January, 2004 -- Conservatives are up in arms. They are outraged (once again) by what the Supreme Court has been doing. In a case involving the death penalty, Justice Stephen Breyer referred to a decision by the supreme court of Zimbabwe that said it was inhumane to keep a prisoner on death row, year after year, awaiting execution. John Leo of U.S.

News & World Report asked with dripping irony: "We're getting our legal cues from Zimbabwe?" It was a cute retort. But it loses force if one reads Breyer as saying that even Zimbabwe does not keep prisoners lingering on death row for decades, as the United States does.

After the Supreme Court struck down Texas's law against homosexual sodomy, in Lawrence v. Texas, David A. Keene of the American Conservative Union complained that the decision had cited European laws regarding homosexuality but not Middle Eastern laws. Was Keene suggesting that Supreme Court justices weighing decisions on human rights should treat equally the laws of Western countries and the sharia?

Clearly, conservative criticism of foreign legal precedent has been misconceived. But does that mean Supreme Court justices are right to look abroad for their reasoning? The question is worth asking. Foreign ideas—mostly European ideas—are having an increasing influence on the American legal and political landscape, and we need to know whether it matters. Should we welcome this influence, as we welcome the vitality and fresh perspectives that certain immigrants bring to our economy? Or should we fight against this influence, as we fight against the tribalist and statist ideas that certain immigrants bring to our politics?

The Background

For more than a decade now, justices of the Supreme Court have been debating the propriety of looking abroad when interpreting terms set forth in the U.S. Constitution. In a 1988 case, the question was whether a state could execute a person who was under sixteen at the time of his offense. In a plurality opinion, Justice John Paul Stevens wrote that the state could not, that to do so would be "cruel and unusual punishment" of the sort prohibited by the Eighth Amendment. Justifying his view, Stevens wrote: "The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offence is consistent with the views that have been expressed…by other nations that share our Anglo-American heritage, and by the leading members of the Western European community."

In dissent, Justice Antonin Scalia rejected Stevens's method of appealing to foreign opinion. "The plurality's reliance upon Amnesty International's account of what it pronounces to be civilized standards of decency in other countries is totally inappropriate." he said.

In June 2003, the Supreme Court issued its decision in Lawrence v. Texas, striking down a law that prohibited homosexual sodomy. The decision by Justice Anthony Kennedy flatly overturned a Supreme Court ruling that was only seventeen years old (Bowers v. Hardwick), and, to justify his reversal, Kennedy spoke of "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Had Kennedy said no more than this, his decision would have aroused controversy but hardly at the level of magnitude that actually occurred; no one could deny the reality of the "emerging awareness" he pointed to, whatever one made of it. But Kennedy went on to buttress his observation about changing American attitudes by giving prominent place to an amicus brief that highlighted the laws of European countries regarding consensual homosexual behavior.

In dissent, Justice Scalia wrote: "The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is…meaningless dicta. Dangerous dicta, however, since [quoting Justice Clarence Thomas] 'this Court…should not impose foreign moods, fads, or fashions on America.'" The obvious rejoinder is that Justice Kennedy was not speaking of a foreign "mood, fad, or fashion," but of an intellectual understanding of liberty's essence. As Kennedy put it: "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."

Some Distinctions

In the October 2003 Navigator, David Mayer quoted this passage from Kennedy's Lawrence decision: "As the Constitution endures, persons in every generation invoke its principles in their own search for greater freedom." Mayer commented: "Although conservatives might dismiss this passage from Justice Kennedy's opinion as an illustration of the 'living Constitution' view they decry, they would miss the critical point: Justice Kennedy was referring to a rights provision….When applied to rights provisions, the idea of evolving constitutional standards that more perfectly protect individual freedom is not only consistent with the overall purpose of the Constitution, it is also, arguably, mandated by the Ninth Amendment."

So let us agree on this: If the Court is expanding government powers on its own, under some "living Constitution" doctrine, then it is wrong regardless of where it looks for inspiration. But what if it is expanding freedom? What if the Court is considering a new constitutional protection for personal liberty (as in the sodomy case) or for civil liberty (as in the death penalty case)? Where, then, may the justices look for guidance? Specifically, may they look to the thinking of foreign courts?

Eugene Volokh, a generally libertarian law professor at UCLA, pointed out on his blog that considering court decisions in another jurisdiction is part of the American legal tradition: "State courts that are interpreting the state's constitution, or developing the state's common law, are often influenced by other state courts' decisions. And historically that has also happened, though to a smaller extent, with regard to foreign courts as well."

But this sanction for looking abroad comes with a number of caveats, which Volokh mentions: "Naturally, one still can and should argue that judges shouldn't be influenced by particular foreign law in particular cases—for instance, when the domestic sources are clear, or when the foreign traditions are very different from domestic ones." It is this last caveat that most concerns me here, although I would say "foreign philosophies" rather than "foreign traditions."

Two Philosophies

Since the dawn of the Enlightenment, liberty in America has rested on the political philosophy of John Locke to a degree unequaled in any other country, even Great Britain. By contrast, liberty in continental Europe has rested on a political philosophy rooted in medieval Christendom, secularized by Jean-Jacques Rousseau, and radicalized by romanticism and socialism. Let us look at this contrast more closely.

According to Locke's political philosophy, each person has three purposes built into his nature: (1) to survive; (2) to survive by means of society; and (3) to promote that society by which he survives. Liberty is thus based on the attempt to live and to do this together, socially. That is what establishes the need for, and the limits to, freedom. Recall, in this regard, Ayn Rand 's standing-on-one-foot characterization of her philosophy. She described her "Politics" as "Capitalism." She did not say "Limited Government." And the reason, I suggest, is that she, like Locke, held that production and trade are what government and liberty are for. It is an extremely bourgeois concept of liberty. Each person's survival is an end in itself—but only to himself, not to others. It is from the collaborative pursuit of individual survival via production and trade that there arises a system of mutually respected rights.

One cannot attribute the Continental theory of liberty so directly to a single person, for it begins with the medieval view that each person must be free to perform his transcendent task of reaching Heaven and also his earthly task of fulfilling a niche in one of society's three divisions: those who fight, those who pray, those who labor. Under the influence of Rousseau, man's transcendent task became secularized as the realization of his natural, authentic self, while his mundane task became participation in an all-powerful society of equals. Under the influence of romanticism, authentic self-realization was increasingly identified with anti-bourgeois behavior—witness the honors paid to a long line of depraved authors, from the Marquis de Sade to Jean Genet. Under the influence of socialism, society became the vehicle for providing citizens with the wherewithal they needed for self-actualization.

Although the European idea of liberty has been influencing American elites for more than a century now, a substantial difference still exists between the U.S. and European understandings. For example, in Britain, a man holding a sign denouncing homosexuality was fined for expressing "insulting" sentiments in front of people who might be "distressed" by them. The right to an unquestioned authenticity trumped free speech.

Today, with varying degrees of self-awareness, our legal and academic leaders are making a strong push to see that the European understanding of liberty becomes dominant here. Peter J. Spiro, an authority on international law, recently urged in the prestigious Stanford Law Review (May 2003) that globalization "argues for the relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution's more complete subordination." And just a month after Lawrence, Justice Ruth Bader Ginsburg—the most overtly globalistic of the Supreme Court's justices—crowed that "our 'island' or 'lone ranger' mentality is beginning to change."


Those who believe in America's Enlightenment philosophy should not fight these internationalists with the simple-minded doctrine that Americans must not listen to foreigners. We should not erect an ideological Fortress America that keeps out European ideas simply because they are European. But we do need to man the ramparts of an ideological Fortress Americanism that keeps out ideas alien to the philosophy of liberty on which our country was founded. 

This article was originally published in the January-February 2004 issue of Navigator magazine, the Atlas Society precursor to The New Individualist.


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