those who object to looking at foreign materials to help interpret the US Constitution certainly have a real argument with regard to the foundation of the Constitution in the popular sovereignty of "We the People." But consider the further implication of Posner's comment in the light of someone like myself who wonders about the adequacy of the US Constitution for us today. My own criticisms of the Constitution have almost literally nothing to do with "interpretation." For better or worse, unlike my beloved friend Jack Balkin, I am becoming less and less interested in the debates over how best to interpret the Constitution, precisely because the parts of the Constitution I am most interested in raise no real interpretive dilemmas and never generate any litigation, let alone Supreme Court decisions.

So perhaps we should consider the fact that almost no countries writing Constitutions in the "current era" (post 1970) have "followed the American lead" in terms of basic constitutional design. There is an almost unanimous "revealed preference" (a term that Prof. Posner should appreciate) around the world that the United States Constitution is not worth buying, unlike, say, some combination of the French, German, and Spanish constitutions. (The fact that almost all constitutions include bills of rights is beside the point; the US Constitution might at one timem been an inspiration on that score, but contemporary drafters are far more likely to look at the European Convention of Human Rights, the Canadaian Charter of Liberties, etc., than our own "Bill of Rights.")

One moral I take from this, of course, is that these countries are basically correct, and that we indeed have much we could learn, NOT necessarily by reading the decisions of other courts, though that could conceivably be both interesting and illuminating, but, rather, through looking at the systems other countries have adopted and trying to determine their relative success and failure compared to our own.

"American exceptionalism" has really become synonymous with boorish provincialism, which not only leads to increasing hostility to the US around the world, but, even more to the point, leaves us mired in smug satisfaction, especially on "Constitution Day," that we really have a Constitution we ought to mindlessly venerate instead of one that we might actually analyze and even make better than it is now.

I note for the record that the University of Chicago Law School has recently made the excellent appointment of Tom Ginsburg, a wonderful political scientist/lawyer and student of comparative constitutionalism. I assume that Prof. Posner approves of this appointment and, therefore, that we should read him only as describing a lamentable aspect of American political culture and not necessarily as endorsing it.

Posted 4:21 PM by Sandy Levinson [link]

Comments:

One moral I take from this, of course, is that these countries are basically correct, and that we indeed have much we could learn, NOT necessarily by reading the decisions of other courts, though that could conceivably be both interesting and illuminating, but, rather, through looking at the systems other countries have adopted and trying to determine their relative success and failure compared to our own.

With the obvious exception of pre-revolutionary English law, unrelated foreign law provides no legitimate basis for interpreting our Constitution. This has nothing to do with American exceptionalism. Rather, the Constitution is restricted to its text for the most part and Anglo American legal traditions for the remainder.

Interpretation aside, I agree with Professor Levinson that it would be salutary for the United States to compare its Republic to the governments of other countries to determine how well the Republic is operating compared to our competitors.

I know I thank Heaven I am an American whenever I read about the latest Frankenstein bureaucratic monstrosity of a Constitution the EU is attempting to foist upon its citizens only to have it rejected again when it is put to a vote. It gives me a renewed appreciation of the remarkable job our Founders accomplished in a much shorter period of time.

Then again, maybe I am just being boorishly provincial. ;^)

# posted by

Bart DePalma : 5:17 PM

Funny, I just sat in on a talk with Justice Breyer a few hours ago discussing the very subject.

His view was that there are many cases that arrive in Fed Courts in the US that cannot be decided properly without taking into account some form of foreign law.

Moreover, he felt that study of continental European law should be a staple offering at US law schools.

if only continental European schools would do the same. Unfortunately, having suffered their instruction first hand, I can say that the European schools have a long way to go.

# posted by

Unknown : 5:22 PM

I know I thank Heaven I am an American whenever I read about the latest Frankenstein bureaucratic monstrosity of a Constitution the EU is attempting to foist upon its citizens only to have it rejected again when it is put to a vote. It gives me a renewed appreciation of the remarkable job our Founders accomplished in a much shorter period of time.

Then again, maybe I am just being boorishly provincial. ;^)

no. just ignorant. Because if you think for a second that the ratification of the new EU treaty is even remotely close to that of the US Constitution then you are fooling yourself.

There were no general referendums (and a significant part of the population could not even vote, e.g. blacks and women). If you look at each time the new EU Treaty (it's not a constitution) was scuttled, it was by general referendum.

# posted by

Unknown : 5:34 PM

Bob:

You are engaging in semantics.

The "Treaty establishing a Constitution for Europe" was indeed offering a constitution or its equivalent, all 470+ pages of that Frankenstein bureaucratic monstrosity, as did the only slightly less monstrous "Treaty of Lisbon."

It is true that our Constitution was approved by the People's state legislatures rather than by popular vote. However, the Constitution was published and thoroughly debated amongst the People prior to those votes. State legislatures of that day only represented the equivalent of a modern municipal population and were very close to their constituents. There is no historical evidence that a popular vote (even one with a full franchise) would have differed in any significant way from the ratification by the legislatures.

Until I linked to the Treaty establishing a Constitution for Europe and took a another look at it, I had forgotten what a complete abortion that draft Constitution was. It made the Soviet constitution appear understandable. It would not have passed a single vote in the new United States.

In the near future, our Founders have very little to fear being upstaged by the EU.

# posted by

Bart DePalma : 6:24 PM

With the obvious exception of pre-revolutionary English law, unrelated foreign law provides no legitimate basis for interpreting our Constitution.

Yippee!!! Can we now dispense with the lies of such as the RW Republicans, David Barton, and sundry other revisionists, say that the Ten Commadments have nothing to do with the founding and the fundamental laws of the country, and take them off the walls of court houses, public schools, etc.?

Cheers,

# posted by

Arne Langsetmo : 6:25 PM

Rather, the Constitution is restricted to its text for the most part and Anglo American legal traditions for the remainder.

Where'd all those funny French-looking words come from?

Cheers,

# posted by

Arne Langsetmo : 6:27 PM

I know when you say that you prefer the German or French Constitutions, you're primarily talking about matters of governmental structure, but what do you think of the much greater perspicuity of the Basic Law compared to our own Constitution? (For example, their equivalent of our equal protection clause mentions no less than ten classes for which there can be no favor or disfavor; our equal protection clause, of course, mentions no particular classes. Their equivalent of our First Amendment specifically mentions various means of protected speech - speech, writing, pictures, broadcast, films - ours, famously, does not.) Is this a good thing? Or is a nation better served by vaguer, and hence more adaptable, protections of civil liberties?

# posted by

Asher : 6:30 PM

My honest answer to Tray's question (and I try to answer all questions honestly) is that I'm really not sure where I stand with regard to the different formulation of rights guarantees in many foreign systems as against the brief and categorical protections of our bill of rights. When I teach constitutional design, I ask students to discuss the merits of, say, the US First Amendment (taking into account that one cannot possibly understand contemprary legal doctrine simply by reading its language) as against the European Convention or the Canadian Charter, which explicitly allow for derogation of rights in order to protect democratic values and the like. I prefer certain American doctrines to those found in Europe, but I doubt seriously that it has much to do with the language of the texts, as against the very different political cultures. (One should never underestimate the importance of the libertarian strain in American political thought.)

Tray is certainly right that I'm primarily interested in structures these days, rather than rights guarantees, which I tend to regard as less important precisely because they are more easily subject to "intepretation."

As for Justice Breyer's views, I agree with him, obviously, that American legal education should be less parochial. But, from my perspective, the answer isn't simply greater awareness of, say, decisionsn of foreign courts. That is just to continue the juri-centric obsession of American law schools. I want American law students to be aware, for example, of the operation of different bicameral systems, of different veto systems in presidential countries, different ways of organizing judiciaries, etc. I don't know how important Justice Breyer believes such education to be.

# posted by

Sandy Levinson : 9:56 PM

Personally, I really don't care whether foreign governments choose to use our Constitution as a model or not. But anyone who thinks that "American Exceptionalism" is "boorish parochialism" ought to take some time to watch this video. There is a message there that someone seem to have forgotten.

# posted by

Unknown : 10:06 PM

That new Constitutions don't follow our lead any longer is no surprise. Most drafters don't think that the times can tolerate the checks & balances, separation of powers, federalism gridlock that seems to be ours.

That the torch of individual rights has passed to the Canadian Supreme Court and to others should not surprise either. What is exceptional about the US in a positive sense is that it fundamentally started the development of legally enforceable human and civil rights. That our country has turned back and is engaged in slicing and dicing away those rights does not make us very attractive to others who respect the best, not the worst, of US exceptionalism.

Finally, the decline in quality of the product of the Supreme Court, just in terms of its craftsmanship also puts off others.

# posted by

Mike Zimmer : 10:58 PM

I prefer certain American doctrines to those found in Europe, but I doubt seriously that it has much to do with the language of the texts, as against the very different political cultures.

Well of course the content of the different rights guarantees is interesting too, but there's a lot to be said for a constitution that tells you, at least in broad terms, which classifications are suspect instead of making courts take a wild guess or appeal as Balkin would have them do to our contemporary understandings of equality. Even the Voting Rights Act (which isn't a constitutional amendment but might as well be) is hopelessly vague. What kind of tautologic nonsense is "diminishing the ability of any citizens of the United States on account of race or color... to elect their preferred candidates of choice"? (That's from the '06 reauthorization.) My suspicion is that the reason Congress tends to settle on such vague language is that by doing so, both sides of a debate can say and even think they won. That's the problem with original intent or original expected application - just because you and I agree on consensus language doesn't mean we share anything like the same intent.

# posted by

Asher : 1:17 AM

I doubt our politicians are actually urging, at least privately, other nations to emulate our constitution. After all, the Constitution is essentially based on a belief that politicians are not to be trusted, and must be closely restrained in order to safeguard the public.

Is that a position you expect politicians to agree with? Utterly independent of whether or not it's true?

Similarly, our jury-centric legal system is based on a distrust of lawyers and officers of the court; Is it so surprising that foreigners talk to prominent members of our judiciary, who have labored mightily to convert jurors into the proverbial mushrooms, and don't end up adopting the jury system?

We have a form of government that chaffs those who run it, they do NOT promote it, even if it does work.

# posted by

Brett : 7:00 AM

Interesting comments:

1. Firstly, an awful lot of civil disputes these days are "cross border" in the sense that sense that the parties to the litigation may not both be resident in the same jurisdiction. In our Commercial, Mercantile and Admiralty Courts some 50% of the litigants are non resident and in 30% or so of the cases, both litigants are non resident. In other words, the English forum is to some extent a jurisdiction of choice. SDNY is another such so that in, for example shipping cases a good 60% of the standard forms used for bills of lading or charterparties, there will be a a choice of law and a choice of jurisdiction clause and many times also an arbitration clause. This is also true for many insurance/reinsurance disputes.

2. Since the Courts are often construing the same law under the terms of international conventions (particularly in relation to carriage of goods), it makes obvious sense for Courts to look at what other Courts have said about the same issue - so, for example, Lloyds Law Reports, used particularly in in the shipping and international trade area, report the important decisions of all Courts - English/Canadian/US/French as they come out.

3. Constitutional interpretation is different. I was interested to see that Bart refers to "Anglo-Norman legal traditions" - well that encompasses a lot of jurisdictions - there are 53 states in the Commonwealth plus the USA (early breakaway).

The English Courts do still cite SCOTUS decisions - but on human rights issues generally only from times prior to the development of the "originalist heresy".

Frankly, we do not much care what the Founding Fathers may have thought they were doing - even if there were a satisfactory means of ascertaining that intent (which I question) - so for us it is not a permissible means of interpretation but more properly, as a Canadian Judge put it, a "quaint form of ancestor-worship" designed by the extreme right as a means of restricting the breadth of the guarantees.

4. As to the jury system, it is actually being more and more adopted in civil law countries for serious criminal cases. France, Italy and Spain all have juries for such cases these days.

5. But most jurisdictions only rarely have juries in civil cases - and looking at the US system, I'm jolly pleased about that.

# posted by

Mourad : 9:30 AM

"Juri-centric" in my vocabulary means "court-centered," not "jury centered." I assure you that American law professors as a group are not remotely "jury-centric" even as they are almost pathologically obsessed with courts.

# posted by

Sandy Levinson : 10:31 AM

Mike Zimmer said:

"What is exceptional about the US in a positive sense is that it fundamentally started the development of legally enforceable human and civil rights."

Absolutely not so. Habeas Corpus and the other prerogative remedies were well established in Britain well before US independence. Our Bill of Rights antedates your Bill of Rights - although the fathers borrowed much of the wording. We abolished slavery sooner - having however had the shame of exporting it to you.

Perhaps the difference is that we have kept on developing human rights while yours seem now to be constrained by the interpretation some place on your Constitution.

# posted by

Mourad : 11:45 AM

""Juri-centric" in my vocabulary means "court-centered," not "jury centered.""

Hm, you know, that could be why I didn't spell it "juri-centric". ;)

# posted by

Brett : 5:54 PM

In the early 1990s, when ANC jurists were drafting South Africa's new, democratic Constitution, Albie Sachs (one of the drafters, and now a Constitutional Court justice) told us that they were looking to international human rights conventions as well as four foreign constitutions: those of Canada, Germany, India and the United States.

Having studied and practised constitutional law in Canada, I would say that the Times article got it about right -- there are probably two main reasons that foreign courts don't cite US constitutional decisions as often as they used to: (1) other, newer constitutional courts and international tribunals are building up their own bodies of human rights jurisprudence, and (2) on most human rights issues, foreign and international judges think the US has got it wrong. My anecdotal sense is that, in Canada, US constitutional decisions on issues like gender equality, torture, and the death penalty are more often cited as anti-canonical examples of what our Constitution does not mean.

We (non-Americans) tend to look to US and other constitutions to see what works well for others and might work for us, and also to learn from others' mistakes. That's why, say, equality provisions in modern constitutions tend to track the language and structure of Art. 2 of the UDHR rather than of clause 1 of the Fourteenth Amendment.

Foreign judges interpreting late twentieth-century constitutions are also more likely than American judges to remember that their constitutions were hammered out through compromise and horse-trading among politicians, and so are unlikely to succumb to the romantic (or fundamentalist) notion that the sacred text emerged full-blown from the sainted foreheads of its framers. Or that the framers shared any common intention at all.

By the way, the bill of rights portion of the Canadian Constitution is called the "Canadian Charter of Rights and Freedoms", not "Liberties."

# posted by

Kim Buchanan : 3:03 PM

# posted by

Unknown : 1:20 PM