Academic journal article Texas International Law Journal

Learning from the Foreigners: A Response to Justice Scalia's and Professor Levinson's Professional Moral Parochialism

Academic journal article Texas International Law Journal

Learning from the Foreigners: A Response to Justice Scalia's and Professor Levinson's Professional Moral Parochialism

Article excerpt


Assume that an American judge (or anyone else for that matter) is trying to determine whether some choice of an American governmental unit violates the U.S. Constitution because it violates some fundamental-fairness-related moral right the U.S. Constitution protects. My question is: Can such an individual learn anything that will help him perform this task from discussions of foreign countries' moral-rights commitments-say, from discussions in which foreign judges and/or their company engage when assessing whether a choice made by their own government that is identical or similar to the American governmental choice under review violates that foreign country's constitution because it violates a concrete moral right that the relevant foreign society is committed to securing that belongs to the same genus of concrete moral rights that the American governmental choice being scrutinized allegedly violated? Justice Scalia1 and Professor Levinson2 answer this question in the negative. Although they never explicitly delineate the argument that led them to this conclusion, they appear to believe that it follows from the following set of four premises:

(1) regardless of whether one can establish a set of universally-applicable, objectively-true "moral rights" from abstract moral reasoning,3 an alleged moral right cannot be relevant to the determination of the internally-right answer to any legal-rights question4 in the United States unless there is a sustained national consensus that our society is committed to this right, a consensus that can be said to exist only if over a significant period of time a substantial majority of relevant Americans would acknowledge their society's commitment to the right in question when asked to do so, say, in a series of Gallup-type polls;5

(2) the "moral rights" to which the United States and its individual members may be committed and that may form the basis of an American constitutional right are highly specific moral rights-for example, the right to engage in consensual homosexual sodomy6-that are not derived from some more abstract moral right-for example, the right of moral-rights holders to develop their own conceptions of the good and to lead lives that instantiate their respective conceptions of the good;

(3) the moral-rights commitments that can give rise to an American constitutional right can be both ad hoc and a matter of feeling rather than reason;7 and

(4) the fact that two or more American concrete moral-right consensi are inconsistent does not make the individual, inconsistent consensi in question any less legally forceful.8

On these assumptions, Scalia and Levinson seem to argue, we can learn nothing about American moral rights and American moral-rights-related constitutional rights from normative discussions related to foreign countries' moral-rights commitments or foreign countries' moral-rights-related constitutional-rights commitments. The internally-right answer to an American moral-right and moral-right-related constitutional-right question depends on the American consensus on the narrow right-question under consideration. If the foreign consensus on the foreign counterpart-issue is the same as ours on our domestic issue, that fact is irrelevant; our consensus is the one that counts. If the foreign consensus is different from ours, that fact is also irrelevant. We disagree. So what? Our consensus is the one that counts.

This response to Scalia and Levinson is divided into the following Parts. Part II explains why I disagree with the four premises from which Scalia and Levinson appear to believe their conclusion can be derived. Part III argues that-even on the Scalia-Levinson premises-efforts to answer American moral-rights-related constitutional-rights questions may be aided by discussions of foreign moral-rights commitments. Part IV explains the additional contributions that normative discussions of foreign moral-rights commitments will be able to make to American constitutional-law analysis if (as I believe) the ScaliaLevinson premises are wrong. …

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