FRANK I. MICHELMAN
Twenty years ago, talk of American exceptionalism in the field of human rights would doubtless have been tinged, at least, with congratulation; these days, maybe not. Spoken today, the term probably insinuates a degree, at least, of insularity and smugness.1
Consider the movement dubbed “judicial globalization” by one of its chroniclers.2 Ever more widely and regularly, judiciaries in democracies abroad have been treating each other's judgments as required reading in the work of domestic or regional bill-of-rights adjudication. From this movement the American Supreme Court has stood noticeably aloof, thus earning itself a mildly pariah status, at least in globalist circles. In their daily work of applying the guarantees in our Constitution's Bill of Rights to contested cases, our judges, by and large, have proceeded with what has been called a “parochial” disregard for parallel human-rights interpretations occurrent elsewhere in the world.3 “Parochial” is not a term of endearment. (One might, after all, have spoken, more colorlessly, of “legal particularism.”)4
Assertions of various sorts of exceptionalist chiseling by the United States are in the air. Do Americans (Grenada? Iraq?) claim undeserved, special privileges to act unilaterally against human rights violations abroad? Do Americans (the International Criminal Court?) obnoxiously
1 But see Harold Hongju Koh, “Foreword: On American Exceptionalism,” Stanford Law
Review 55 (2003): 1479–1527, at 1480 (speaking of “the negative and the overlooked posi-
tive faces of American exceptionalism”).
2 See Anne-Marie Slaughter, “Judicial Globalization,” Virginia Journal of International
Law 40 (2000): 1103–24; Anne-Marie Slaughter, “A Global Community of Courts,” Har-
vard Journal of International Law 44 (2003) 191–219.
3 Slaughter, “Globalization,” supra note 2, at 1117–18; see Lorraine E. Weinrib, “Consti-
tutional Conceptions and Constitutional Comparativism,” in Defining the Field of Compar-
ative Constitutional Law, ed. Vicki C. Jackson and Mark Tushnet (Westport, CT: Praeger,
2002), 3–34, at 4 (“The constitutional jurisprudence of the United States has remained
remarkably untouched by the new comparative constitutionalism”).
4 See Sujit Choudhry, “Globalization in Search of Justification: Toward a Theory of Com-
parative Constitutional Interpretation,” Indiana Law Journal 74 (1999): 819–92, at 830.