13 Pages Posted: 6 Jun 2005
In Roper v. Simmons the Supreme Court relied heavily on foreign and international law to interpret the United States Constitution. Many leading proponents of internationalist interpretation point to the Declaration of Independence's language about paying a decent respect to the opinions of mankind as evidence that the nation's Founders would have approved of using foreign law. Indeed, shortly after the Roper, Justice Ginsburg said the case represented the greatest victory for those who argue the Declaration approves of giving legal weight to the opinions of mankind.
The oft-made argument that Declaration supports American judges looking to foreign law is based on lifting the relevant passage from its textual and historical context. In fact, the Declaration does not remotely suggest that Americans should follow or adopt the "opinions of mankind." To the contrary, it shows that we should follow our own opinions, even when they diverge from the dominant views of Europe. Indeed, throwing off the rule of a sovereign monarch contradicted the dominant opinion of mankind. Thus the Declaration takes the view that all we owe to other nations is to explain our actions to them.
Moreover, the Declaration was specifically drafted as an appeal for arms and money. The Founders understood that these would only be forthcoming if Britain's Continental enemies thought the Colonists were committed to the fight for the long haul. Thus the opinions in question are opinions about the likely perseverance of the Colonists, not the legality of their rebellion. And the mankind in question is France and Spain.
If the Declaration reveals anything about the relevance of foreign law to constitutional interpretation - which is unlikely, as it predated the Constitution - it suggests that the Founders' interest in the opinions of mankind did not involve their opinions on the legality of American actions. Any interest in foreign opinion also turned entirely on the ability and inclination of the foreign states to provide concrete support for America.
Of course, the Declaration of Independence itself does not dispose of the question of whether judges should follow foreign law. However, the cavalier misrepresentation of a basic document of the Founding by Justices of the Supreme Court and leading scholars may raise concerns about how faithfully or accurately they would interpret the more esoteric and broader universe of foreign legal materials.
Keywords: constitution, foreign law, international law, Declration of Independence
Suggested Citation: Suggested Citation
Kontorovich, Eugene, Disrespecting the 'Opinions of Mankind': International Law in Constitutional Interpretation. Green Bag, Vol. 8, p. 261, 2005. Available at SSRN: https://ssrn.com/abstract=734663