America's Unwritten Constitution: The Precedents and Principles We Live By (78 page)

Both of these understandings of America’s real, albeit unwritten, “constitution” have deep roots in Founding-era American discourse. Both understandings are also widespread among modern American lawyers, legal scholars, and judges. To these two conventional understandings of America’s actual unwritten “constitution,” this book has added a third thought: America’s unwritten “constitution” should also be understood to encompass the basic tools and techniques by which faithful interpreters tease out the substantive meaning of the written Constitution and unwritten rights and structures.

The main aim of this book has been to illustrate how these four elements of America’s Constitution—the terse text, unwritten higher-law principles, unwritten constitutive structures, and unwritten tools and techniques of constitutional interpretation—fit together.

DESPITE MY OPENING PROMISE
to present a panoramic picture of American constitutional law,
^*
I have not devoted sustained attention to foreign and international law; nor have I invited readers to give serious thought to how a new form of
world
constitutionalism, American style, might be imaginable in, say, 2121 or 2222. My excuse for this large lapse is that I have come to believe that the issues involved are too broad to be handled in one or two chapters. Serious analysis would probably require yet another book, and I am doubtful that I am the best person to write such a book.

That said, the reader deserves to know how I might begin to think about some of these issues. For starters, what role, if any, should foreign law and norms play in construing the American Constitution? A real but limited one, I think. Foreign law is of course relevant if we are deciding whether to amend our Constitution in order to be more like some other regime. Foreign law is also relevant if we want to understand certain empirical truths about the world—laws of X sort generally have effects Y and Z—that might bear on proper constitutional interpretation. But given that many foreign constitutions are so different from our own, international comparisons may be of limited empirical value. The same kind of law might empirically operate very differently in two regimes with profoundly divergent institutional structures, cultural traditions, party systems, and so on. Judges (and other constitutional interpreters) may often be better off looking at state constitutional experiences, which have played out within a basic model much closer to the federal one.

Beyond the domain of empirical prediction, international norms and ideals are key features of America’s unwritten Constitution to the extent they have in fact been widely embraced by the American people and have thereby woven themselves into the fabric of America’s lived experience or America’s symbols, or to the extent that these foreign ideals and norms have touched the conscience of Americans. For example, Martin Luther King Jr. borrowed openly from Mahatma Gandhi. Through King and his
movement, the non-American Gandhi—who himself had studied Americans such as Henry David Thoreau—became part of the American constitutional story.

Foreign norms and laws may also become
negative
symbols in the American constitutional conversation. Thus, one way to understand the 1942 case of
Skinner v. Oklahoma
, in which the Supreme Court struck down a state statute that called for the sterilization of certain convicted criminals, is to see the link between this statute and Hitler’s eugenics program, which served as a powerful symbol of precisely what modern America had come to repudiate when it declared war on the Nazis. In the famous (now infamous) 1927 case of
Buck v. Bell
, the Court had seemed to smile on eugenics, upholding the sterilization of a young woman who had committed no crime. But by 1942, the Court strained conventional doctrinal categories to invalidate a sterilization program targeted at certain felons. This newly voiced hostility to government sterilization came about not just because judges as a matter of individual conscience decided that Hitler’s ideas were evil and unconscionable, but also because the American people as a whole had sharply turned against Hitler and had come to react to his twisted vision with horror. Hitler in effect became another powerful negative symbol, another
Dred Scott.
¹

Finally, to the extent that America’s Constitution aspires to set an enlightened example for the rest of the world, the Supreme Court may in various situations properly ask itself whether the practices of certain individual state governments are likely to bring the nation as a whole into international disrepute. However, if Congress or the president has already addressed this issue, the Court should hesitate to upset these determinations made by the branches of the federal government tasked with primary responsibility for conducting foreign affairs and protecting the good name of the United States abroad.

Those branches, in turn, would do well to heed Madison/Publius’s
Federalist
No. 63, which identified two reasons for paying attention to “the judgment of other nations.” First, national hubris ill serves America’s image. Regardless of “the merits of any particular plan or measure,” American actions “should appear to other nations as the offspring of a wise and honorable policy.” Second, no matter how wise or how strong America
might become, it should always be open to the teachings of enlightened humankind beyond our shores: “[I]n doubtful cases, particularly where the national councils may be warped by some strong passion, or momentary interest, the presumed or known opinion of the impartial world, may be the best guide that can be followed.”

PERHAPS THE MOST DIFFICULT AND INTERESTING
questions of all concern not the role of global law in reshaping America’s Constitution, but rather the reverse: How might America’s Constitution, written and unwritten, serve as a model for the world? America’s Constitution was originally designed as a kind of World Constitution—a Constitution, that is, for the New World, separated by vast oceans from the Old. But at the dawn of a new millennium it is clear that planet earth is one world, and that global solutions are needed to solve genuinely global problems—climate change, famines, genocide, pandemic viruses, international terrorism, trade imbalances, nuclear proliferation, and on and on.

Many of the existing world institutions are not fully adequate to solve these problems—and they are inadequate in ways that call to mind the similar inadequacies of the Articles of Confederation to solve the problems of the New World in the 1780s. The United States of 1785 looked rather like today’s United Nations, whose General Assembly bears an uncanny resemblance to the Confederation Congress: one-state, one-vote, in a body that declares a lot and does much less, where member states sometimes obey and sometimes don’t. The Founders’ solution was to create a strong community of New World democracies. In today’s world, there is no true international counterpart of any importance. The UN—in both the General Assembly and the Security Council—seats thuggish regimes alongside admirable ones. The North Atlantic Treaty Organization (NATO) focuses overwhelmingly on military issues and excludes non-European nations. The European Union is likewise just a regional body. The Group of Twenty (G-20) features the world’s economic powerhouses, whether or not they are democratic. The Organization of Petroleum Exporting Countries (OPEC) is only for the oil-rich, the Arab League for Arabs, and so on.

Perhaps what is needed is a new international group that would start out quite informally and gradually gain legitimacy and authority as a powerful
moral force in the world—a genuinely international community of democracies encompassing rich and poor nations, North and South, East and West. This organization would include the United States, of course, but also India and Costa Rica, Old Europe and New Europe—but only the world’s truly democratic countries. In effect, this organization would emulate the American Constitution’s “sleeping giant,” the republican-government clause, which requires individual states in the Union to meet minimum standards of democratic decency—free speech, fair votes, respect for minorities, and so on.

Or at least, that is my current thinking on the matter. My specific reform ideas are highly tentative, and in the spirit of
The Federalist
No. 63 I welcome enlightenment from abroad.

The best ideas may well come from the young. Madison and Hamilton were both in their mid-thirties when they composed the lion’s share of
The Federalist
essays championing world government for the New World. Whereas Publius was a joint product of three men (John Jay rounded out the trio), today’s technology makes it possible for many minds across the planet to collaborate. If the blessings of liberty are to be secured for posterity—not just for Americans but for all God’s children—young visionaries must speak up.

Publius II, where are you? The world awaits your proposals.

_____________________

^*
The various hypotheticals and case studies in this book have, by design, been drawn from a broad cross-section of American constitutional law—at times involving advanced topics that have been hived off from introductory constitutional-law courses into more specialized classes on criminal procedure, civil procedure, federal jurisdiction, legislation, administrative law, election law, treaty law, remedies, property, and so on.