Academic journal article
By Kersch, Ken I.
Albany Law Review , Vol. 69, No. 3
[W]hat could be more exciting for an academic, practitioner, or judge, than the "global" legal enterprise that is now upon us? Wordworth's words, written about the French Revolution, will, I hope, still ring true: "Bliss was it in that dawn to be alive/But to be young was very heaven."
United States Supreme Court Justice Stephen Breyer (1)
It is a commonplace amongst historians of the United States Supreme Court that, when it is considered over the long term, constitutional doctrine has been shaped in important ways by non-doctrinal currents of political and social thought. The Marshall Court, for instance, was suffused with the nationalist vision that characterized the Chief Justice's Federalist Party, of which he was a leading light. (2) During his tenure, Marshall's successor, Roger Taney, struck key Jacksonian themes. (3) In both cases, the outside influences on doctrinal development within the Court reflected the political and constitutional visions of the predominating political parties. But this need not be a matter of partisanship pure and simple. Perhaps the most famous instance of social thought suffusing the jurisprudence of the Court took place in the late nineteenth (and early twentieth) century, when the Court repeatedly sounded Darwininian themes, prompting Justice Holmes's famous protest that "the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." (4)
Since the "Constitutional Revolution" of 1937 (5), however, there has been relatively little discussion of the ideological visions that have informed the Court's jurisprudence. (6) This is particularly the case when those visions were broadly consonant with the imperatives of the New Deal/Great Society regime itself, and its attendant notions of progress. (7) While there have been a few scattered exceptions, the discussions of ideology that have given rise to career-making research agendas in the contemporary legal academy have focused on capitialism, racism, sexism, and heteronormativity--they have emerged, that is, from the liberal-left. For liberal legalists, the 1937 transition is understood as the breakthrough that removed the barriers of ideology from constitutional jurisprudence. (8) What came after 1937 was a pragmatic, "living constitutionalism," or a constitutionalism that took into account what, as a practical matter, was necessary, given changing times and circumstances. (9) It was, in other words, a constitutionalsm freed of the ideological fetters of a bygone political era. In many respects, this state of affairs has been a hold-over of the old New Deal liberal regime: liberals and leftists do not have ideologies, they see through them. (10) For this reason, legal scholars, most of whom see the world as partisans of the New Deal/Great Society political regime, as a group, are relatively slow to identify the currents of social and political thought (11)--viewed as social and political thought rather than, simpliciter, contributions to a scholarly literature--that are most likely to have profound effects on the future development of constitutional doctrine. Amongst these is the recent "globalist" turn by the Supreme Court in deciding domestic constitutional cases. (12)
To date, legal academics, whether criticizing or defending it, have treated this trend primarily as a question of interpretive theory. (13) "Originalists" like Justice Scalia oppose it because to look abroad in the way that has been done in recent Supreme Court decisions is to look to sources of law (whether binding or not) (14) that are not relevant to ascertaining the original meaning of the constitutional text. On the other hand, most defenders of the practice tend to follow Justice Stephen Breyer (in particular) by focusing on its "pragmatic" value--justices look abroad because, in doing so, they see how judges in other countries have gone about solving similar constitutional "problems." (15)
While a large and growing number of scholars have begun to address questions of international influences on the United States Supreme Court, including its burgeoning enthusiasm for citing foreign practices and precedents in reaching decisions involving traditionally domestic areas of constitutional law (such as federalism, gay rights, affirmative action, and the death penalty--as opposed to international trade and admiralty cases), I will argue here that the focus on recent trends in this area as an issue of interpretive theory, a focus natural to most law professors, has obscured a whole range of "diplomatic" justifications for the practice that are discussed openly, and indeed, garrulously, by the Court's justices themselves. …