Last week Justice Ginsburg gave another speech defending the Supreme Court’s selective and unprincipled resort to foreign law to redefine the meaning of provisions of our Constitution. Her speech—titled “‘A decent Respect to the Opinions of [Human]kind’: The Value of a Comparative Perspective in Constitutional Adjudication”—isn’t quite as awful as her identically titled speech from five years ago, which I critiqued in my NRO essay “Alien Justice.” But the heart of my critique fully applies:
What exactly does a “comparative perspective” in constitutional adjudication mean, and what is its value? Addressing a group of international lawyers, Ginsburg resorts to kindergarten talk — “we can learn from others,” “we can join hands with others,” we should “share our experience” — but never even attempts to explain how a foreign court’s decision on how a foreign law measures up to a foreign charter can or should have analytical value in construing our Constitution. She emphasizes that she does not regard foreign decisions as “controlling authorities.” Could those foreign decisions be the tipping factor in a particular case? Ginsburg doesn’t expressly say so, but she gives no reason why that couldn’t happen. Nor does she offer any principle to determine what weight they should have. In short, she has no response to Scalia’s criticism: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”
When Ginsburg’s position is clear, her understanding is muddled. Ginsburg points out that the Framers understood that the United States “would be bound by ‘the Law of Nations,’ today called international law.” But the Constitution’s conferral of power on Congress “[t]o define and punish . . . Offenses against the Law of Nations” makes clear that it is up to Congress, not judges, to determine which obligations under international law should apply domestically.
The central question is not, as Ginsburg’s straw-man argument would posit, whether it is ever okay for justices to cite foreign law. There are plainly many instances when foreign law is relevant to the issue at hand; when that is the case, it is of course proper to cite it. What Ginsburg does not (and evidently cannot) explain is when and how contemporary foreign laws or decisions are relevant to determining the meaning of provisions of the Constitution.
In a typically misguided house editorial, the New York Times applauds Ginsburg’s speech. Repeating Ginsburg’s straw-man argument, the Times condemns Ginsburg’s critics as “[n]ativis[ts]” and “legal isolationists.” But the Times, in invoking James Madision’s description of the “ideal legislator” (emphasis added) as someone who “ought not to be altogether ignorant of the law of nations,” completely misses the fundamental separation-of-powers point: It is entirely proper for legislators to look abroad “to get good ideas” for what to enact into law. It is a quite different matter for Supreme Court justices to resort to contemporary foreign law to redefine the meaning of constitutional provisions.