“A Decent Respect to the
Opinions of Mankind…”
Selected Speeches
by Justices of the U.S.
Supreme Court on Foreign and
International Law
Edited by
Christopher J. Borgen
Under the Auspices of
the Judicial Outreach Program of
The American Society of International Law
The American Society of International Law
Washington, DC
Published by
The American Society of International Law
2223 Massachusetts Avenue, NW
Washington, DC 20008
USA
www.asil.org
Phone: +1 (202) 939-6000
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ISBN: 0-9729423-7-8
ISSN: 1057-0551
©2007 The American Society of International Law
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Table of Contents
About the Editor ............................................... ….....x
About the ASIL………….………………………….vii
Acknowledgements………………..……………… . ix
Editor’s Note..……………………………………… xi
Foreword………………………………………….. xiii
Chief Justice William Howard Taft,
1922 Address…........................................................... 1
Chief Justice Charles Evans Hughes,
1931 Address……………………………………....... 9
Justice Owen J. Roberts,
1943 Address…………………………………......... 17
Justice Robert H. Jackson,
1945 Address……..................................................... 27
Justice Robert H. Jackson,
1949 Address…………………………………..…... 43
Justice Robert H. Jackson,
1952 Address………………………………………. 57
Justice Harry A. Blackmun,
1994 Address….………………………………….…73
iii
Justice Sandra Day O’Connor,
2002 Address............................................................. 85
Justice Stephen G. Breyer,
2003 Address…………………………………..…... 99
Justice Antonin G. Scalia,
2004 Address …………………………..….……... 109
Justice Ruth Bader Ginsburg,
2005 Address……………..………………………. 125
iv
About the Editor
Christopher J. Borgen is an Associate Professor of
Law at St. John’s University School of Law in New
York City and was formerly the Director of Research
and Outreach of the American Society of International
Law. He is the co-founder of the Opinio Juris weblog,
www.opiniojuris.org.
v
About the ASIL
The American Society of International Law (ASIL) is
a nonpartisan membership organization committed to the
study and use of law in international affairs. Organized
in 1906, the ASIL is a tax-exempt, non-profit corporation
headquartered in Tillar House on Sheridan Circle in
Washington, DC.
For nearly a century, the ASIL has served as a
meeting place and research center for scholars, officials,
practicing lawyers, judges, policy-makers, students, and
others interested in the use and development of
international law and institutions in international
relations. Outreach to the public on general issues of
international law is a major goal of the ASIL. As a
nonpartisan association, the ASIL is open to all points of
view in its endeavors. The ASIL holds its Annual
Meeting each spring, and sponsors other meetings both
in the United States and abroad. The ASIL publishes a
record of the Annual Meeting in its Proceedings, and
disseminates reports and records of sponsored meetings
through other ASIL publications. Society publications
include the American Journal of International Law,
International Legal Materials, the ASIL Newsletter, the
ASIL occasional paper series, Studies in Transnational
Legal Policy, and books published under ASIL auspices,
in addition to award-winning electronic publications.
The ASIL draws its 4000 members from nearly 100
countries. Membership is open to all – lawyers and nonlawyers regardless of nationality – who are interested in
the rule of law in world affairs. For information on the
ASIL and its activities, please visit the ASIL Web site at
<http://www.asil.org>.
vii
Acknowledgements
This publication would not have been possible
without the dedication and diligence of ASIL Legal
Analyst Teresa Bailey. Teresa’s careful review of the
content and her skillful management of this project, in
coordination with Andrew Solomon, ASIL’s Director of
Programs, were of immeasurable value. Scott Lyons,
ASIL’s Deputy Director of Programs, was responsible
for final line editing and bringing this project to
publication. In addition, ASIL Research Intern Lindsey
Randall provided significant technical and administrative
support in making this project a success.
My colleagues John Barrett and Brian Tamanaha had
suggestions and insights that have only helped this
compilation. I also benefited greatly from the generosity
of David Bederman and Rick Kirgis, both of whom
shared drafts of their projects concerning, respectively,
the history of scholarship at the American Journal of
International Law and the history of the first hundred
years of the ASIL.
And I especially thank my research assistants, Teresa
Kominos, Francesca Liquori, Jake Schindelheim, and
Wendy Whei-Jai Wang for their superb research and
fact-checking under tight deadlines.
Any mistakes are solely my own.
Christopher J. Borgen
ix
Editor’s Note
The texts of the speeches in this collection are
unaltered from their original publication. If the author of
the speech had any reference notes, they are included
here as “lettered” endnotes. Most of the speeches also
include numbered footnotes that have been added for this
collection. These footnotes are meant to provide
background information or context for allusions that may
be unclear.
While this slim volume compiles selected addresses
by Supreme Court Justices at the ASIL Annual Meeting,
it does not include every such instance where a current
or former Justice spoke at an ASIL function. For
example, Charles Evans Hughes’ numerous speeches as
President of the ASIL have not been included as he was
speaking as ASIL President, not as a Justice.
xi
Foreword:
The Nation of Laws and
the Law of Nations
By Christopher J. Borgen
Since its inception, the American Society of
International Law (ASIL) has encouraged a discussion
concerning America and its relation to international law.
This volume collects selected speeches from the history
of that dialogue, bringing together major addresses by
Justices of the Supreme Court from Annual Meetings of
the ASIL. Although this view is relatively narrow, it is
nonetheless informative as to the experiences and issues
that played a part in shaping the perceptions of
international law in the American judiciary.
This collection attempts to give a sense of the
substance and evolution of the ongoing encounter
between the “Nation of Laws” and the “Law of Nations,”
as seen by judges from the highest U.S. court. The
views of the Justices are framed by their experiences and
by the concerns of the day. Each speech evokes a
particular point in American history—the inter-War
period, the turning of the tide of the Second World War,
the dawn of the Cold War, and so on—yet we can
consider whether this series of points actually implies a
particular trajectory to how the views of the American
judiciary have evolved.
An oft-repeated analysis of the history of
international law in U.S. courts is that judges from the
eighteenth and nineteenth centuries tended to see
international law and U.S. law as part of a single
integrated system, where more recent judges view
international law and U.S. law as two distinct systems.
While this may be accurate as a matter of describing
xiii
xiv
Foreword
judicial attitudes, it does little to explain why this
attitudinal shift took place. Although the speeches
collected here do not provide a final answer, they do give
us a place to start our inquiry and they suggest some
possibilities as to why this shift occurred. The reasons
may have less to do with changing perceptions of law
itself than with considerations of America’s place in a
globalizing, interdependent, world.
Looking at the speeches thematically, one can group
them into four periods. The first group, including the
addresses from Chief Justices Taft and Hughes and
Justice Owen Roberts, span from the inter-War years
into World War II. Their comments were often
concerned with the role that law may play in the
resolution of disputes among states. There follows a
triptych of speeches by Justice Jackson between 1945
and 1952. Justice Jackson also mentioned the peaceful
resolution of disputes but, framed by his experiences in
Nuremberg, he began to look towards questions of
individual liability and culpability and the relationship
between international law and the individual. There then
follows a long gap, until Justice Blackmun addresses the
Annual Meeting in 1994. His speech, as well as Justice
O’Connor’s in 2002, shift from law’s role in war and
peace to the Supreme Court’s practice in interpreting and
applying international law. And, most recently, Justices
Breyer, Scalia, and Ginsburg in three successive years
have a conversation on the citation of foreign law in
American legal opinions.
Each of these speeches was a product of its times and
responded primarily to the concerns of the day.
Nonetheless, it is perhaps telling how the dominant
issues shifted over the course of the century and how, in
broad lines, these speeches sketch how America’s
perception of international law has changed.
Selected Speeches
xv
Consider the three early speeches. In the shadow of
the “Great War” and on the road to the Second World
War, law was portrayed as a means to make peace
among nations less fragile and more durable. These
addresses span from the immediate aftermath of World
War I to the point when the tide is turning in favor of the
Allies in World War II.
As David Bederman
summarized in his review of the century of scholarship
in the American Journal of International Law: “[t]he
interwar period (1922 – 1939) features the economic
paradox of the 1920’s boom and the following Great
Depression, and America’s political disengagement from
the international community culminating in repeated
rejections of involvement in such international
institutions as the Permanent Court of International
Justice (PCIJ) and general isolationism.” 1 The speeches
of this period run from optimism to gritty determination
and back again.
The first address of this period, given by Chief
Justice Taft in 1922, has a tone befitting the Roaring
Twenties. About as lighthearted as a speech on
international law can get, Taft characterized the Supreme
Court as an international tribunal—and also mentioned
his hope for a similar such tribunal on a global scale. He
said that
1
David Bederman, Appraising a Century of Scholarship in the
American Journal of International Law, 100 AM. J. INT’L L. 1, 5
(2006).
xvi
Foreword
I know that [James Brown Scott] 2 regards the
institution of which I have now the honor—
undeserved honor—of being the head, as exhibit A in
international law. If I may judge of the volumes of
our decisions that he has put upon the poor students
of international law, I should think that our court
would be regarded with a great deal of concern by
those who are to study the subject. He draws much
from our opinions, as evidence of what can be done
in the world, if you will only have a Supreme Court
of the world. We do administer international law, and
we have every little while an example of the
foresight—I hope it may be called—of our ancestors
in making provisions for such an international
tribunal within the Constitution. The Articles of
Confederation first gave us the idea, and it was
followed in the Constitution. 3
The promise of international dispute resolution—and
the role of the U.S. in defining such a mechanism—
would be a motif in addresses ranging from Justice
Owen Roberts’s world federalism to Justice Jackson’s
discussions of Nuremberg.
Taft went on to discuss instances of the states of the
United States resolving disputes that they had with each
other before the Supreme Court. While this may not be
the first example that comes to mind for a modern
audience when they think of the Supreme Court and
international law, it was the central image of Taft’s
2
James Brown Scott, first editor-in-chief of the AMERICAN JOURNAL
LAW. See note b to the Address of Chief Justice
William Taft. See also Bederman, supra note 1, at 2.
OF INTERNATIONAL
3
Address by Chief Justice William Howard Taft infra p. 3.
Selected Speeches
xvii
speech. Then, looking outwards from the United States,
he concluded:
Now we have a court in the League of Nations. It is a
great institution. It is an institution that I doubt not
will make much for the benefit of the world… It is
established on broad principles… That court is an
American invention and it derives its strength from
American tradition, and I sincerely hope that we are
working towards it. 4
This hopeful tone is in sharp contrast to the rejection
of the League of Nations by the U.S. in 1920.
Internationalist aspirations in the U.S. then refocused
onto the Permanent Court of International Justice (PCIJ).
As a state did not have to be a member of the League in
order to join the PCIJ, international dispute resolution
still seemed quite possible.
Grander designs of
international organization seemed unlikely, however,
given the disinterest—if not hostility—of many in the
U.S. towards the broader project. This was reflected by
a shift in scholarship to a discussion and critique of the
different proposals for the U.S. to fully join the PCIJ,
“creat[ing] a sophisticated literature on the advantages,
and
drawbacks,
of
international
adjudicatory
5
mechanisms.”
It is in light of the rejection of the League but the
ongoing debate over U.S. involvement in the PCIJ, that
4
In 1922 the Permanent Court of International Justice (PCIJ) was in
the infancy of its short life. The U.S. was involved with the
construction of the Court and the ASIL’s John Bassett Moore was
the first U.S. judge on the Court.
5
Bederman, supra note 1, at 12.
xviii
Foreword
one must read the remarks of Chief Justice Charles
Evans Hughes from 1931. The address was at a gala
celebration marking the ASIL’s Twenty-Fifth
Anniversary that included twenty-six heads of
diplomatic missions and members of the press. 6
Although the immediate cause of the speech was a
celebration, there was little cause for rejoicing—the
Great Depression had begun and the PCIJ’s protocols
were mired in the Senate—and a substantial portion of
the Annual Meeting was devoted to discussing the future
(or lack thereof) of the PCIJ. 7 Hughes’s tone echoed his
time. Looking backward as much as he was looking
forward, he said that “the great interrogation as we face
the uncertainties of the future is—Which will be
triumphant, lust of power, an imperious chauvinism,
class consciousness, or a dominating sense of justice
which rides in the whirlwind and directs the storm?” 8
Attempts at codifying international law, such as the
League of Nations Codification Conference of 1930, had
been inconclusive at best. The League itself was in
jeopardy. And so, he explained, “[i]nstead of attempting
to record the progress of international law, I should
prefer to dwell on the progress of international
lawyers.” 9 International law was no longer a specific
thing to be built, “an impossible ideal in the certainty of
law.” 10 To the contrary, “[i]f we consider the content of
6
FREDERIC L. KIRGIS, THE AMERICAN SOCIETY OF INTERNATIONAL
LAW’S FIRST CENTURY 137 (2006).
7
Id. at 136.
8
Address by Chief Justice Charles Evans Hughes infra p. 11.
9
Id.
10
Id. at 14.
Selected Speeches
xix
international law, as a body of rules which states feel
themselves under obligation to observe, we may be
disappointed in both the extent and the rate of
development.” 11 But if we focus on the work—the
process—therein we may find renewed hope.
Describing the increased study of international law in
law schools, the production of scholarship, and other
aspects of the work of international lawyers, Hughes
explained:
All this activity holds the greatest promise. It will
yield results in lawyers, if not in law. And I believe
that out of this earnest study and comparison of
opinions, and, in particular, out of the serious
endeavor to understand intimately and correctly the
conditions to be dealt with, the bases of national
policies and the grounds of national fears, we may
look for the gradual development of that enlightened
conscience in international affairs from which the
concepts of the international law of the future will
proceed. 12
So international law was less a perfect structure than
the hard work of developing enlightenment. And this
work was made all the harder as the U.S. Senate
ultimately refused to give consent to the Protocols of the
PCIJ.
When a member of the Supreme Court would again
address the ASIL, the world would be at war, so it is
understandable that the speech would be focused on the
great questions of war and peace. In his 1943 address,
11
Id. at 11.
12
Id. at 13.
xx
Foreword
Justice Owen Roberts returned to a discussion of grand
designs, as did much of the Annual Meeting that year, 13
focusing in particular on the peaceful resolution of
disputes between states. Justice Roberts was not only
interested in an international court, but rather building
“supra-national government” including a legislature and
an executive. He believed international law was weak
due to structural deficiencies:
Treaties, league covenants, and agreements which
may be repudiated at the wish or whim of any nation
party to them leaves the adherents to the compact
little or no power to compel recusant signatories to
comply with their undertakings. And a world court
whose jurisdiction can only be invoked by willing
nations is helpless to prevent such violation of
plighted faith. 14
The weakness of law could be overcome with
organization, institutionalization, and supranationality—
a world federalism:
Given adherence to the fundamental propositions I
have stated, I have enough confidence in the
intelligence of mankind to believe that a convention
of delegates from the nations can overcome the
difficulties presented, as the Constitutional
Convention of 1787 overcame those confronting it. 15
13
KIRGIS, supra note 6 at 167.
14
Address by Associate Justice Owen J. Roberts infra p. 22.
15
Id. at 23.
Selected Speeches
xxi
Ultimately,
Our obligation then is to arouse and enliven public
sentiment in this country in support of an integration
of our own and other nations in a world organization
having the purpose and the power to adjust the
relations of the peoples of the earth in accordance
with the dictates of justice, and to promote and, if
necessary, enforce the peaceful composition of all
differences and disputes which may occur. 16
Justice Roberts was reacting to a specific instance in
time. The United States was embroiled in the most
sweeping conflict in its history and one in which the
nation and a large part of the world are united against a
common enemy. He was not the only leader who
believed that, as the tide of war turned and victory and
peace seemed possible, a new method of international
cooperation was at hand. And, while world federalism
was not in store, the United Nations was.
These early addresses were by Justices who had also
been prominent politicians on the national stage.
Although some of their aspirations—Justice Roberts’s
dream of a rational world government, Chief Justice
Taft’s hopes for the PCIJ—ran headlong against the
harsher realities of the world, they nonetheless showed
how perceptions of international law were entwined with
an optimistic view of America’s place on the world
stage. Justice Hughes, it should be noted, seemed to
have seen international law itself as still more promise
than reality, a promise that could only be realized
through incremental steps rather than grand designs. In
16
Id. at 26.
xxii
Foreword
all of these cases, though, the Justices were looking
outwards asking how international law could reorder
international politics, and what would be America’s role
in ordering international law.
These early addresses cast America as a rising power
and as an architect of a new international legal system,
whatever its eventual form may be. Design and
construction may be hard work, as Hughes emphasized,
but all three of these Justices viewed this construction as
a challenge facing the U.S.: the Nation of Laws building
the Law of Nations.
Justice Hughes’s incrementalism was, in a manner,
further developed in three speeches by Justice Jackson.
In Jackson’s speeches, there were no grand designs for
the abolition of war through law. Rather, Jackson
brought a keen pragmatism into the dialogue in a series
of reflections on the uses and the limits of international
law based on his experiences relating to the Nuremberg
prosecutions. The three major addresses by Justice
Jackson to the ASIL come together as a snapshot of
America and international law at mid-century. America
was emerging from the Second World War with a newfound strength.
International law still held great
promise—and seemed more urgent than ever—and yet
its pre-war institutions were in tatters, or worse.
Jackson, a consummate political insider, did not spend
his time talking about building global governments: he
focused on what would need to happen for the United
States and the new institutions of international law to
survive in this new era.
Justice Jackson opened his 1945 address with a
curveball, telling the leadership of the ASIL: “Few
groups are likely to assemble today that would better
know the shortcomings of international law than this
Selected Speeches
xxiii
group which I am privileged to address.” 17 But, he
continued, it was precisely the people who knew of
international law’s weaknesses who could most
appreciate its strengths and its promise. And it was at
that moment in April, 1945, when there was a yearning
for law as opposed to brute force, that there was an
opportunity to build international legal institutions that
could stand the tests of time and of politics. He
considered the construction of a successor to the PCIJ
and the eventual trial of war criminals. But, after
discussing these institutional matters, he set out a
warning for the United States, the young superpower.
Law, he explained, is not “a policy weapon.” He said:
It is futile to think, as extreme nationalists do, that
we can have an international law that is always
working on our side. And it is futile to think that we
can have international courts that will always render
the decisions we want to promote our interests. We
cannot successfully cooperate with the rest of the
world in establishing a reign of law unless we are
prepared to have that law sometimes operate against
what would be our national advantage. 18
This marked a pivot in the relationship of law and
power in the twentieth century. Up to this point,
America had been a rising power but it had essentially
taken (or rejected) the rules that had been made by the
established European powers. Justice Jackson seemed to
understand that from this point on, the United States
17
Address by Associate Justice Robert H. Jackson (1945) infra p.
27.
18
Id. at 40.
xxiv
Foreword
would have a primary role in making the systemic rules
and it would have to overcome the imperial temptation to
ignore the very legal institutions that it was in the
process of building. In order to strengthen the system,
the United States would have to be willing to lose
arguments.
Similar pragmatic insights ran throughout his
speeches from 1949 and 1952. Ranging from tart
comments on the codification of international law
(“…codification has never yet come out of people’s
imaginations; it has come out of their experiences.
Codification, therefore, is one of the last ways law
develops.”) to observations on the difficulty of building a
legal mechanism to try war criminals when your
partners, the Soviets, have little respect for the rule of
law. Nonetheless, he saw signs of hope in the great
number of substantive legal doctrines common to the
legal systems of the world “as to what is right and fair
between man and man.” 19
Justice Jackson’s genius was in seeing the
importance of the individual to international law. Like
Hughes, Jackson recognized that personal interactions
are the key to building the structures of international law.
But Jackson also understood the growing importance of
the individual as a subject of international law. His third
address, from 1952, considered the construction of
international criminal law. He placed Nuremberg not as
the end of a war, but as the beginning of a process of
construction. And the issues he spotted are startling for
their prescience: “[i]f the United Nations Organization
were to put international criminal law in statutory form,
it certainly must define criminal aggression,” he
19
Id. at 54.
Selected Speeches
xxv
posited. 20 With always a skeptical eye on grand schemes
of international legislation, Jackson saw an analogy in
the construction of international criminal law to the body
of international law as a whole:
While I suppose there is little prospect that an
international criminal court will be established in the
immediate future, its consideration focuses attention
upon problems of jurisdiction, composition and
procedure which, I assure you, are among the most
troublesome in actual practice in this field. I think
that systems of law differ more deeply and
stubbornly in methods of trial than in substantive
principles. Yet, historians have pointed out that the
common law developed procedurally before it did
substantively and that a law of rights and liabilities
began to develop only when there was a system for
adjudicating rights and liabilities. It is not far-fetched
to compare the present state of international society
to a primitive society which had controversies to be
decided long before it had legislatures to frame
codes. Whenever courts begin to function on either
civil or criminal issues, they develop a body of
decisional jurisprudence. We are prone to forget that
law is older than legislation. 21
Justice Jackson’s three addresses bridged the
aspirations of earlier commentators for grand
constructions with the pragmatic concerns of the more
recent Justices. He moved the dialogue from being only
about states to being about state power and individual
20
Id. at 64.
21
Id. at 69.
xxvi
Foreword
rights and responsibilities. While Chief Justice Hughes
discussed the role of the individual in building
international law, it was still a law focused on states.
Justice Jackson argued that international law would
increasingly need to account for the acts of individuals.
His singular experiences at Nuremberg had affected his
views of international law such that he could see the
work of the tribunal as a microcosm for the challenges of
building international law in general, not just
international criminal law.
After Justice Jackson’s speeches, no sitting Justice of
the Supreme Court made a major address to the ASIL
Annual Meeting until the 1990’s. In other words, the
dialogue between the ASIL and the highest court was
almost silent during the whole length of the Cold War. It
is unlikely that there is one specific reason for this
hiatus, although one can see that the focus of the ASIL
was changing. In 1952, the same year of Justice
Jackson’s final major speech at the ASIL Annual
Meeting, the American Journal of International Law
published Myres McDougal’s essay Law and Power,
marking the arrival of a “new, policy-oriented
international jurisprudence.” 22 This new jurisprudence,
which would be known as the New Haven School, was
less focused on the work of judges and moreso on the
interplay of law as part of the broader policy-making
process. 23 With the U.S. embroiled in a long conflict
22
Bederman, supra note 1, at 41; see also Myres S. McDougal, Law
and Power, 46 AM. J. INT’L L. 102 (1952).
23
Regarding the New Haven School, see Harold D. Lasswell &
Myres S. McDougal, JURISPRUDENCE FOR A FREE SOCIETY: STUDIES
IN LAW, SCIENCE AND POLICY (1992); Myres S. McDougal & W.
Michael Reisman, INTERNATIONAL LAW ESSAYS (1981); Myres S.
McDougal & Harold D. Lasswell, The Identification and Appraisal
Selected Speeches
xxvii
with the Soviet Union, a conflict that could not be
resolved by a ruling from an international tribunal, the
interest in the peaceful settlement of disputes waned
somewhat and there was an increased interest in the
relationship of law to foreign policy-making. This was
not so much a turning-away from judges and courts—
always of major interest to the international legal
establishment—but rather a turn towards those most
directly involved with the foreign policy process.
Consider the list of featured speakers at the Annual
Meetings during the Cold War. 24 Current or past
Secretaries of State spoke at the Annual Meetings of
1956, 1965, 1970, and 1975 (among others). Other
Cabinet-level officials or Ambassadors to the UN spoke
at the 1967, 1976, 1984 and 1989 Annual Meetings. A
partial list of speeches by Senators would include the
meetings of 1954, 1955, 1957, 1959 and 1985. And
these lists do not include the major speeches at Annual
Meetings from the likes of Robert Bowie, George Ball,
Averell Harriman, John McCloy or various Legal
Advisers of the Department of State.
How America’s passage through the Cold War
affected its view of international law is a topic well
beyond the scope of this brief foreword. What is clear,
though, is that when Justice Blackmun and Justice
O’Connor renewed the discussion between the ASIL and
of Diverse Systems of Public Order, 53 AM. J. INT’L L. 1 (1959); see
also Oran R. Young, International Law and Social Science: The
Contributions of Myres S. McDougal, 66 AM. J. INT’L L. 60 (1972).
24
The list in the text is drawn from a review the AMERICAN SOCIETY
INTERNATIONAL LAW PROCEEDINGS from the 1950’s to the
1990’s. See also KIRGIS, supra note 6, at 245-51 (the 1950’s); 29899 (the 1960’s); 349-51 (the late 1960’s and early 1970’s); 388-89
(1984); 423-426 (the late 1980’s).
OF
xxviii
Foreword
the judiciary, the dialogue had a profoundly different
tone. Gone were the designs of building international
institutions, let alone world federalism. Also gone was
the tendency to analogize how the international system
should look based on American history. Instead, the
speeches of Justices Blackmun and O’Connor and then
those of Justices Breyer, Scalia, and Ginsburg focused
on what they know best, the hard work of judging claims
before a court.
Justice Blackmun’s opening line could have been a
topic sentence for all five of these addresses: “I am here
tonight to speak about the Supreme Court, the law of
nations and the place in American jurisprudence for what
the Drafters of the Declaration of Independence termed
‘a decent respect to the opinions of mankind.’” 25 In his
review of cases that the Court had recently heard,
Blackmun catalogued some of the main issues that
would animate arguments concerning international law
in U.S. courts in the coming years. He discussed
methods of treaty interpretation, disputes over when the
U.S. actually has jurisdiction over an alien, and the role
of foreign opinions when assessing topics such as the
constitutionality of the death penalty.
Justice Blackmun’s enthusiasm for international law
was tempered by his observation “that the present
Supreme Court enforces some principles of international
law and some of its obligations some of the time.” 26 This
25
Address by Associate Justice Harry A. Blackmun infra p. 73. The
role of international law in Justice Blackmun’s decisions has been
analyzed in Margaret E. McGuinness, The Internationalism of
Justice Harry Blackmun, 70 MO. L. REV. 1289 (2005).
26
Blackmun, infra at 82. Perhaps this was also a wink and a nod to
Louis Henkin’s famous construction that “[i]t is probably the case
that almost all nations observe almost all principles of international
Selected Speeches
xxix
may be due to judicial deference to the Executive or the
comparative lack of diplomatic experience of modern
Justices to those of earlier times. It echoed Chief Justice
Hughes’s contention that international law would
progress as lawyers and judges are more involved in the
process of international law. Hughes himself had been a
judge on the PCIJ and the Permanent Court of
Arbitration; Chief Justice Taft had been a commissioner
in the Venezuela-British Guyana boundary dispute and,
of course, had been President of the United States.
Justice Jackson had been the chief prosecutor at
Nuremberg. More recently, Justices of the Supreme
Court have come from the ranks of academia,
government service in domestic law and policy settings,
and/or private practice. International experience prior to
sitting on the bench has been relatively rare since the
early twentieth century. Such differences in experience
may have played a part in the different voices that were
used. Justices Taft, Hughes, and Roberts had either been
President or had been possible contenders for the
Presidency. This, combined with the concerns leading
up to and during the Second World War, would likely
cause these Justices to look to international law
particularly in its relation to “high politics” and
diplomacy.
If anything, Justice O’Connor made this a central
theme in her remarks. While she also addressed the
main issues facing the Court, she described the ways in
which U.S. judges are interacting with their counterparts
around the globe. Whereas Justice Owen Roberts
described the prospect of supranationality, Justice
law and almost all of their obligations almost all of the time.” LOUIS
HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 47 (2d
ed.1979) (emphasis in original).
xxx
Foreword
O’Connor explained the reality of “transjudicialism,” the
complex interplay of courts and tribunals across national
lines. This globalization of judicial relations was why
she considered that international law, properly
understood, was no longer just about treaties but,
borrowing from Philip Jessup, the regulation of activities
across national boundaries.
Justice O’Connor’s speech was the first postSeptember 11th speech by a Justice to the ASIL. It was
also the first speech since the super-heated globalization
of the late 1990’s. If the speeches of the early Justices
were animated by two world wars, then Justice
O’Connor’s may be seen as being informed by terrorism
and globalization.
The final trio of speeches were primarily concerned
with citation to foreign legal materials by U.S. courts.
This issue had become hotly contested by commentators
and in Congress. Justice Breyer’s address from 2003 set
the stage by providing a typology of the ways on which
foreign legal materials are used by judges. He contrasted
formalistic views of the law with the experience of
recent decades, echoing Robert Jackson’s observations:
Formally speaking, state law is state law, but
practically speaking, much of that law is national, if
not international, in scope. Analogous developments
internationally, including the emergence of regional
or specialized international legal bodies, tend
similarly to produce cross-country results that
resemble each other more and more, exhibiting
common, if not universal, principles in a variety of
legal areas.
These growing institutional and substantive
similarities are important because to a degree they
Selected Speeches
xxxi
reflect a common aspiration—a near-universal desire
for judicial institutions that, through guarantees of
fair treatment, help to provide the security necessary
for investment and, in turn, economic prosperity.
Through their respect for basic human liberty, they
thus may help to make that liberty a reality. The
force of this aspiration, I hope and believe, is
virtually irresistible.27
The following year, Justice Scalia addressed the use
of foreign sources of law. Using interpretive canons as a
starting point, and analogizing to the improper use of
legislative history, Justice Scalia explained why foreign
law is of very little use in construing U.S. statutes or the
U.S. Constitution. Moreover, he argued, foreign legal
materials are especially prone to misuse.
Justice Ginsburg’s speech returned to the topic of
foreign law and considered what it meant to have “a
decent respect to the opinions of [human]kind.” She
explained:
while U.S. jurisprudence has evolved over the course
of two centuries of constitutional adjudication, we
are not so wise that we have nothing to learn from
other democratic legal systems newer to judicial
review for constitutionality. The point was well made
by Second Circuit Judge, former Dean of Yale Law
School, Guido Calabresi: "Wise parents," Judge
Calabresi said in a 1995 concurring opinion, "do not
hesitate to learn from their children." 28
27
Address by Associate Justice Stephen G. Breyer infra p. 105.
28
Address by Associate Justice Ruth Bader Ginsburg infra p. 129.
xxxii
Foreword
Justice Ginsburg went on to frame the importance of
learning in the midst of an increasingly complex world,
debunking along the way misconceptions about how
judges actually use foreign law—“comparative
sideglances”—in their work. There is no specter of oneworldism here, only judges trying to glean insight from
the experiences of others.
The discussion in these speeches (and to a lesser
extent in Justice Blackmun’s and Justice O’Connor’s as
well) are in contrast to those of Justices Taft, Hughes,
and Roberts. The early speeches asked what America’s
experience could do for international law; more recent
speeches ask what international law may do for (or to)
the American experience.
The shift in emphasis is because the encounter of the
American judiciary with international law over the
course of this century has really been within the broader
social context of America coming to terms with what we
now call globalization. Justices Taft, Hughes, and
Roberts were all talking about globalization, but using
the terms of their time: the “end of isolationism,”
“supranationality,” and so on. These speeches were in
part defined by the First and Second World War, but
they were also defined by America’s entrance onto the
world stage as a superpower. For these Justices,
America was a rising military and economic superpower
during a time when international economic relations
were still relatively weak and slow and there was no
other state that could muster anywhere near the
economic strength of the U.S. Globalization was a oneway street: how America would affect the globe.
While the speeches from early in the twentieth
century were framed by America as a singular power in
the world, the more recent addresses are characterized by
the effects of globalization. Although America may now
Selected Speeches
xxxiii
be in a one-superpower world, the defining feature of
this era for Americans is not so much that there is no
other superpower but that globalization has increased in
both breadth and intensity beyond anything any of us has
previously experienced. And so for today’s judges,
globalization is not a dream or a potential but a day-today reality, steeped with both promise and peril:
international financial markets that never close;
intellectual property zipping through cyberspace;
discovery requests to and from foreign courts; terrorist
plots devised in Afghanistan, developed in Germany, and
executed in New York, Washington, and over
Pennsylvania.
The era of globalization is one that has brought
renewed focus on the work of judges, as well as the work
of legislators, regulators, and members of civil society,
particularly in how such groups coordinate across
national borders. 29 It is thus of no surprise that judges
would be once again featured at Annual Meetings.
Globalization has affected the jobs of the Justices:
today’s Supreme Court Justices have meetings with
counterparts from around the world, participate in
international colloquia, and contribute to rule of law
projects for democratizing nations. But it is no longer
29
Examples of international legal scholarship focusing on the crossborder relations of sub-national actors as methods of generating law
include Vicki C. Jackson, Constitutional Comparisons:
Convergence, Resistance, Engagement, 119 HARV. L. REV. 109
(2005); ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004);
Developments in the Law: International Judicial Dialogue, 114
HARV. L. REV. 2049 (2001); Anne-Marie Slaughter, A Typology of
Transjudicial Communication, 29 U. RICH. L. REV. 99 (1994);
Melissa A. Waters, Mediating Norms and Identity: The Role of
Transnational Judicial Dialogue in Creating and Enforcing
International Law, 93 GEO. L. J. 487 (2005).
xxxiv
Foreword
simply America helping the world; it is also the world
making claims on America: to abide by our treaties, to
respect international norms, to participate in a broader
conversation that is taking place on what is good and
just. While the Nation of Laws may have been a key
architect of the Law of Nations, we are now coming to
appreciate the ramifications of the system we have
wrought. Globalization is a two-way street. While many
judges from previous eras had considered how America
may affect the world, this is the first generation of judges
that is truly coming to terms with how the world may
affect us.
In doing so, the current generation of judges and
lawyers are doing the hard work described by Justices
Hughes and Jackson. Whether they realize it or not, they
are staking claims as to the proper balance between the
international and the national. It is not a role which
comes easy to a people that is used to being separated by
oceans and time-zones from the rest of the world. But
we are now finding that the world is a bit smaller—but
more varied—than we had previously assumed. And in
the day to day decisions of courts, we are learning to
deal with it.
Address at the Sixteenth Annual Meeting
By Chief Justice William Howard Taft*
Saturday, April 29, 1922
Mr. Toastmaster, ladies and gentlemen of the
American Society of International Law: I do not know
whether I am a member of this Society or not. 30 If I am
not, it is an exceptional society. When I had the
invitation to come here from Dr. Scott, 31 I wrote to him
* Chief Justice, Supreme Court of the United States. William
Howard Taft (1857-1930) was the Twenty-Seventh President of the
United States from 1908 to 1912. He had previously been a judge on
the Ohio Superior Court, Solicitor General of the United States
(1890-1892), a judge on the U.S. Court of Appeals for the Sixth
Circuit (1892-1900), and Governor General of the Philippines
(1901-1904) and Secretary of War (1904-1908). After his electoral
defeat in 1912, Taft became a professor of constitutional law at
Yale. In 1921 he was appointed Chief Justice of the United States
Supreme Court and served until 1930. Taft was one of the cofounders of the ASIL. See also Michael Dunne, William Howard
Taft, Charles Evans Hughes and the Permanent Court of
International Justice, in GREAT JUSTICES OF THE U.S. SUPREME
COURT 195 (WILLIAM D. PEDERSON AND NORMAN W. POVIZER,
EDS., 1993).
30
William Howard Taft—prior to becoming President of the United
States and later Chief Justice of the U.S. Supreme Court—was
actually one of the founders of the ASIL.
31
James Brown Scott (1866-1943) was founding dean of the
University of Southern California Law School and was also dean of
the University of Illinois Law School. Scott was a professor of law
at Columbia Law School, George Washington University Law
School, and the University of Chicago School of Law. He was
President of the ASIL from 1929 to 1939 and edited the American
Journal of International Law from 1907 until 1924. See In
1
2
Chief Justice William Taft
that I would come if I did not have to make a speech;
that it would be in the evening after a Conference with
my eight brethren of four or five hours, which while a
very delightful session, would take all the vitality there is
in me out of me. When you lock nine men into one room
and have to reach conclusions, the result is just a bit
exhausting. Therefore, I thought that Dr. Scott, because
he is a kindly looking man, he is a man of kindly
manner—would really regard my request; and I hoped
that seated next to the presiding officer who then I
expected to be Mr. Elihu Root, 32 I thought I could appeal
to him as an old friend to let me out. I came here to find
instead the head of an institution, a great university, who
is in the habit of running things himself, and is not in the
habit of excusing a man who is not prepared. This is my
apology for coming before you with so little to claim
your attention.
It has been very pleasant to meet so many
distinguished people interested in a subject so vital to the
happiness of the world. It has been a great pleasure for
me to hear the Secretary of Labor, 33 who is charged with
Memoriam: James Brown Scott, 38 AM SOC’Y INT’L L. PROC. 98
(1944).
32
Elihu Root (1845-1937) was the founder and first President of the
ASIL. His career included being a U.S. Senator (representing New
York), serving as Secretary of State, and being the first President of
the Carnegie Endowment for International Peace. Root was the
recipient of the Nobel Peace Prize in 1912. See James Brown Scott,
Elihu Root: An Appreciation, 31 AM SOC. INT’L L. PROC. 1 (1937).
His Nobel lecture is available at http://nobelprize.org/peace/
laureates/1912/root-lecture.html.
33
James J. Davis was the Secretary of Labor from 1921 until 1930.
His remarks are transcribed at 15 AM. SOC. INT’L L. PROC. 102
(1923).
Selected Speeches
3
the responsibility primarily of seeing who shall come
into this country, and who shall stay out. I have no doubt
that this administration will be a successful one. There is
only one danger in that he is a Welshman, and I fear he
may think that the rest of the world may have the same
capacity for getting on, that the Welsh have, and that he
may lose a little sense of proportion with reference to the
difficulties others labor under who have not that power
of making other people do what they wish them to do.
We have a Secretary of State 34 who comes from—not
immediately, but through an ancestry—from Wales.
Then on the other side they do not seem to be able to get
on without the Welsh. Now if the Secretary of Labor
sets a Welsh standard of the kind of aliens we are to get
in, we will keep out most of the world.
I felt, however, that I should come in answer to this
invitation, because since I have been associated with my
friend Scott, I know that he regards the institution of
which I have now the honor—undeserved honor—of
being the head, as exhibit A in international law. If I
may judge of the volumes of our decisions that he has
put upon the poor students of international law, I should
think that our court would be regarded with a great deal
of concern by those who are to study the subject. He
draws much from our opinions, as evidence of what can
be done in the world, if you will only have a Supreme
Court of the world. We do administer international law,
and we have every little while an example of the
foresight—I hope it may be called—of our ancestors in
making provisions for such an international tribunal
within the Constitution. The Articles of Confederation
34
Charles Evans Hughes was U.S. Secretary of State from 1921 to
1925. See biographical note to Address by Chief Justice Charles
Evans Hughes infra p. 9.
4
Chief Justice William Taft
first gave us the idea, and it was followed in the
Constitution.
That story of Connecticut and Pennsylvania fighting
out the question of their controverted titles in Wyoming
Valley is perhaps the first instance of a real settlement by
a court that we have had in this country of international
matters. 35 They fought out the question, there were seven
judges that heard all the arguments on both sides at
Trenton, and then they decided the case for Pennsylvania
flat, without a word of reason. They just registered their
vote, and Pennsylvania took title. But if you will follow
the legislative proceedings thereafter, you will find that
within a very few days there was filed in Congress a
grant from the State of Connecticut of its possessions
clear from Connecticut to the South Sea given it by
Charles the Second, a most generous donation of what
they did not have, with a reservation which was the
negro in the wood pile. It was a reservation of all that
part of the territory so generously granted which lay west
of the western boundary of Pennsylvania, and ran some
hundreds of miles along Lake Erie, about the width of
Connecticut. This they retained for themselves, never
having had it before.
You will observe that in the legislative history
delegates from Pennsylvania favored the acceptance of
the grant which included in the acceptance the
35
The “Pennamite Wars” were military clashes between
Pennsylvania and Connecticut from 1769 through 1799 over the
Wyoming Valley (in what is now Northeastern Pennsylvania),
which had been variously granted by King Charles to each of the
two colonies under different charters. After Independence, the
Continental Congress appointed an arbitral commission, which
found for Pennsylvania. The issue was finally resolved in the
Compromise Act of 1799.
Selected Speeches
5
confirmation of the reservation. Which only goes to
show that in Connecticut—I now date from
Connecticut—we kill cats in other ways than by choking
them with butter. Now that was a great judicial and
international settlement.
And we are having today now in court, which
amuses me, another instance of some of that same
international aptitude. 36 The State of Massachusetts is
suing in our courts to get back some land on the floor of
Lake Ontario which it acquired from New York by a
treaty of Hartford in 1786. Massachusetts ordinarily
does not wait quite so long before getting a dividend, but
for some reason or other they have turned up just at a
time when Rochester wants this land under the water in
Lake Ontario for the purpose of a park. That is a good
time to get in, when somebody else wants what
originally was not so desirable.
A controversy also has arisen between Oklahoma and
Texas, and that, seriously, is an instance of the usefulness
of such a tribunal. 37 The bed of the Red River up to date
has never been full of usefulness; at least one was not
able to discover it until oil was found lying under the
riverbed between Oklahoma and Texas. That made both
Oklahomans and Texans feel that the rights of sovereign
states should be preserved. And when an Oklahoman
and a Texan wish to preserve those rights and they
conflict, it is a very useful tribunal that keeps them apart.
No one knows what is going to happen after the
Great War. It is a little more difficult to prophesy now
than it was before the war. I hope we shall have reason
to be thankful that out of this dreadful welter of blood,
36
Massachusetts v. N.Y., 271 U.S. 65 (1926).
37
Oklahoma v. Texas, 272 U.S. 21 (1926).
6
Chief Justice William Taft
this dreadful destruction, we shall derive some lessons
which will drive deep into the hearts of men the
necessity of having law between nations that shall be
observed. The lessons that are being taught today with
reference to the attitude of Russia, which has repudiated
all obligations to any other nation, has refused to
recognize any obligations, the plight that nation is in, and
the lessons that are being taught her and her
representatives as to the disadvantages they labor under
by reason of having lost the confidence of other nations,
are something that I hope will be carried to the hearts of
all men, so that the necessity for international law and
the recognition of its obligations may be brought more
clearly home to all nations than they have ever been
before.
I am an optimist. I feel that out of all this we are
going to get an advance—not a radical advance, because
that is not the way that real progress comes. It comes
step by step. The progress that is radical usually
involves a good deal of retracing. It is discouraging at
times to look out upon the world and note how difficult
nations broken by war find it to reestablish peaceful and
prosperous conditions, yet as time goes on, while we are
discussing what must be done in order to make things
better, things are working while we sleep. Men have to
live, men have to have communities in which to live, and
men have to work in order that they shall live. In doing
this they are gradually recovering in the light of the
lessons that have been taught by these dreadful disasters
which they have endured and which I doubt not will
make them cautious hereafter. They will give a sense of
value of those things that make for conservatism, for
peace, for observation of the obligations that each man
owes to every other man, of obligations that all nations
owe to one another. In lessons thus taught we shall find
Selected Speeches
7
the growth and development of international law with
more sanction behind it.
Now we have a court in the League of Nations. It is
a great institution. It is an institution that I doubt not will
make much for the benefit of the world. It is an
institution in which we have a great and worthy
American representative. 38 It is established on broad
principles. We should take pride in the fact that its
machinery was worked out with the genius and
experience of the man than whom no one stands higher
in the field of international law, our own Elihu Root.
That court is an American invention and it derives its
strength from American tradition, and I sincerely hope
that we are working towards it.
38
John Bassett Moore (1860-1947) was the first American Judge on
the Permanent Court of International Justice, from 1923 to 1928.
Earlier in his career, he had served as an Assistant Secretary of
State. In 1891 he left the Department of State to become the
Hamilton Fish Professor of International Law and Diplomacy at
Columbia Law School. Moore was one of the original members of
the ASIL and an Honorary Vice President. See, Manley O. Hudson,
John Bassett Moore, 42 AM. SOC'Y INT'L L. PROC. 105 (1948).
Address at the Twenty-Fifth Annual Meeting
By Chief Justice Charles Evans Hughes*
Saturday, April 25, 1931
I am glad to give you a word of greeting on this
anniversary, 39 and to reweave the charm of the delightful
intimacy of other days. It is a privilege again to breathe
the pure and serene air of this Society; to come once
more to a scene of peaceful controversy where nothing is
to be decided. You have the rare joy of employing your
best efforts in relation to affairs of much practical
importance without any responsibility for results. Mr.
Justice Holmes once observed of the Supreme Court—
“We are very quiet there, but it is the quiet of a storm
center.” 40 You, in contrast, view the storms at a safe
* Chief Justice, Supreme Court of the United States. Charles Evans
Hughes (1862-1948) served as Governor of New York (1907-1910),
Associate Justice (1910-1916) and subsequently Chief Justice of the
U.S. Supreme Court (1930-1941), and U.S. Secretary of State
(1921-1925). He was also a member of the Permanent Court of
Arbitration (1926-30) and was a judge on the Permanent Court of
International Justice (1928-30). He was a co-founder of the ASIL
and served as its President (1924-1929). See Michael Dunne,
William Howard Taft, Charles Evans Hughes and the Permanent
Court of International Justice, in GREAT JUSTICES OF THE U.S.
SUPREME COURT 195 (WILLIAM D. PEDERSON AND NORMAN W.
POVIZER, EDS., 1993).
39
This speech was given at the Annual Meeting commemorating the
Twenty-Fifth Anniversary of the ASIL.
40
Oliver Wendell Holmes, Law and the Court, in COLLECTED
LEGAL PAPERS 292, 292 (1920) (speech given to the Harvard Law
School Association of New York on Feb.15, 1913).
9
10
Chief Justice Charles Evan Hughes
distance, maintaining a sort of legal meteorological
bureau. You may recall Dr. Lieber's letter to Secretary
Seward at the close of the Civil War, suggesting the
reference of international disputes to universities. 41 "The
law faculty of a renowned university would seem," he
said, "almost made for this high function." That was said
before the organization of this Society, with its even
superior facilities for supplying not only weighty
judgments but the choicest dissenting opinions.
I congratulate you upon having survived 25 years of
the contemplation of international law, with
unquenchable zeal. Your enterprise was launched by that
distinguished statesman whose sagacious practicality is
always the ready instrument of a noble idealism. Mr.
Root in his opening address gave the raison d'être of
your organization in these words: "It is impossible that
the human mind should be addressed to questions better
worth its noblest efforts, offering a greater opportunity
for usefulness in the exercise of its powers, or more full
of historical and contemporary interest, than in the field
of international rights and duties." The past 25 years
have been extraordinarily adapted to your purposes. You
have been the witnesses of the most astounding, epochmaking, revolutionary events in modern history. Not
41
Francis Lieber (1800-1872) wrote in 1863 the Instructions for the
Government of Armies of the United States in the Field, also known
as the “Lieber Code,” which became a general order by President
Lincoln concerning the conduct of the Union Army. The Lieber
Code is a key source in the development of modern international
humanitarian law. William H. Seward (1801-1872) was Secretary of
State from 1861 to 1869, serving under Presidents Abraham Lincoln
and Andrew Johnson. Seward helped Lincoln draft the
Emancipation Proclamation. At one time, the U.S. purchase of
Alaska from Russia for $7.2 million was known as “Seward’s
Folly.”
Selected Speeches
11
merely a change in the setting of the stage, or in the
introduction of new actors, not simply in new forms, or
in the mere vicissitudes of national fortunes. There has
been a breaking of the crust which centuries have
formed, and forces have been released which are creating
a new world. The processes of readjustment are so
radical that we are as yet unable to discern the outcome.
But one thing we know. Human nature, with all its
limitations and its aspirations, remains essentially the
same, and its supreme interest is justice. And the great
interrogation as we face the uncertainties of the future
is—Which will be triumphant, lust of power, an
imperious chauvinism, class consciousness, or a
dominating sense of justice which rides in the whirlwind
and directs the storm? The sentiment of justice, like
charity, begins at home. When we seek the ultimate
confronting force, we look not for pious phrases but for
the spirit of the nations as disclosed not simply in
international relations but in domestic affairs. Turbulent
peoples will not build enduring peace. As there can be
no reign of law in the international sphere save as it
expresses the sway of an enlightened conscience,
recognizing what is fairly due to others as well as to
oneself, there is small ground for encouragement if we
find in the domestic sphere, where this attitude of mind
is to be formed, the absence of self-restraint, the inability
satisfactorily to maintain the administration of local
justice, and the victories of the passionate, the
unintelligent and the corrupt.
If we consider the content of international law, as a
body of rules which states feel themselves under
obligation to observe, we may be disappointed in both
the extent and the rate of development. We have had
recently a vivid illustration of the difficulty in extending
formally the content of international law or even of
12
Chief Justice Charles Evan Hughes
recording agreement as to what that content now is. In
this hemisphere, to be sure, a notable effort in
codification has been made. But the endeavor of years
which brought about the recent conference at The Hague
on codification served to disclose that even with respect
to three selected subjects, Nationality, Territorial Waters
and Responsibility of States, subjects deemed to be ripe
for the purpose, no agreement could be reached at
present. 42 There is nothing surprising in that. We should
have been astounded beyond measure if an agreement
had been reached. The most difficult of all tasks for
lawyers is to agree upon what the law is. They are quite
ready to furnish some very general formulas from which
endless controversies may spring in application. The
difficulty increases with the importance of the subject.
The art of circumlocution, so familiar in domestic
procedure, is not wholly unknown to international
conferences. You may remember the advice of the old
lawyer to his son: If justice seems to be against you insist
strenuously upon the law. If you are in doubt about the
law, demand justice. If you have a case where both law
and justice are against you, "talk around it." Quite
naturally the effort to make real advances in defining or
expanding the content of international law is more apt to
reveal disagreement than harmony of views. And when
you add to the capacity of lawyers—and perhaps the
even greater capacity of jurists—for multiplying
42
The League of Nations Codification Conference was held at the
Hague from March 13 to April 12, 1930. Although no draft
conventions were adopted out of this conference, the Codification
Conference became one of the roots of the International Law
Commission of the U.N. See Manley O. Hudson, The First
Conference for the Codification of International Law, 24 AM. J.
INT’L L. 447 (1930).
Selected Speeches
13
differences of opinion, the divergence in national
policies, the apprehensions of nations, and the historic
conflicts in the views of foreign offices, you have a task
for which a period of 25 years is altogether too short to
yield gratifying results.
Instead of attempting to record the progress of
international law, I should prefer to dwell upon the
progress of international lawyers. Perhaps, I should say,
the progress of the students of international law. They
multiply, and increase in learning and avidity. Not so
long ago, except upon the part of very few, there was but
a polite and weak interest in the study of international
law. Now it is one of the most popular of subjects.
Conferences and institutes are formed to give
opportunity for professional talent and ample
encouragement to amateurs. All the devices of modern
communication are enlisted to excite and to gratify the
interest of the public. Books and periodicals dealing
with various aspects of foreign relations fill our library
tables, courses offered in universities are eagerly sought,
and special schools are established for intensive study.
Groups of young persons under skilled leaders may be
found journeying about the world, attending assemblies
and seeking interviews with harassed foreign ministers
and conference delegates. All this activity holds the
greatest promise. It will yield results in lawyers, if not in
law. And I believe that out of this earnest study and
comparison of opinions, and, in particular, out of the
serious endeavor to understand intimately and correctly
the conditions to be dealt with, the bases of national
policies and the grounds of national fears, we may look
for the gradual development of that enlightened
conscience in international affairs from which the
concepts of the international law of the future will
proceed.
14
Chief Justice Charles Evan Hughes
If little has been achieved in promoting the
development of international law, as a definite body of
law, we have abundant reason for gratification in the
promotion of institutions for the peaceful settlement of
international disputes. Law is not an end in itself but a
means for establishing a basis for the mutually
advantageous intercourse of peaceful peoples. If success
were attained in laying down a complete code of law,
there would still be the need of endless applications to
varieties of conduct. We have abundance of law in this
country, but that is only the beginning of trouble. Courts
are busy in determining countless shades of differences
in application. Under the most carefully contrived pieces
of legislation, it is the unexpected that happens. Our
excellent Constitution, after half a century of
interpretation, and despite agreement upon fundamental
principles, gives us every day new questions. And under
our abundant federal legislation, with its host of specific
provisions, controversies constantly arise. Happily our
domestic peace does not depend upon the attainment of
an impossible ideal in the certainty of law, but rather
upon the assurance of the peaceful settlement of
controversies by our system of judicial determinations.
In the international sphere, while we should do all we
can to define and improve the law, it is idle to talk either
of peace or of justice save as the instrumentalities of
peaceful settlement are promoted. Suppose, at the outset
in our own country, the opinion had been dominant that
it was useless to have a federal judicial tribunal, which
should deal with the scope of federal regulation of
interstate commerce, until interstate commerce, its
instrumentalities, and the extent of permissible federal
legislation had been fully defined. What a mess we
should have been in! The purpose of the constitutional
provision could be achieved only through gradual
Selected Speeches
15
interpretation by judicial tribunals. In my present
official position, it is not fitting that I should comment
on the special questions of policy that are under
consideration by our Government. But, apart from these,
I have no hesitation in saying that the best hope of the
world today, so far as the development of international
law is concerned, lies in the establishment of a
permanent court of international justice. I grant you that
its province is not to legislate, that it should have a body
of law, as complete as possible, to apply. But the
accepted principles which govern the nations must be
expounded and applied. A vast and steadily increasing
number of international agreements give rise to questions
of interpretation, which are questions of law requiring
judicial determination. Beyond these, there lies the
broad field of conciliation and adjustment of disputes
which may not be of a justiciable sort. It is in the
development of agencies for these purposes, giving
greater play to the processes of reason, and in the
disposition to utilize them, that we find the most notable
progress.
The labors of jurists are not lost because they fail to
end in agreement among themselves. Even in their
disagreements they are the exponents of the essential
methods of reason. They not only supply the necessary
material of learning and argument, but they inculcate the
spirit which demands reasoned results. It is that spirit
that counts in the development of law.
It is that spirit which broods over this organization
and has made it a valued instrument in the formation of
sound opinion.
This Society has not been long
established, but it could ask for no worthier traditions
than those it enjoys or for a more enviable record of
usefulness than that which we review on this
anniversary.
Address at the Thirty-Seventh Annual Meeting
By Justice Owen J. Roberts*
Saturday, May 1, 1943
Mr. President, 43 ladies and gentlemen: When I was
inveigled by the committee in charge of this dinner to
agree to speak here, I began to think about the propriety
of the thing, and the more I thought about it, the more I
wondered whether I was more flattered or more
frightened to speak to a body of internationalists. But as
I have considered the matter, I have come to the
conclusion that a very common lawyer might contribute
something to international thought if you will treat him
just as a layman in this field, who has been worrying and
∗
Associate Justice, Supreme Court of the United States. Owen
Roberts (1875-1955) served as an Associate Justice of the U.S.
Supreme Court from 1930 to 1945. He had previously been a law
professor at the University of Pennsylvania (1898-1918). From 1901
to 1904, he was as assistant district attorney in Philadelphia. Roberts
rose to national prominence for his investigation and prosecution of
the Teapot Dome scandal in 1924. His time on the Supreme Court
included the crises over the New Deal legislation; Justice Roberts’
switch from opposing to supporting various New Deal initiatives is
viewed by some as having contributed to the demise of FDR’s
attempted reorganization of the Supreme Court. After Justice
Roberts retired from the Court, he was the Dean of the University of
Pennsylvania Law School from 1948 to 1951. See also infra note
44.
43
The President of the ASIL was Frederic R. Coudert, Sr. (18711955), who served in that capacity from 1942 to 1946. Coudert was
also one of the original organizers of the ASIL in 1906. See In
Memoriam: Frederic R. Coudert, Senior, 49 AM SOC’Y INT’L L.
PROC. 113 (1955).
17
18
Associate Justice Owen J. Roberts
thinking, as most of our citizens in this country, I think,
have been worrying and thinking, about what is to come
after the war. I shall say very briefly what is on my mind
about that.
The development of international law in the last fifty
years has been substantial. It seems fair to say that this
recent development is greater than the world has
witnessed in historical time.
International law, viewed as the formulation of the
customs of civilized nations in the conduct of their
mutual relations has become a great corpus of
jurisprudence through the consensus of experts working
in the field. In addition, there has recently grown a large
body of consensual international law embodied in the
formal agreements to which nations are parties.
The last two decades have also witnessed an
encouraging advance in the resort to adjudication of
international disputes. The practice of submission of
questions arising between nations to the Permanent
Court of International Justice has been a long step
forward in the recognition of right principles in
composing international differences.
In the years following the First World War there
seemed reason to hope that, by a course of evolution,
nations would come to adopt these methods of adjusting
their mutual concerns and that the rule of reason and
justice might more and more pervade the settlement of
questions arising between them.
The invaluable services of the League of Nations in
many fields, but particularly those of health and hygiene,
economics, and industrial relations, gave hope of further
progress and fuller understanding and cooperation. The
many peace treaties by which nations covenanted to
make their best endeavor to settle disputes arising
between them, without resort to force, seemed to
Selected Speeches
19
promise the ultimate outlawry of war. The general
satisfaction with the work of the Permanent Court of
International Justice foreshadowed increasing resort to
that tribunal.
The League of Nations itself was far in advance of
anything the world had known as an instrument of
international political control of national sovereign
rights.
But it became increasingly evident from 1933 that all
existing instruments of international cooperation and
adjudication would prove inadequate to preserve the
world from resort to force. It became evident that the
only existing sanction of international faith and honor,
namely, the sentiment of the majority of civilized men,
would prove insufficient to deter some nations from
flouting both the express covenants to which they were
parties and the corpus of established principles of
international law which has grown with the advance of
civilized living. The present war is witness to the fact
that, in world crises begotten by race pride, by the lust
for national aggrandizement, and by national selfishness,
international law is powerless.
The international role which the United States has
played has been conditioned upon the state of public
opinion in the nation. In each of the two world wars our
Government, responsive to the popular will, initially
attempted to play the part of a neutral. In both cases our
citizens have, after serious and costly delay, discovered
that the world's business is our business; that we cannot
erect a wall and sit safely behind it while the flames of
war rage beyond our borders; that we must act not only
for the vindication of the principles to which our
Government is dedicated but, from a merely selfish point
of view, we must defend the personal and economic
freedom of our citizens or lose it. And so, tardily and
20
Associate Justice Owen J. Roberts
unwillingly, the people of the United States have been
forced to throw the weight of their will and their
resources to the support of the efforts of nations fighting
to vindicate those principles for which we stand. I
believe that we have come to realize that we cannot, as a
nation, live in isolation; to understand that, if we are to
have the essentials of our free democratic way of life we
must join other nations in means and methods to
perpetuate world peace through world cooperation.
Our recent experience teaches that all the expedients
to which the nations have turned are insufficient to keep
the peace. We have learned that leagues, treaties,
agreements, voluntary submission of disputes to a world
court, fall short of reaching the goal. What other
recourse is there? Our own national experience as a
federation of independent sovereigns seems to point to at
least one avenue to be explored. Is it not plain that, so
long as national sovereignty remains absolute, no means
will exist for preventing the abnegation of the
obligations of international good faith? Must there not
be a fundamental framework of government to which the
people of each constituent nation surrender such portion
of their nation's sovereign prerogative as is essential to
an international order; that each nation be bound by
certain agreed rules so that no single nation, and no
group of nations, can, for any reason, or for no reason,
assert its or their unbridled will by resort to arms?
What I read, and what I hear, leads me to believe
that, amongst men of your background and training, and
indeed amongst the thinking laymen of the United States,
the overwhelming opinion is that some such organic and
fundamental law must be adopted if we are to have
world order and world peace. Men differ widely as to
the character of the structure and the powers to be
conferred upon a supra-national government and the
Selected Speeches
21
machinery by which those powers are to be
implemented. These are matters in connection with
which experts like yourselves can be of inestimable aid.
The difficulties of framing such an organization
admittedly are enormous. They challenge the best
ingenuity and skill of the most expert.
Naturally there will be differences as to detail. But it
seems to me that there ought not to be much difference
of view respecting certain fundamental requirements.
Supra-national law must be law affecting and binding
individual citizens of the nations belonging to the supranational Government, in the same sense that the law of
the United States, consisting of the Constitution, and the
statutes adopted pursuant to it, bind every citizen of the
nation.
The contrast between the Articles of
Confederation and the Constitution in this aspect is
sufficient to enforce the conclusion. The United States
could never have persisted through the 150 years of its
life if the laws of the nation had been addressed to, and
binding upon, the states as entities rather than upon the
individual citizens of the states. The police force of any
government necessarily must enforce the law of that
government against its citizens—not against the state or
nation to which those citizens belong. Enforcement as
against a citizen is a police function; enforcement against
state or nation as an entity is war.
The psychology back of federal legislation is that the
citizen's loyalty and fealty to the nation stands over
against his loyalty to his particular state. That balance of
loyalties, with all its obvious value, would be lost if
issues between the federal government and its
constituent members were closed by the mandate of the
federal Government to the state instead of to its citizens.
It seems obvious that a world government must have
a representative assembly to implement its delegated
22
Associate Justice Owen J. Roberts
powers. Equally plain is the necessity for an executive
to administer the laws and see to their enforcement. And
under that executive there must be an independent police
to effectuate the legislative policy and the executive
action pursuant to it.
Lastly, there must be a judiciary to which disputes
between the citizens and the supra-national government,
between citizens and any nation a party to that
government, and between nations, must be submitted for
adjudication.
These three instrumentalities are essential if we are
to avoid the weakness and inefficiencies of all prior
forms of international cooperation. 44 Treaties, league
covenants, and agreements which may be repudiated at
the wish or whim of any nation party to them leaves the
adherents to the compact little or no power to compel
recusant signatories to comply with their undertakings.
And a world court whose jurisdiction can only be
invoked by willing nations is helpless to prevent such
violation of plighted faith.
I shall not stop to discuss the details of structure and
powers of international government. As I have said,
these matters challenge the ingenuity, the skill, and the
imagination of those who are indoctrinated in the theory
of government and who are expert in international law.
Given adherence to the fundamental propositions I have
44
Justice Roberts was a supporter of “world federalism.” After he
retired from the Supreme Court, besides his work as Dean of the
University of Pennsylvania Law School and serving as a chairman
of the Fund for the Advancement of Education, “most of his
energies were… devoted to the cause of world federalism, although
he avoided formal ties with the organizations devoted to this end.”
David Burner, Owen J. Roberts, in 3 THE JUSTICES OF THE UNITED
STATES SUPREME COURT 1117, 1128 (Leon Friedman and Freed L.
Israel, eds., 1969).
Selected Speeches
23
stated, I have enough confidence in the intelligence of
mankind to believe that a convention of delegates from
the nations can overcome the difficulties presented, as
the Constitutional Convention of 1787 overcame those
confronting it.
I turn to some objections and caveats currently put
forward. First, it is said that nations are not ready to be
tied together in a complicated governmental organization
wholly new and untried. I answer that the important
matter is not how much but how little authority should in
the first instance be delegated to any such government.
It would seem that a very simple Bill of Rights—a power
to raise and support armies, a commerce power
analogous to that exercised in the United States by the
Congress, a power to create an international medium of
exchange, and a power to create a federal postal system,
would be essential, and that little, if anything, more
should initially be attempted; perhaps not so much.
It is said that any such project is but the mental
concept of the amateur and the naïve; that nations, other
than the existing democracies, would find the scheme
antithetic to their notions of government and
international relations and consequently would refuse
adherence to it. My answer is that, while we should
make the framework broad enough to permit the ultimate
entry of every nation which desired to join and was able
to institute a popular form of government approximating
our notions of democracy, we should not wait to organize
a supra-national government until all, or a great majority
of nations, were ready and willing to enter. Certainly the
people of the British Commonwealth of Nations and the
people of the United States would understand and readily
accommodate themselves to such an organization; and in
western Europe there are many more nations of which
the same may be said. These, if they keep the door open
24
Associate Justice Owen J. Roberts
to others of like mind, could, with the greatest
advantage, now amalgamate in an international
government. Indeed, it might be better that, in the first
instance, they alone should do so. This could be no
affront to other nations but, on the other hand, it would
have the enormous advantage of presently consolidating
international policy in respect of the postwar settlement.
It would obviate discrepancies and differences,
confusion and delay, and the inherent weakness which
follows from divided counsels.
Of a piece with the same criticism is the assertion
that nothing should be done towards postwar world
organization until after a long cooling-off period. In my
view, no doctrine can be more dangerous. When the war
ceases, great populations will be left without
government, without national solidarity, in utter
confusion with respect to the future. For the allied
nations to endeavor, by negotiation amongst themselves,
to provide a stop-gap while they jointly plan their future
course with respect to other nations and other peoples
will beget only discord, the emergence of the age-old
national jealousies and claims and result in an ultimate
settlement comparable to that at Versailles. If, when the
peace comes, a strong union of democracies speaks on
these matters with a united voice, and holds out even to
the conquered people of Europe opportunity for ultimate
partnership, under proper conditions, a very different
picture will be presented.
The last and most prevailing objection is that the
people of the democracies, and especially the people of
the United States, will never consent to surrender any
portion of the national sovereignty. If this objection be
valid, that ends the discussion. We may as well then
throw up our hands and let the world roll on into chaos.
Unless the United States espouses, and promptly and
Selected Speeches
25
vigorously urges, a project of world organization, none
such will reach fruition.
No plan of organization however apt, however
desirable, can have any chance of adoption or successful
operation unless it is backed by the sentiment of the
American electorate. The man in the street may not be
competent to judge of the details of such a plan. But he
is competent to comprehend the principles upon which a
union should be built. He is competent to envisage in a
broad way what it is he is willing to have his
Government adopt, what elements of national
sovereignty he is willing to surrender and to pool with
the peoples of other nations, and he is competent to say
whether he wishes his government to embark upon a
daring but hopeful experiment of world organization.
Unless the great majority of our people agree that
their chosen leaders shall adhere to an acceptable form of
world organization nothing can be accomplished. Our
national way is for the leaders, students, and experts to
impart to their fellow citizens their views and their
reasons for holding them, and thus promote sound public
opinion. Men like yourselves who must feel that this
war will be fought in vain unless we can win the peace
have a high duty to enter the forum of public opinion and
make your influence felt. And our nation will not take
her stand for unselfish and enlightened international
cooperation unless her leaders are convinced that it is the
will of an overwhelming majority of our people that an
appropriate organization be created to that end. Nor will
our leaders speak to the leaders of other nations with
authority unless the body of public sentiment in this
country gives assurance that what is agreed upon will be
carried out by our Government. It will be as unfair as it
will be fatal to leave our representatives in the equivocal
position in which President Wilson stood after the
26
Associate Justice Owen J. Roberts
proposal by him, and acceptance by our allies, of the
plan for the League of Nations.
Our obligation then is to arouse and enliven public
sentiment in this country in support of an integration of
our own and other nations in a world organization having
the purpose and the power to adjust the relations of the
peoples of the earth in accordance with the dictates of
justice, and to promote and, if necessary, enforce the
peaceful composition of all differences and disputes
which may occur.
Address at the Thirty-Ninth Annual Meeting
By Justice Robert H. Jackson ∗
Friday, April 13, 1945
Few groups are likely to assemble today that would
better know the shortcomings of international law than
this group which I am privileged to address. You are
aware of the confusions, of the incompleteness, of the
lack of ordinary sanctions, and of all that might be said
in criticism of international law. Yet here you are,
assembled in Washington, at no little personal
inconvenience, to reiterate your inveterate belief that
international law is an existing and indestructible reality
and offers the only hopeful foundation for an organized
community of nations. There is no paradox in this.
Those who best know the deficiencies of international
law are those who also know the diversity and
permanence of its accomplishments and its
indispensability to a world that plans to live in peace.
∗
Associate Justice, Supreme Court of the United States. Robert H.
Jackson (1892-1954) served as an Associate Justice of the U.S.
Supreme Court from 1941 to 1954 and as the Chief Prosecutor
before the International Military Tribunal at Nuremberg from 1945
to 1946. Justice Jackson had also been one of the primary architects
of the Nuremberg tribunal. Prior to joining the Court, Jackson was
closely linked to Franklin Delano Roosevelt, in whose
Administration he served as General Counsel to the Treasury
Department’s Bureau of Internal Revenue (1934-1936) and in
various positions in the Department of Justice (1936-1938), leading
up to being appointed Solicitor General (1938-1939) and then
Attorney General (1940-1941), during which time he managed,
among other topics, the legal and policy issues of the build-up of
U.S. forces and of assistance to Great Britain.
27
28
Associate Justice Robert H. Jackson
I am happy to join you in what amounts to a timely and
resolute confession of faith.
The bitter lessons of this decade could not fail to
arouse among Americans a broader and deeper interest in
the techniques by which conflicts between states may be
adjusted without war. We have been a freedom-loving
people. Our Constitution and our philosophy of law
have been characterized by a regard for the broadest
possible liberty of the individual. But the dullest mind
must now see that our national society cannot be so selfsufficient and so isolated that freedom, security, and
opportunity of our own citizens can be assured by good
domestic laws alone. Forces originating outside of our
borders and not subject to our laws have twice in my
lifetime disrupted our way of living, demoralized our
economy, and menaced the security of life, liberty, and
property within our country. The assurance of our
fundamental law that the citizen's life may not be taken
without due process of law is of little avail against a
foreign aggressor or against the necessities of war.
Either submission or resistance will take life, liberty, and
property without a semblance of due process of law. It
has been our boast and real achievement that the
individual in our country has been free to lead his own
life. But we look upon a whole generation of youths that
are given no choice as to what they will do with the best
years of their lives. One of the ominous signs of our
times is that the progressive mobilization of the
resources, manpower, and business of the country has
necessarily been accomplished at the cost of
surrendering or impairing one after another of our
traditional individual liberties. It ought to be clear by
this time that personal freedom, at least of the kind and
degree we have known in this country, is inconsistent
with the necessities of total war and incompatible with a
Selected Speeches
29
state of militarization to remain in constant readiness for
one. Awareness of the effect of war on our fundamental
law should bring home to our people the imperative and
practical nature of our striving for a rule of law among
the nations.
I am not one who expects the world to be remade by
a single document or a single conference, or in a single
decade, or even in a single century.
One who
contemplates the slow and evolutionary nature of all
advancement in the field of law will expect no miracles
now. It may be timely to recall Woodrow Wilson's
words to the International Law Society in Paris in 1919:
"May I say that one of the things that has disturbed me in
recent months is the unqualified hope that men have
entertained everywhere of immediate emancipation from
the things that have hampered and oppressed them. You
cannot in human experience rush into the light. You
have to go through the twilight into the broadening day
before the noon comes and the full sun is on the
landscape; we must see to it that those who hope are not
disappointed, by showing them the processes by which
that hope must be realized—processes of law, processes
of slow disentanglement, from the many things that have
bound us in the past." What wisdom was in these words
the world now knows.
But we are at this moment at one of those infrequent
occasions in history when convulsions have uprooted
habit and tradition in a large part of the world and there
exists not only opportunity, but necessity as well, to
reshape some institutions and practices which sheer
inertia would otherwise make invulnerable. Because
such occasions rarely come and quickly pass, our times
are put under a heavy responsibility. It is not enough
that we restore peace. Peace indeed is fast becoming
inevitable. When this war closes, sheer exhaustion of
30
Associate Justice Robert H. Jackson
resources and weariness of flesh will be enough to keep
a peace of sorts for perhaps twenty, twenty-five, or thirty
years. Our problem is how to rise above the temporary
pressures and irritations to long-range objectives.
All else will fail unless we can devise instruments of
adjustment, adjudication, and conciliation, so reasonable
and acceptable to the masses of people that future
governments will have always an honorable alternative
to war. The time when these institutions will be most
needed will probably not come until the names that
signify leadership in today's world will have passed into
history. I wrote that line before the name of our own
great leader had passed into history. Men now unheard
of will have pushed up into leadership of a new
generation that will have conflicts of interest and clashes
of ambition just as every generation before has done.
Advancement of civilization does not diminish, it rather
multiplies, the occasions and causes of serious dispute
among states. But they are less likely to break into war
among peoples whose habit it is to regard peaceful ways
of settlement as honorable and customary. Future
governments in time of threat and crisis will find it
possible to accept alternatives to war only if their
constituents consider that the peaceful alternative causes
no "loss of face." Governments in emotional times are
particularly susceptible to passionate attack in which this
emotion is appealed to, sometimes crudely and
sometimes by more sophisticated formulae such as
"impairment of sovereignty," "submission to foreign
control," and like shibboleths. We may as well face the
fact that it will not be enough to have a mechanism for
keeping the peace which a few scholars and statesmen
think well of. If it is really to work, it must have such
widespread acceptance and confidence that peoples as
Selected Speeches
31
well as philosophers support it as a thoroughly honorable
and reasonably hopeful alternative to war.
This leads me again to quote President Wilson's
words to the International Law Society in 1919.
"International law," he said, "has perhaps sometimes
been a little too much thought out in the closet.
International law has—may I say it without offense?—
been handled too exclusively by lawyers." If I were to
add to his statement, I should say, "It has been handled—
and not from any fault of their own—by a too exclusive
group of lawyers." Our membership list, which I take to
be some index of interest in the subject, indicating at
least those who keep informed through our excellent
Journal, leads to the conclusion that our society is a
rather exclusive group. Some perhaps think it is a
society of Brahmins, but it would be nearer the truth to
say that it is a collection of pariahs. The fact is that very
few judges of our high courts, a small proportion of our
lawyers, a good representation of schoolmen, and a
sprinkling of laity comprise the group that gives
sustained attention to developments in the field of
international law. In some degree this is inevitable. But
certainly far too many think of international law as a
speculative avocation, completely forgetting that from
the beginning the Supreme Court has held customary
international law to be part of the law of the land, as
treaties are declared to be by the Constitution.
The profession generally has, I think, vaguely
realized and appreciated the work of the Permanent
Court of International Justice in the few but important
cases that have been submitted to it. But to most of the
bar such international tribunals as we have had were
inaccessible professionally as well as geographically and
bore little on the profession's work-a-day problems.
While private claims based on alleged violation of
32
Associate Justice Robert H. Jackson
international law or treaties are numerous, no permanent
judicial machinery has been available for their
adjudication. We still leave the traveler, the business
man or the owner of property in a foreign country who
suffers a violation of international law or treaty rights
pretty much in the unhappy position of having no sure or
easy remedy and the bar still thinks of them as the affair
only of diplomats. Claims commissions have settled
many such disputes, of course, and the problem of
providing judicial remedies is receiving more thought
than ever before.
It seems to me that we now have an opportunity, not
likely soon to recur, to bring international law out of the
closet where President Wilson found it and impress it
upon the consciousness of our people. At no time have
the materials of persuasion been more abundant or more
compelling. I should not be greatly surprised if today the
people are not actually less timid on the subject than
those who should lead in this field. I would expect a
pretty general response in the United States to bold but
sober efforts to increase the resort to techniques of
arbitration, adjudication, and conciliation in the future
world organization. The trouble has been that the
advocates of international law have had too little of what
Mr. Justice Holmes called "fire in the belly," while the
extreme nationalists have had too little else.
It is important that we do not allow the assumptions
that lie at the foundation of any worthwhile international
judiciary to become obscured in issues or pressures
about details. These are not unimportant matters, but
they are subsidiary to what I consider the great principles
on which an international tribunal must be based. It is
undeniable that wide difference of philosophy exists
among judges and lawyers within the United States as
well as among different national groups as to the
Selected Speeches
33
appropriate function of courts in society. AngloAmericans and many others generally have adhered to
the concept of a court as an independent body which
neither serves nor controls policy and whose members
owe a duty to truth in fact-finding and to the science of
law in decision that transcends any duty to nation, to
class, to governments, or to party. That ideal, needless to
say, is not always attained even among those who
profess it, but by and large it has represented the ideal
which the legal profession has tried to approximate in
practice. It would, however, be unwise to overlook that
this is quite contrary to the concept prevailing among
nearly all of our enemies, among some of our allies and
some neutrals, and beginning to have a considerable and
influential school of thought in the United States. They
think of courts as dependent and controlled arms of the
policy-making part of government, as legitimate
instruments to promote policy, and as bodies whose factfindings and decisions may properly reflect the national
interest, the class or party interest which is responsible
for their creation, as the case may be. It would be very
difficult for an international court long to succeed if such
irreconcilable conceptions of its character and function
continued to divide the powerful constituents of our
international organization.
It seems to me that much hinges on acceptance of the
concept of the Court as an independent body above
obligation to any nation or interest. I do not see how we,
or any nation of like philosophy, could submit
controversies to a court otherwise conceived, and
certainly we could not concede any measure of
compulsory jurisdiction to it. Nor do I see how any
reputable professional man of the Anglo-American
tradition could lend his name to a tribunal not of that
character. Of course we deal here with a difficult point
34
Associate Justice Robert H. Jackson
because it is so little a matter of the statute creating the
Court and so much a matter of the spirit of the judges
and the foreign offices and of prevailing attitudes among
peoples.
It is a plain corollary of the principle that courts must
not be swayed by policy, that they must not decide
matters of policy. It is difficult to say that a nation, class,
or party is not justified in trying to control in the interests
of its policy those institutions which try to share policy.
This reason leads me strongly to approve Paragraph 56
of the Report of the Informal Inter-Allied Committee
from which I quote: "Nothing seems to us more
important, from the point of view of the prestige of the
Court and of enabling it to play its proper part in the
settlement of international disputes, than that its
jurisdiction should be confined to matters which are
really `justiciable,' and that all possibility should be
excluded of its being used to deal with cases which are
really political in their nature and require to be dealt with
by means of a political decision and not by reference to a
court of law." 45 Words of wisdom, if any such were ever
spoken. This principle leads to some doubts as to
advisory opinion jurisdiction which, if retained, as
probably it should be, should at least be carefully
circumscribed and cautiously exercised. But in all
events the Judges must be above policy pressures by airy
45
Justice Jackson was referring to the Report of the Informal InterAllied Committee on the Future of the Permanent Court of
International Justice, 39 AM. J. INT’L L. 1, 17 (supp. 1945). The
Informal Inter-Allied Committee was created in 1943 to consider the
future of the Permanent Court of International Justice through its
existing statute or the possibility of creating a new court to function
in its place. It was composed of delegates from Britain, Belgium,
Canada, Czechoslovakia, France, Greece, Luxembourg, the
Netherlands, New Zealand, Norway, and Poland.
Selected Speeches
35
nation and can claim that immunity only so long as they
are free from exerting policy pressures.
I am not stressing this difference of opinion about the
function of courts in criticism of our allies or in rancor
toward our enemies. Always among them have been
scholars and jurists who hold to the ideal of an
independent bench. And among us, also, there are some
who candidly would use courts as an instrument of
power and many more who favor all of the premises of
that philosophy without recognizing the conclusion to
which they lead. The ease with which men thoughtlessly
fall into step with this philosophy is strikingly
demonstrated by the attitude of many people toward the
trial of war criminals.
I have no purpose to enter into any controversy as to
what shall be done with war criminals, either high or
humble. If it is considered good policy for the future
peace of the world, if it is believed that the example will
outweigh the tendency to create among their own
countrymen a myth of martyrdom, then let them be
executed. But in that case let the decision to execute
them be made as a military or political decision. We
must not use the forms of judicial proceedings to carry
out or rationalize previously settled political or military
policy. Farcical judicial trials conducted by us will
destroy confidence in the judicial process as quickly as
those conducted by any other people.
Of course, if good faith trials are sought, that is
another matter. I am not so troubled as some seem to be
over problems of jurisdiction of war criminals or of
finding existing and recognized law by which standards
of guilt may be determined. But all experience teaches
that there are certain things you cannot do under the
guise of judicial trial. Courts try cases, but cases also try
courts.
36
Associate Justice Robert H. Jackson
You must put no man on trial before anything that is
called a court, if you are not prepared to establish his
personal guilt. I do not, of course, mean that every step
must be taken in accordance with technical common-law
rules of proof. The evidence to be received depends
upon what the circumstances make available. But there
is no reason for a judicial trial except to reach a
judgment on a foundation more certain than suspicion or
current rumor. Men of our tradition cannot regard as a
trial any proceeding that does not honestly search for the
facts, bring forward the best sources of proof obtainable,
critically examine testimony. But, further, you must put
no man on trial if you are not willing to hear everything
relevant that he has to say in his defense and to make it
possible for him to obtain evidence from others.
Nothing more certainly discredits an inquiry than to
refuse to hear the accused, even if what he has to say
borders upon the immaterial or improbable. Observance
of this principle is of course bound to make a trial
something of a sounding board for the defense. We all
remember the war-guilt trials which were begun by the
Nazis and their collaborators in France. The Court was
at once put to the choice of suppressing the defense or of
allowing the trial to become an instrument for
disseminating the views of the accused. Any United
Nations court that would try, say, Hitler or Goebbels
would face the same choice. That is one of the risks that
are taken whenever trials are commenced. The ultimate
principle is that you must put no man on trial under the
forms of judicial proceedings if you are not willing to
see him freed if not proven guilty. If you are determined
to execute a man in any case, there is no occasion for a
trial; the world yields no respect to courts that are
organized merely to convict. I am not arguing against
bringing those accused of war crimes to trial. I am
Selected Speeches
37
pointing out hazards that attend such use of the judicial
process—risk on the one hand that the decision which
most of the world thinks should be made may not be
justified as a judicial finding, even if perfectly justified
as a political policy; and the alternative risk of damage to
the future credit of judicial proceedings by manipulations
of trial personnel or procedure to invest temporarily with
judicial character what is in fact a political decision. I
repeat that I am not saying there should be no trials. I
merely say that our profession should see that it is
understood that any trials to which lawyers worthy of
their calling lend themselves will be trials in fact, not
merely trials in name, to ratify a predetermined result.
Brother Coudert 46 belabored the pessimists, and I
shall take on the cynics. Of course there is a school of
cynics in the law schools, at the bar and on the bench
who will disagree, and many thoughtless people will see
no reason why courts, just like other agencies, should not
be policy weapons. It is a popular current philosophy,
with adherents and practitioners in this country, that law
is anything that can muster the votes to be put in
legislation, or directive, or decision and backed with a
policeman's club. Law to those of this school has no
foundation in nature, no necessary harmony with higher
principles of right and wrong. They hold that authority
is all that makes law, and power is all that is necessary to
authority. It is charitable to assume that such advocates
of power as the sole source of law do not recognize the
identity of their incipient authoritarianism with that
which has reached its awful climax in Europe.
46
Concerning Frederic Coudert, see supra note 43 accompanying
the Address by Justice Owen Roberts.
38
Associate Justice Robert H. Jackson
But we can have nothing in common with the cynics
who would have us avoid disillusionment by having no
ideals, who think that because they do not believe in
anything, they cannot be fooled. We must keep the faith
roughly stated by Lord Chief Justice Coke that even the
King is "under God and the law." I confess even to midVictorian romanticism which believed that "Thrice
armed is he whose cause is just." Of course, these are
difficult concepts for the most wise to delimit and apply
and easy for the most shallow to ridicule. But unless
there is something of substance in those teachings, there
is nothing to law except the will of those who have the
power.
It is chiefly those who hold this idea of law who
belittle international law because, they say, it lacks
formal commitments of force to back up its precepts.
This attitude, which considers itself a very practical one,
I think misconceives the nature of law, the almost
inevitable character of so many of its principles in a
world ordered by any semblance of reason, and the
influences which give law acceptance, vitality, and
authority. The fact that a principle of international law
does not readily translate into a court mandate, with an
executive power committed faithfully to execute it does
not mean that it may with impunity be violated. Twice
Germany has demonstrated that flagrant disregard of
international law will call into being an ad hoc
international police force for its vindication. In August
1914, Von Bethmann-Hollweg 47 stood before the
German Reichstag at the beginning of a war in which
Germany held every card but one. He confessed the lack
47
Theobald von Bethmann-Hollweg (1856-1921) served as
Chancellor of Germany from 1909-17.
Selected Speeches
39
of that one. He said, "Gentlemen, we are now in a state
of necessity, and necessity knows no law. Our troops
have occupied Luxembourg; perhaps they have already
entered Belgian territory. Gentlemen, this violates the
rules of international law…The wrong—I speak
openly—the wrong that we now do, we will try to make
good again, as soon as our military ends have been
reached."
Bethmann-Hollweg's miscalculation consisted of
believing that international law was backed by no force
because no such force was then visible. But he was at
least intellectually honest enough to know legal right
from legal wrong. His successors belong to the school
which denies there can be a legal wrong if it has the
votes or the artillery on its side. By every calculation
based on naked force Germany should sit astride the
world today. But lawlessness, violations of what plain
people think of as "rights"—rights of minorities, rights
of individuals, rights of peaceful nations—have twice
roused moral forces which have supplied the military
force to undo German might. Nothing disintegrates
power like lawlessness, nothing makes force so effective
as the sentiment of people that it is somehow defending
the right and is exercised in harmony with the higher
moral values. So I think we need not worry too much
about absence of sanctions for international law or let
disputes as to details obscure the ultimately important
things. We may go forward on the assumption that
reason has power to summon force to its support,
confident that acceptable moral standards embodied in
law for the governance nations will appeal to the better
natures of men so that somehow they will ultimately
vouchsafe the force to make them prevail. If this were
not so, the quicker "civilization" were blown to bits, the
better.
40
Associate Justice Robert H. Jackson
It is futile to think, as extreme nationalists do, that
we can have an international law that is always working
on our side. And it is futile to think that we can have
international courts that will always render the decisions
we want to promote our interests.
We cannot
successfully cooperate with the rest of the world in
establishing a reign of law unless we are prepared to
have that law sometimes operate against what would be
our national advantage. In our internal affairs we have
come to rely upon the judicial process to settle individual
controversies and grievances and even those between
states of the Union, not because courts always render
right judgments, but because the consequences of wrong
or unwise decisions are not nearly so evil as the anarchy
which results from having no way to obtain any decision
of such questions; in which case each will take the law
into his own hands. And in a somewhat similar sporting
spirit we must look upon any international tribunal, not
as one whose decision always will be welcome or always
right or wise. But the worst settlement of international
disputes by adjudication or arbitration is likely to be less
disastrous to the loser and certainly less destructive to
the world than no way of settlement except war. And we
will not suffer the worst of decision, but will benefit
from the judicial process at its best if we insist upon the
independence and intellectual integrity of any
international tribunal which purports to arbitrate or
adjudicate controversies between states. I always have
found a great measure of professional pride and
inspiration in the story I have heard and often repeated
about Lord Alverstone. 48 In the Alaskan Boundary
48
Richard Everard Webster (1842-1915), 1st Viscount Alverstone,
was a British barrister and judge who became Lord Chief Justice of
England in 1900. In 1903, he served on the Alaska Boundary
Commission mentioned here.
Selected Speeches
41
dispute between the United States and Great Britain, an
arbitration commission was set up, consisting of an equal
number of nationals of each. Of course no decision
could be reached unless at least one arbitrator voted
against the interests of his own country. It so happened
that Lord Alverstone, named to the commission by Great
Britain, joined in an award in favor of the United States.
The storm of criticism among his countrymen was fierce.
The answer attributed to Alverstone embodied in few
words about all that I have taken a half hour to say. It
was an attitude followed by Mr. Justice Van Devanter, 49
who joined in deciding a later arbitration against the
United States. It is, I think, the shortest explanation of
the success with which this country and Great Britain for
well over a century have been able to settle their
differences by peaceful means. Alverstone's reply to
criticism was simply, "If when any kind of arbitration is
set up they don't want a decision based on the law and
the evidence, they must not put a British judge on the
commission." That is the spirit in which disputes
between states or between individuals must be decided,
and the spirit in which decisions must be accepted, if the
world is ever truly to be ruled by law instead of by the
wills of men in power.
49
Willis Van Devanter (1859-1941) was an Associate Justice on the
Supreme Court from 1911 through 1937.
Keynote Address at the Forty-Third Annual Meeting
By Justice Robert H. Jackson*
Saturday, April 30, 1949
Mr. President, Ladies and Gentlemen: It is an
occasion that none of us would want to miss when the
scepter passes from Columbia to Harvard. It is about
time these Harvard boys get some recognition
somewhere in Washington. I may say to those of Judge
Hudson's 50 colleagues from across the ocean that it has
long been regarded as one of their great handicaps here,
that the Harvard boys have a collective sense of
inferiority which holds them back. Now that Judge
Hudson has been duly recognized and supersedes
Columbia, I am sure they will overcome that handicap.
The way Manley "scotched" that rumor is unique.
Nothing nourishes a rumor in Washington as much as
Scotch.
∗
Associate Justice, Supreme Court of the United States. See supra
biographical note in Address at Thirty-Ninth Annual Meeting at p.
27.
50
Manley O. Hudson (1886-1960) was Bemis Professor of
International Law at Harvard. His experiences include being part of
the American negotiating team at Versailles in 1918-19, being a
member of the Permanent Court of Arbitration from 1933 to 1945
and being elected to a seat on the Permanent Court of International
Justice in 1936. Hudson edited the International Legislation series as
well as World Court Reports and was author of The Permanent
Court of International Justice, 1920-1942 (1943), a leading treatise.
Hudson was President of the ASIL from 1949 to 1952. See, In
Memoriam:, Manley O. Hudson (1886-1960), 54 AM SOC. INT’L L.
PROC. 223 (1960); see also, Philip C. Jessup, Manley Hudson, 54
AM. J. INT’L L. 603 (1960).
43
44
Associate Justice Robert H. Jackson
You see a comparison of the two occasions—one,
when he brought his clothes and did not get the office,
and the other, when he did not bring his clothes and did
get the office—shows how he is improving his
technique. It is really well-standardized practice here for
candidates to disclaim all of the offices that are not
offered to them. That is one of the best ways of making
sure that you succeed, and I congratulate you, Manley,
on the improvement that comes with experience.
This Society is entitled to great credit for keeping
alive—I might almost say arousing—in the part of the
members of the Bar and others, an interest in
international law at a time when appreciation of its
importance was at very low ebb. As things are today,
people have a greater awareness—and particularly
members of the profession—that it is not enough to have
good solid domestic institutions unless the international
situation permits you to enjoy those institutions and to
develop them in peace and in cooperation with other
peoples. But I think that appreciation of international
law as a means to a better international society was kept
alive by this Society at a time when almost no other
group in our country, outside of the schools, was doing
so.
After three days of constant discussion of
international law problems, I suppose it would be a great
relief to turn to something else, but I think perhaps you
can endure a little more of it if it is not too heavy and
quite informal.
I have been wondering what hope there is that
international law can develop in the period that is
immediately ahead of us, how some method can be
worked out by which international legal controversies
can be better resolved. Certainly this is no time to give
up in discouragement, but also there is no occasion to
Selected Speeches
45
fail to recognize the great difficulties that face us in the
immediate future. I suppose what really makes a
principle a law is its acceptance as such by the informed
part of the population. We have known of decisions by
courts that somehow or other did not get accepted by the
profession. They were not cited; they were not well
regarded; and they did not contribute anything to the law.
And we know of statutes that have been on the books
with all the formality of law, but somehow or other they
have no vitality. I was told the other day of one in the
State of Maryland which makes it a penal offense for any
person in that Free State to serve diamond-back terrapin
to his servants more than three times a week. Some way
or another such laws become obsolete.
Even
constitutional provisions, such as our arrangements about
the Electoral College, lose vitality unless they are
accepted by the current generation; they must not only be
accepted by the profession, but they must be accepted by
the people working in the fields where they are given
practical application.
For a long time any principle could be regarded as
international law if it was accepted as such by a
consensus of the Western world. Not very much account
was taken of opinion outside the circle of nations that
made up Western culture. They had their ancient
cultures and views and interests, but frankly they were
not counted for much by us. It was our circle of what we
might call the Atlantic nations which made what we
referred to as international law. Now we face a different
situation. The balance of power has so shifted that
certainly we must take into account, if there is to be
progress in the next few years, views of people who have
heretofore not counted so much.
This necessity raises some difficult problems. Most
of them are not problems exclusively for lawyers; they
46
Associate Justice Robert H. Jackson
are problems for the diplomats, but nevertheless they are
problems that concern lawyers, at least in the field of
international law.
The time when we could think about the world as
one world, if there ever was a time when we should have
done so in a cultural sense, is past. It was never true in
any sense except in that of geography. Instead of
meaning that we are all one people, about all there is left
of the one- world idea is that there is only one world in
which we all have to dwell and there is no place to go to
get away from the people we find it difficult to get on
with here.
The East and the West are not one people in the sense
of legal concepts and institutions. For the next few
years, assuming that we are to have a world in which any
progress can be made other than military progress, the
problem is whether the East and the West can find
common meeting ground on which they can join in
making better international institutions and international
law. There are many methods of cooperation, and none
of them, of course, should be neglected. Some of them
do not appear too hopeful at the present time.
One possibility is treaties, but even tonight we have
no treaties which establish peace even if we have no
condition which can exactly be called war. We cannot
say that the future of treaty-making is especially hopeful.
Custom and practice tend to establish themselves as
law, but here we are faced with diversity of custom and
practice and a partner in the power that governs the
world that does not share in many of the concepts that
rule us in the West.
There are high expectations from efforts at
codification of law. The great difficulty, as I see it, is
that codification has never yet come out of people's
imaginations; it has come out of their experiences.
Selected Speeches
47
Codification, therefore, is one of the last ways in which
law develops. In some of our law societies efforts have
been made to codify the law merchant. There was an
enormous experience to draw on. Innumerable cases had
arisen and been decided by the courts, and the problems
and the answers that judges had given to those problems
from time to time guided those who would attempt
codification. Drawing on such experience, lawyers can
write codes, but codes do not spring full-fledged from
men's minds. The difficulty with codification as a joint
effort with the Eastern Powers is that we do not have
enough common experience on which we can draw. Our
experience is more or less strange to them and theirs is
certainly strange to us. In the absence of that experience,
codification is a very difficult task. I had some little go
at it in London—not too comprehensive—in the effort to
lay a basis on which the Four Powers could cooperate in
conducting a criminal trial, probably the most difficult
kind of a trial to agree upon. Out of it some small
problems arose that indicate the difficulty we will have
in working out common principles of law. I do not think
it is impossible, but there are difficulties that we may as
well face up to.
If it is true, as the history of English and American
law would seem to prove, that a great accumulation of
experience precedes much success at codification, then
the problem becomes that of whether we can work out a
case-to-case experience with the Eastern Powers. Of
course, we all know that international courts have
functioned and are functioning with success. We know
some experience is being accumulated in that way. In
the trial of the top Nazis we made some effort at
unusually intricate international judicial proceedings.
We had some difficulties—some painful difficulties—
and we had some successes in spite of that. I think from
48
Associate Justice Robert H. Jackson
those endeavors we can draw some lessons as to the
difficulties of cooperation. I will tell you a few of them
that struck me as indicating the most serious chasms that
we have to bridge if we are to reach understanding with
the Soviet people on the subject of international law.
What I have to say is all old. The material can be
explored better than I can give it to you, because Mrs.
Douglas’ stenographic notes of the London Conference
have been published by the State Department and show
in detail the difficulties we had to overcome in order to
reach agreement on how to conduct the trial. 51 The basic
difficulty in cooperating in legal matters with the Soviet
Union is that the Soviets have a fundamentally different
conception of the function of the judicial institution.
That difference runs through nearly all of the difficulties
that we had in cooperating at Nuremberg. I do not need
to tell you the Soviet concept of a court. You have seen
evidence of it. Their writers are entirely frank about it.
Their basic concept of a court is an institution that is an
instrument of power in the hands of the ruling class.
That, says Vishinsky 52 in his book recently published in
the United States, is the concept to which we adhere.
51
In June 1945, representatives from the four Allied powers
convened in London to define the rules and procedures of the
International Military Tribunal that would be convened at
Nuremberg.
52
Andrei Y. Vishinsky (1883-1954) was a Soviet diplomat and jurist
who represented the USSR in the London Conference as the Deputy
Commissar on Foreign Affairs. He had previously been prosecutor
in Stalin’s show trials. From 1949-1953, Vishinsky was the Foreign
Minister of the USSR and then in 1953 became the Permanent
Representative of the USSR to the United Nations. See “Vishinsky,
Andre Yanuarievich,” THE COLUMBIA ENCYCLOPEDIA (2001-05)
available online at http://www.bartleby.com/65/vi/Vishinsk.html.
Selected Speeches
49
Some time ago the Soviet Government refused to
refer a case to judicial settlement upon the ground that it
would result in a political decision. Of course, under
their concept of a court, they would expect a political
decision, because they do not recognize the existence of
any other kind of courts. That was one of the first things
we encountered in trying to work out some arrangement
with them. They said that all that was necessary was that
the judges should see the defendants and take a little
evidence on the subject of sentence. They were already
pronounced guilty by Churchill and Stalin and
Roosevelt. We convinced them that Mr. Roosevelt could
accuse, but he could not convict; that the same was true
of Mr. Churchill. We did not attempt to define Mr.
Stalin's powers. They finally agreed that the tribunal
should make an independent judgment as to guilt or
innocence as well as sentence. I have no reason to
believe that they did not agree to it in good faith;
nevertheless, all through the proceedings ran the
difficulty that they could not understand our concept of a
court as an independent institution, and there are pages
and pages in the volume recently published by the State
Department in which we attempted to explain to them
the British and the American and the French concept of a
court, but without too much success.
The lack of success is indicated by what happened
one day at the trial when I had suggested to the
representatives that a memorandum be prepared by the
representative of each prosecuting country of the points
on which he might expect the German counsel to attack
his own country's behavior, and that the memorandum
should set forth the position he wished to take as to the
attack. I pointed out we did not consider ourselves
bound to defend all of the positions which other parties
might take, but that we would like to know what their
50
Associate Justice Robert H. Jackson
positions would be, so that we at least would not
unnecessarily become entangled in controversy. The
British thought that was a good thing and they produced
a memorandum; the French prepared a memorandum.
The Soviets asked for a postponement. A few days later
the Soviet representative came in and asked for a
meeting. We got together and he pounded the table and
said, "What we have to do is each representative get hold
of his judges and make them agree that they would not
let such a question come up."
I referred the matter of answering them to Sir David
Maxwell Fyfe, 53 who did it very well; but I think
General Rudenko 54 is still of the opinion that we were
remiss in our duties in not controlling the judges.
If you cannot have international acceptance of the
idea of a court that is above serving in its findings of fact
and its decisions on questions of law the particular
interests that create the court, then I do not see any
possibility of working out common judicial experience.
No court achieves in actual practice the high level of
detachment from interests that we like to think of as
ideal. I suppose if you could achieve an ideal, it would
cease to be an ideal. I think we would all admit that in
our American practice much is left to be desired by way
of detachment even in the best of our judicial work. We
53
Sir David Maxwell Fyfe (1900-1967) was technically the Deputy
Chief Prosecutor for Great Britain at Nuremberg but he was the de
facto Chief Prosecutor for the British, as the nominal Chief
Prosecutor for the British was only involved in the opening and
closing statements. Fyfe is remembered in particular for his crossexamination of Herman Goering. He later served as Home Secretary
(1951-54) and as Lord Chancellor (1954-1962).
54
General Roman Andreyevich Rudenko was Chief Prosecutor for
the USSR at Nuremberg. He subsequently was the Soviet Prosecutor
General from 1953 until his death in 1981.
Selected Speeches
51
are all creatures whose views are conditioned by our
prejudices and interests, and we know the weaknesses of
our own system; nevertheless, it is a constant ideal with
us that, when a man sits in judgment, he shall exercise
his own judgment as to applying the law to the facts and
not merely serve the interests that put him on the bench.
Our country has engaged in several international
arbitrations. You men know better than I do about those.
You have read their history more patiently than I have, I
am sure. In some of those arbitrations we started out
with the assumption that an arbitrator would have to vote
against his own country, because we set up tribunals of
equal numbers of nationals of each of the disputing
countries. If someone did not vote against the interests
of his own nation as represented at the bar, no judgment
could be rendered. We have had instances of that kind
where a judge on examining the evidence came to the
conclusion that his own country was wrong and voted
against it.
But that is a conception of the judicial institution that
our Soviet friends do not share, neither do the Marxists
generally. Those in this country do not. It is completely
basic to any success, in my judgment, of arbitrations or
of judicial institutions. In the attempt to function both
for the East and the West, that difference of viewpoint
creates a very great handicap on the development of a
common experience which would enable us to work out
a common international law.
This different view of the way the courts should
function ran, of course, to the subject of procedure.
Soviet lawyers thought that the court, being a
representative of the national authorities creating it,
should run the proceedings; that is to say, they believed it
was not an adversary proceeding but an inquest. They
would apply their own procedure by which there was
52
Associate Justice Robert H. Jackson
very little that the attorneys would do, but the judges
would conduct the examinations and cross-examine. I
have explained a number of times how that worked out
and it shows you how common experience with concrete
things is possible, how cooperation can be achieved.
When the Soviet representatives found out how crossexamination worked, they loved it. Just like every
amateur lawyer, they thought that was the finest kind of
sport. But they asked questions in a way that was
sometimes most dangerous. If the case had not rested so
much on documents, I think I would have had a stroke
on several important occasions. They would thrust a
document in front of the witness and say, "I show you
General Order No. 905. Is your reaction positive or
negative?"
I never tell that on the Soviet counsel without also
telling about the German counsel who also was
inexperienced in cross-examination. We had called a
witness who gave very damaging testimony as to a
number of the defendants. He had not, however,
mentioned Kaltenbrunner.
Kaltenbrunner was a
disbarred Austrian advocate who ran the concentration
camps in the later days of the Nazi regime. His lawyer
got up to cross-examine and we could not imagine what
he was going to ask about, for the witness had not
mentioned his client and a witness cannot do a defendant
much less harm than that. However, he went to the
microphone and said in a gruff, emphatic way, "You have
not mentioned my client Kaltenbrunner." "No," said the
witness. "Do you know Kaltenbrunner?" "Oh, yes," said
the witness. "I met Kaltenbrunner on the afternoon in
which he had executed those students who circulated the
petition at the university." And he went on to give the
damaging details of Mr. Kaltenbrunner`s behavior after
executing the students. The German counsel said,
Selected Speeches
53
"Thank you," and sat down. I have never been able to
figure out what he thought he had accomplished.
It all goes to the point that you have to have common
ideas about the functions of courts and arbitration bodies
and other fact-finding and law-deciding groups among
those who are going to share in the kind of experience
which builds up a body of law. I do not want to be too
pessimistic; I think that there is a great deal more in
common and a great deal more possibility of working
these things out even with the Soviets than some people
believe. I believe, too, that in the Soviet Union there are
many people who want to understand our institutions and
want to learn more about them. We have to recognize
that they are a people who started at least three hundred
years behind us. Their legal profession, which was at
first abolished under the Revolution and then restored
when they decided they had to have some lawyers after
all, is trying, within very difficult limitations, to work
out a better Soviet law. But they come to the work
handicapped not only by starting so far behind, but with
no tradition of liberty and freedom of action, no Bill of
Rights, no Declaration of Independence, no Declaration
of the Rights of Man, no heroes who are heroes because
they fought for liberty. They have an authoritarian
background, a totally different foundation on which to
build.
We know that they have difficulty in comprehending
our attitude toward authority and toward law and toward
our freedoms. I have spent some hours discussing such
things as freedom of the press. Soviet representatives
came to me from time to time with items from American
newspapers and said to me, "Look at this. Why does
your Government permit this? This is an unfriendly act
to our Government. It isn't true." I had to admit a good
deal of it was not true.
54
Associate Justice Robert H. Jackson
"Why do you permit it?" I thought I would pacify
them. I had plenty of material. So I gave them clippings
to show what the newspapers said about me. They could
not comprehend it. "Does your Government send you
over here and let this be published about you?"
"Certainly." "Well, it isn't true." "No, it isn't true." "Is
your freedom of the press there freedom to lie about
people engaged in the work of the Government?" I had
to admit it is.
You get into some difficult corners defending some
of your own doctrines as against the questions of those
people who are not familiar with it. It is very difficult to
make them see that in the long run people do come to
understand; they do not have the view of Lincoln that
you can fool some of the people some of the time and
some of them all the time, but you cannot fool all of
them all the time. That is a sort of philosophy that they
do not have and cannot understand.
I am sure that the legal professions of these nations
have more things in common than they have in
antagonism. When you get through all of these
difficulties about procedure (and procedure is the worst
thing to get lawyers ever to agree on), when you get the
substantive doctrines as to what is right and fair between
man and man, you find a great body of legal opinion that
it would not be difficult for us to assimilate or work with.
I wish we had more means by which to learn each other's
legal systems.
I think that meetings such as we are attending, in
which we go over legal problems, are of great benefit in
settling what will be accepted as law. Unfortunately, in
the Communist countries they do not have this kind of
free meeting. If they could meet together, if we could
establish communication between the professions of the
two countries on a basis that was free from political
Selected Speeches
55
sparring, I think we would find that there is a great deal
of common ground. I do not know whether there is
enough common ground to keep the peace, but certainly
our professions must do the best we can to preserve
every inch of common ground that there is and to extend
it at any opportunity by engaging in every cooperative
enterprise that has to do with legal matters to the end that
we may understand them better and they may understand
us better.
Address at the Forty-Sixth Annual Meeting
The United Nations Organization and War Crimes
By Justice Robert H. Jackson*
Saturday, April 26, 1952
It is the distinction of this Society to have fostered,
even during discouraging times, American faith in the
ultimate supremacy of law in the international field. This
is our native, and I trust not too naïve, hope. We have a
deep-seated craving for legitimacy. By the nature of our
federal system of government, legal doctrine is woven
into the fabric of our political thought. We loathe war
guilt. Our loathing for guilt of unjust war has many
times influenced our foreign policy. Our forefathers
began it by appealing to the "laws of nature and of
nature's God" to legitimatize their Revolution. In 1812,
they felt they were resisting unlawful impressments of
American seamen. Both the Union and the Confederate
sides in our Civil War sought to justify their belligerence
by Constitutional doctrines. Our participation in World
War I was substantially attributable to a legal philosophy
about freedom of the seas. The illegality of Hitler's
resort to war as an instrument of policy was the legal
concept on which this Government discriminated
between belligerents and sent lend-lease and other aid to
those who resisted his military aggressions. We are now
bearing the brunt of hostilities in Korea, our participation
predicated in large part upon the legal proposition that
the Communist aggression is a flagrant violation of
international law.
* Associate Justice, United States Supreme Court. See biographical
note in Address at Thirty-Ninth Annual Meeting at p. 27.
57
58
Associate Justice Robert H. Jackson
If aggression is so wrong that international law calls
upon our youth to die in remote parts of the world to stop
it, these innocents have, I submit, a moral right to ask,
"What will you do about those persons guilty of it?"
The response to the question by the General
Assembly of the United Nations Organization was to
affirm "the principles of international law recognized by
the Charter of the Nuremberg tribunal." Its International
Law Commission then formulated what it considered to
be those principles, but felt constrained not to express
any appreciation or appraisal of them.
An attack upon the United Nations' decision has
recently been made by Viscount Maugham, former Lord
Chancellor of Great Britain, 55 who appeals to the United
Nations to retreat from the Nürnberg Charter principles.
His objection, if I read aright, is not so much to what
actually was done at Nürnberg a as to what he thinks the
text of the Charter would have permitted. In his own
words:
It is when an attempt is made to derive from the
Nuremberg Charter and Judgment general
principles to guide the nations in the event of
future wars that persons skilled in international
law must cry a halt. b
His cry, however, is based upon a misunderstanding
of the intent of the Charter of London which I wish to
55
Frederick Herbert Maugham (1866-1958), a British lawyer and
judge, served as Lord Chancellor from 1938 to 1939. Besides
Maugham’s book, to which Justice Jackson cites in his endnotes, see
also Frederick Maugham, Correspondence: Lord Maugham on
U.N.O. and War Crimes 28 INT’L AFF.(Royal Inst.of Int’l Aff.) 410
(1952).
Selected Speeches
59
correct in the interest of historical truth. His claim is that
the London Charter, by the breadth of its definition,
made a war criminal of every person who served
Germany in the war, even as a conscript, because the
definition of crimes against peace includes "waging of a
war of aggression." More than twenty times in a
hundred pages the idea is repeated that "waging" war
includes everybody "from Field Marshal to the last
joined recruit, from Lord High Admiral to the humble
snotty or seaman." c
Lord Maugham`s construction strains the text, which
is not the way definitions of crime are usually to be read.
It never occurred to me, and I am sure it occurred to no
one else at the conference table, to speak of anyone as
"waging" a war except topmost leaders who had some
degree of control over its precipitation and policy. He
admits that in practice this definition was never given his
extravagant construction, that the prosecution indicted
only the very highest leaders, and that the Tribunal
convicted only those proved to be knowingly responsible
for aggression. The author also complains that such
authorities as Secretary General Trygve Lie d and
Professor Sheldon Glueck, e as well as the International
also
disagree
with
his
Law
Commission, f
interpretation. 56 Lord Maugham seems to miss a logical
56
Trygve Lie (1896-1958) was a Norwegian politician and the first
Secretary General of the United Nations. Among various posts in
Norway, Lie had been the Minister of Justice from 1935-39. Lie,
Tygve Haldan, THE COLUMBIA ENCYCLOPEDIA (6th ed. 2005); see
also, Stephen M. Schwebel, Book Review: Trygve Lie and the Cold
War. The UN Secretary-General Pursues Peace, 1946-1953, 85 AM.
J. INT’L L. 209 (1991).
Sheldon Glueck (1896-1980) was a criminal law professor at
Harvard Law School who specialized in studying criminal behavior
and the effects of correctional treatment.
60
Associate Justice Robert H. Jackson
inference from the fact that nobody agrees with his view
of the matter. It may be he, rather than everyone else,
who is out of step.
The International Law Commission considered the
words "waging of a war of aggression" and reported that
"it understands the expression to refer only to highranking military personnel and high state officials." I
bear witness, as one who had knowledge of its history,
that this is a correct representation of the intention of the
framers and of the policy of the prosecution. g
While some of Lord Maugham's passages,
considered alone, seem to condemn any trial on the
charge of aggressive warmaking, others look in a
contrary direction. He says, "The view that the actual
authors of a clearly aggressive war should be found
guilty of war crimes does not offend my ideas of justice
…” h Again, he points out a way
of discouraging aggressive war . . . . It is that of
indicting any and trying those and those only
who have been truly responsible for planning or
waging a war proved to be aggressive and as
having thus committed a war crime in the
conventional sense. i
Elsewhere it appears that all he is concerned about is that
the crime be limited to what he calls the "real authors" of
the aggression, j an attitude with which there can be no
disagreement and which I am sure is the intention of the
General Assembly in approving the principles of the
Nürnberg Charter.
However, approval of the Nürnberg Charter by the
United Nations Organization does not solve the real
problem, which is, where do we go from here? We must
Selected Speeches
61
now regard the Nürnberg experience as a basis and guide
for inquiry, not as a final answer to the stubborn practical
and juridical problems inherent in the effort to punish
war crimes.
I have never thought that the Nürnberg Charter,
either alone or as expounded and applied by the
Tribunal, is complete or adequate as a permanent
international penal statute. It was drawn in the wake of
war by men assigned to a specific task of a magnitude
and immediacy which left no time or disposition to
consider universal needs. Only those who worked on it
can know the pressures for haste and summary action.
Such prodding is easily disregarded when it comes from
uninformed or interested sources. But let me remind you
that scholars are also subject to hysteria, not that I have
any personal complaint, but because it bears upon my
plea that you give these problems study and deliberation
while the scholarly minds of the country are relatively
calm. While abroad, I was deluged with copies of the
Chicago Tribune purporting to quote one whom this
Society respects, Dr. Hans J. Morgenthau, 57 as follows:
I am doubtful of the whole setup under which
these trials will be conducted. What, in my
opinion, they should have done is to set up
summary courts martial. Then they should have
placed these criminals on trial before them within
57
Hans J. Morgenthau (1904-1980) was a professor of political
science at the University of Chicago and one of the chief theorists of
international relations realism in the twentieth century. Trained as an
international lawyer, Morgenthau developed a deep skepticism
concerning the uses of international law in international relations.
Regarding Morgenthau and the skepticism of international relations
realism towards international law, see generally, MARTTI
KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS 413-94 (2001).
62
Associate Justice Robert H. Jackson
24 hours after they were caught, sentenced them
to death, and shot them in the morning.
That's what should have been done. What has
been done is only a makeshift, an effort to give
the same kind of action legal aspect. The purpose
is to get rid of these criminals. There is no doubt
of their guilt. Therefore the quicker and more
summary the action the better.
The Nation, which bears at its masthead the legend
"America's Leading Liberal Weekly Since 1865," said as
the trial started:
In our opinion the proper procedure for this
body would have been to identify the prisoners,
read off their crimes with as much supporting
data as seemed useful, pass judgment upon them
quickly, and carry out the judgment without any
delay whatever.
Nothing would have been easier than to have yielded
to such demands. Popular feeling, fanned by such
statements, was running high at the end of the war—in
America as well as abroad. And let me read you some
statistics which I saw in the London Times that reached
my desk today, which will give you some idea of the
feeling in Europe:
Paris, April 11, 1952.
Mr. Matinaud-Deplat, the Minister of Justice,
today gave the following statistics of
condemnations and executions for war-time
collaboration with the Germans: Condemned to
Selected Speeches
63
death by the courts, 2,853; executed, 767
(remainder reprieved by President Auriol);
condemned to death by courtsmartial, 179;
executed, 79; summary executions without legal
trial by members of the resistance, 8,348 (5,234
executed during the occupation and 3,114 alter
the liberation but before French courts were reestablished); executed by decision of non-legal
departmental committees at the moment of
liberation, 1,325; total executed, 10,519.
The Minister said that 38,266 convicted
collaborators had been sentenced to prison terms
by the courts since the liberation. Of these 2,400
were still in prison. The rest had either completed
their terms or had them reduced. Of those still in
prison 30 per cent had criminal records. His
department was reviewing the records and
intended to show particular leniency to young
prisoners.
Whatever criticisms may be made of the trials
conducted by the Americans under the London Charter
or under Control Council Law No. 10, 58 we have never
to face the claim that we executed any persons without
giving them full opportunity to meet the accusation with
every means of defense. And the number of acquittals,
and acquittals on particular counts, will demonstrate that
the cases were judged with discrimination.
The substantive provisions of the Charter, naturally,
were conditioned by the trial machinery and procedures
which it also prescribed. Any conviction and sentence
58
See Nuremberg Trial Final Report, Appendix D: Control Council
Law No. 10, available at http://www.yale.edu/lawweb/avalon/imt/
imt10.htm.
64
Associate Justice Robert H. Jackson
required support by three of the four judges, which
meant that there could be no conviction that was not
approved by either the British or the American judge.
The veto given to men trained in the common law made
it unnecessary to write into the Charter safeguards and
limitations that are inherent in the Anglo-American idea
of crime and its legal proof. Lord Maugham objects that
the Charter does not expressly require proof of personal
responsibility, knowledge of the aggressive purpose, and
establishment of guilt beyond reasonable doubt, although
he admits that every one of these safeguards was
observed in practice. Certainly any wise international
criminal statute will be complete within itself and will
make explicit much that the London Charter for its
purposes safely left to implication.
An ideal
international tribunal would afford representation to all
of the different legal systems of the world. But their
fundamental assumptions are not uniform, and, if a
tribunal is not to engage in endless bickering, those
differences must be reconciled in some organic act. This
we tried to do at London for the purposes of the
particular trial in contemplation, and the relatively small
amount of disputation over procedural and technical
matters at the trial conducted by lawyers of five different
legal backgrounds shows that the effort was not
hopeless.
If the United Nations Organization were to put
international criminal law in statutory form, it certainly
must define criminal aggression. It seemed to me that
the London Charter should have done so, but, for reasons
which you can learn from a study of the minutes of the
Conference, my efforts to obtain a definition were
unsuccessful.
The omission had no serious
consequences on the Nürnberg trial. Hitler's wars were
aggressive ones under any conception of aggression that
Selected Speeches
65
any reasonable tribunal could entertain. But it will never
do to try borderline cases without precisely declared
standards of guilt. We cannot count upon future
aggressions to be so crudely and blatantly documented
by archives captured from the aggressor. Penal sanctions
are apt to miscarry unless they are adapted to more
discreet and subtle aggressions.
I doubt that we should expect much progress to come
from official initiative in this difficult and more or less
technical field. The political state of the world, its
bitterness, its suspicions, its contentions, are timeconsuming and divisive. I need not now conceal my
alarm when I learned from the newspapers that the
President had tossed the codification of the Nürnberg
principles into the lap of the United Nations
Organization. I communicated my concern to Secretary
Byrnes 59 and Delegate Austin, 60 but it was too late. I
had had enough experience with negotiating on the
subject with representatives of other systems of law to
know something of its intricacies, its difficulties, its
limitations, even under favorable circumstances. While I
considered that the London Charter 61 could be vastly
improved, I did not expect that the improvement would
59
James F. Byrnes (1879-1972) was Secretary of State from 1945 to
1947 in the Truman Administration. See http://www.truman
library.org/hoover/byrnes.htm.
60
Warren Austin (1877-1962) was a Senator from 1931 until 1946,
when he became the U.S. representative to the U.N. Security
Council, where he served until 1953. See Austin, Warren Robinson,
in the BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS, available
at http://bioguide.congress.gov/scripts/biodisplay.pl?index=A000
342%201946-1953.
61
The Charter of the International Military Tribunal, 82 UNTS 279;
59 Stat. 1544; 3 Bevans 1238; 39 AM. J. INT’L L. 258 (supp. 1945).
66
Associate Justice Robert H. Jackson
come from the atmosphere of tension and recriminations
that has prevailed of late. It seemed to me that the risk
of discrediting a widely accepted Charter, confirmed by a
judicial precedent, which went beyond anything in
history in its explicitness in outlawing aggressive war,
was greater than any chance of improving it.
Happily, danger that precedent would be devalued
through stalemate or disagreement was overcome by
skillful diplomatic strategy. The General Assembly first
unanimously affirmed the Nürnberg principles and only
after that appointed a commission to find out what they
were. I salute the diplomats upon the superiority of their
technique over any that would occur to a pedestrian legal
mind.
But my reluctance about an official undertaking to
codify the law of war crimes was chiefly motivated by a
belief that codification is an enterprise that belongs to
maturity rather than to infancy of any branch of legal
learning. I think international law may well be in some
danger from a crude and premature codification, which is
a knotty, intricate and delusive search even in fields of
private law where years of judicial trial and error have
exposed the gamut of problems and solutions. Workable
codes are the outcome of experience, not imagination.
Abstract statements of general principle are mere dogma
unless they have been verified in practice. It may be
doubted that one instance of aggression sufficiently
exhibits future probabilities to be the basis for a
permanent international criminal statute.
Trial of war crimes since World War II, however, has
yielded a variety of trial experience which does afford to
scholars of international law the materials for a useful
literature of comparison, criticism and constructive
suggestion. We cannot know at what moment the
occasion may arise for their repetition. The event which
Selected Speeches
67
forced them in the past—capture of high-ranking
officials who are reasonably believed to be responsible
for a war of aggression—would no doubt compel them
again. I can tell you from experience at London that
deliberate and detached studies upon all aspects of the
subject would be invaluable guides to officials who may
be compelled to act again in haste.
Materials now available for analysis are extensive
and varied. An international trial demonstrated the
difficulties of reconciling four contrasting systems of
law, but also taught that they are not insurmountable.
Certainly our initial efforts show the need for vast
improvement of international trial technique. There were
many trials under Control Council Law No. 10 which
reveal the results of a very different procedure,
administered, however, in the spirit of the London
Agreement. British trials were conducted under Royal
Warrant, and Lord Maugham thinks they are better
examples to follow, although I cannot refrain from
observing that they seem to have occasioned quite as
earnest German and British criticism as have ours. There
were also Continental trials, not only of enemies, but of
nationals for political offenses akin to treason, perhaps,
such as the Quislings and collaborators and there were
the denazification trials in Germany. In the Far East
there was the Tokyo trial, k which went its own way, a
way that did not follow Nürnberg in many and important
respects. Then, too, there were the military trials,
including the famous Yamashita case, l which applied
principles of criminal liability of military officers for
atrocities in their area of command more extreme than
anything we civilians thought appropriate at Nürnberg.
Another innovation that merits study is the
assimilation and implementation of international law by
national law. The prime example, for which the
68
Associate Justice Robert H. Jackson
disclosures made at the Nürnberg trials may be entitled
to some credit, is the Bonn Constitution, which provides:
Art. 25. The general rules of international law
shall form a part of federal law. They shall take
precedence over [federal] law and create rights
and duties directly for the inhabitants of federal
territory.
Art 26. Activities tending to disturb, or
undertaken with the intention of disturbing,
peaceful relations between nations, and
especially preparing for aggressive war shall be
unconstitutional. They shall be made subject to
punishment.
Certainly this recognition of the principles which
Professor Jessup 62 has pointed out as fundamental in any
modern system of international law m is highly creditable
to West Germany and an example which the victors
could well emulate. But it would entail some new
perplexities for those who have broad and rigid
guarantees of freedoms of speech and press.
While I suppose there is little prospect that an
international criminal court will be established in the
immediate future, its consideration focuses attention
62
Phillip Jessup (1897-1986) had a career that included taking part
in both the Bretton Woods Conference (organizing the World Bank
and the IMF) and the San Francisco Conference (founding the
United Nations), being in the U.S. delegation to the Security
Council during the Berlin blockade and airlift, and ultimately
serving as a Judge on the International Court of Justice from 1961 to
1970. Philip Jessup was also a professor at Columbia Law School
and one of the most influential scholars of international law in the
twentieth century. See, generally, Oscar Schachter, Philip Jessup’s
Life and Ideas, 80 AM. J. INT’L L. 879 (1986).
Selected Speeches
69
upon problems of jurisdiction, composition and
procedure which, I assure you, are among the most
troublesome in actual practice in this field. I think that
systems of law differ more deeply and stubbornly in
methods of trial than in substantive principles. Yet,
historians have pointed out that the common law
developed procedurally before it did substantively and
that a law of rights and liabilities began to develop only
when there was a system for adjudicating rights and
liabilities. It is not far-fetched to compare the present
state of international society to a primitive society which
had controversies to be decided long before it had
legislatures to frame codes. Whenever courts begin to
function on either civil or criminal issues, they develop a
body of decisional jurisprudence. We are prone to forget
that law is older than legislation.
We would have every reason to expect the nations to
welcome an era of submission to international law if the
principal Powers of the world shared our legal
philosophy. But the Communist Powers do not share our
passion for legality or accept our specific concepts of
international law. Marxist materialism leaves little room
for the operation of moral forces or legal principles. The
Western World has learned the futility of military force
to solve its problems. Ferrero remarked upon "the
destiny of Rome to perish through its conquests." It
might aptly be applied to the decline of more modern
empires. We have learned that to be victors is a
catastrophe second only to being the vanquished, but we
are not sure that this teaching has impressed all parts of
the world.
I hope to see legal scholarship seriously turn its
attention to making peaceful ways expedient, on the
basis of material rewards and punishments for those who
have no higher standards. We should seek for every
70
Associate Justice Robert H. Jackson
device which will take any advantage out of international
lawlessness and aggression and will deprive of personal
immunities those who whip up needless international
conflicts. With the modern improvements in our
methods of destruction, our two world wars are only
dress rehearsals for the final catastrophe of our kind of
civilization, unless you international law scholars can
find ways to provide effective sanctions for a rule of law
among nations.
Author’s Notes
a
"In my opinion, then, it was very necessary to try those believed on
good grounds to be guilty of these atrocities, to punish the torturers,
the murderers and thieves not only because they polluted the air, but
in a hope that never again would any country be guilty in a future
war of offences against all sane notions of humanity." Maugham,
U.N.O. and War Crimes, p. 29. "It is, in my opinion, indisputable
that the victorious States who have become the military occupiers of
the enemy country have the power to confer a military jurisdiction to
punish the persons who had committed any of these so-called
‘crimes’'; but they could not enlarge or alter the rules of
International Law." Ibid., p. 46. See also pp. 51, 59, 81. "I wish to
state after a long consideration of the case tried at Nuremberg (I. M.
T.), and of the careful Judgment and after some personal attendance
at the trial, that it was, in my view, conducted by the Judges of the
occupying forces with judicial fairness and a desire to give the
accused reasonable facility in defending themselves against the
charges specified in the Indictment, provided the defences raised did
not attempt to contradict the terms of the Charter." Ibid., p. 62. ". . .
[W]hatever the defects in the Nuremberg Charter, the Tribunal when
dealing with the individual defendants did not think it necessary to
rely on presumptions of guilty knowledge or of responsibility, and
that the sentences pronounced, severe as they were, did not depart
from ordinary principles of justice." Ibid., p. 55. "I wish at this point
to make it clear, at the risk of repetition, that the Judges at
Nuremberg avoided delivering any sentence on any of the nineteen
convicted defendants to which under the Charter a reasonable legal
critic could object. The world war which came to an end in 1945
Selected Speeches
71
was no doubt proved to be an aggressive one. The twenty-two
defendants in the trial were persons of position and influence, and
those who were found guilty of the crime under Count Two of
participating in the war must doubtless have been aware that the war
was an aggressive one . . . ." Ibid., p. 82.
b
Id., at p. 74. See also p. 97.
c
“.. . [F]or conscription was of course in force in Germany, and
even if those guilty of waging the war were confined to those who
were members of the forces, or even to those who merely marched
in an army or fired a shot at the enemy, it is certain that they would
greatly exceed the figure of a million." Id., at pp. 18-19. "In doing so
it [the Charter] lumped together in the same general condemnation
those deemed to be the real author or authors of the war, who knew,
no doubt, what they were doing and why they were doing it, with
the hordes of Germans of all sorts and kinds, rich and poor, educated
and scarcely able to read or write, filling an important role in the
war or acting merely as humble pawns pushed about wherever they
were ordered, men with no real option to decline the duties which
were placed on them, and with little chance of keeping their wives
and children alive if they refused to obey; for these persons could
nearly all of them be proved to have participated in waging the war."
Ibid., p. 39. "The clause is obviously not limited to authors of the
war." Ibid., p. 48. ". . . [I]n words at least it turned half the male
population of Germany into criminals. . . ." Ibid., p. 52. "The same
terrible question arises as to all these men from Field Marshal to the
last joined recruit, from Lord High Admiral to the humble snotty or
seaman." Ibid., p. 75. For repetition of the concept in some form, see
also pp. 22, 24, 30, 31, 32, 53, 56, 57, 58, 73, 76, 96, 97, 102, 106,
107.
d
Id., at p. 97.
e
Id., at p. 77.
f
Id., at p. 24.
g
International Conference on Military Trials, London, 1945 (Dept.
of State Pub. 3080).
72
Associate Justice Robert H. Jackson
h
Maugham, op. cit., p. 82
i
Ibid.
j
Id., at pp. 52, 57, 77, 80, 81, 109.
k
Hirota v. MacArthur, 335 U. S. 876; 338 U. S. 197.
l
In re Yamasbita, 327 U. S. 1. See also Johnson v. Eisentrager, 339
U.S. 763.
m
Jessup, Modern Law of Nations, p. 2, and passim.
Address at the Eighty-Eighth Annual Meeting
The Supreme Court and the Law of Nations:
Owing a Decent Respect to the Opinions of Mankind
By Justice Harry A. Blackmun ∗
Friday, April 8, 1994
I. First Principles
I am here tonight to speak about the Supreme Court,
the law of nations and the place in American
jurisprudence for what the Drafters of the Declaration of
Independence termed "a decent respect to the opinions of
mankind."
The early architects of our nation were experienced
diplomats who appreciated that the law of nations was
binding on the United States. John Jay, the first Chief
∗
Associate Justice, United States Supreme Court, 1970-1994. Harry
Blackmun was born in Nashville, Illinois, on November 12, 1908
and spent part of his childhood growing up in Minnesota. He
graduated from Harvard College in 1929 with an A.B summa cum
laude in Mathematics. He then went on to Harvard Law School,
from which he graduated in 1932. He subsequently clerked for
Judge John B. Sanborn of the Eight Circuit. After clerking, he was
private practice in Minneapolis until 1950, specializing in tax and
trust matters. In 1950, he left the law firm and became the in-house
counsel for the Mayo Clinic.
In 1959, President Eisenhower appointed Harry Blackmun to the
Eight Circuit Court of Appeals, to fill the seat of Judge Sanborn, for
whom he had clerked. In 1970, President Nixon nominated Harry
Blackmun to the U.S. Supreme Court. Justice Blackmun’s tenure on
the Court is perhaps best known for his having written the Roe v.
Wade decision on abortion rights. Harry Blackmun retired from the
Supreme Court in 1994. He passed away in 1999.
73
74
Associate Justice Harry A. Blackmun
Justice of the United States, observed, in a case called
Chisolm v. Georgia a that the United States "had, by
taking a place among the nations of the earth, become
amenable to the laws of nations." Although the
Constitution gives Congress the power to "define and
punish . . . [o]ffenses against the Law of Nations," b and
identifies treaties as part of "the supreme Law of the
Land," c the task of further defining the role of
international law in the nation's legal fabric has fallen to
the courts.
Several first principles have been established. As
early as 1804, the Supreme Court recognized that "an act
of congress ought never to be construed to violate the
law of nations if any other possible construction
remains." d In a trilogy of cases in the l880s, the Court
established that treaties are on equal footing with federal
statutes, and that where a treaty and statute cannot be
reconciled, the later in time is controlling. e
Finally, in the Paquete Habana case f decided in
1900, the Supreme Court addressed the power of courts
to enforce customary international law. In invalidating
the wartime seizure of fishing vessels as contrary to the
law of nations, the Court observed: "International law is
part of our law, and must be ascertained and
administered by the courts." Where no treaty or other
legal authority is controlling, resort must be had to the
customs of nations.
These early principles, established during the
Supreme Court's first century, continue to define the
relationship between the law of nations and domestic
American law. Tonight I consider the Supreme Court's
application of these principles in four of the Court's
recent cases. The first two, United States v. AlvarezMachain and Haitian Centers Council v. McNary,
required the Court to examine the validity of executive
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75
action in light of binding international treaties. The last
two, Thompson v. Oklahoma and Sanford v. Kentucky,
addressed the implications of international law for
Eighth Amendment death-penalty jurisprudence.
Unfortunately, I conclude from these cases that the
Supreme Court has shown something less than "a decent
respect to the opinions of mankind."
II. Construing International Conventions
A. United States v. Alvarez-Machain. Two Terms ago,
in the case of United States v. Alvarez-Machain, g the
Supreme Court was asked to consider whether the forced
abduction of a Mexican national by U.S. agents violated
a U.S.-Mexican extradition treaty. Over the vehement
protest of the Mexican Government, Dr. AlvarezMachain had been kidnapped in Mexico and brought to
the United States to stand charges for the murder of a
drug enforcement agent. The District Court dismissed
the charges, concluding that the abduction violated the
U.S.-Mexico extradition treaty. The Supreme Court
disagreed, holding, by a 6-3 vote, that the treaty had not
been violated.
Although the treaty established
comprehensive extradition procedures, the Chief
Justice's majority opinion observed that the treaty was
silent regarding "the obligations of the United States and
Mexico to refrain from forcible abductions." h
Kidnapping, therefore, was not prohibited.
Justice Stevens condemned the Court's holding in a
dissent in which Justice Souter and I joined. i The
dissenters argued that construing the treaty's silence to
allow kidnapping would render its provisions
meaningless and violate the treaty's spirit and purpose.
Extradition treaties codify fundamental international
norms. They preserve the territorial integrity of nations,
protect individuals from arbitrary detention and arrest,
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Associate Justice Harry A. Blackmun
and prevent international conflict.
Transborder
kidnapping, of course, violates each of these goals. If
the Supreme Court's decision was correct, Mexico is
now less constrained from kidnapping nationals of the
United States. Rather than negotiating for the extradition
of John Demjanjuk, Israel—according to this Court
decision—could have kidnapped Demjanjuk and held
him for trial in Israel on any charge it wished. The entire
purpose of the extradition system would be eviscerated.
The Supreme Court, it seems to me, thus construed the
treaty's silence to permit precisely the result it was
drafted to forbid.
Ironically, the Supreme Court could have benefited
in its construction of the treaty from the example of the
highest court of South Africa, which recently dismissed
the prosecution of a person kidnapped from a
neighboring country. In language strikingly reminiscent
of that in Paquete Habana, the South Africa court
concluded that an "abduction represents a violation of
the applicable rules of international law, that these rules
are part of [South African] law, and that this violation of
the law deprive[d] the Court . . . of its competence to
hear [the] case." j
The Alvarez-Machain chapter in the Supreme Court's
history closed with a poetic twist. In December 1992, an
exasperated Federal District Judge dismissed the
criminal charges against the kidnapped doctor,
concluding that the government's evidence supporting
the indictment was insufficient. And in June 1993, the
United States and Mexico formally agreed to amend the
U.S.-Mexico Extradition Treaty to prohibit transborder
kidnapping. As often happens, it took a decision like
Alvarez-Machain to achieve an ultimate result in
compliance with international law.
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B. Sale v. Haitian Centers Council. Last Term, the
Supreme Court again was called upon to construe an
international treaty—with equally disturbing results, I
believe, for the opinions of mankind. Haitian Centers
Council concerned a challenge by Haitian refugees to the
U.S. policy of intercepting Haitian refugees on the high
seas and summarily returning them to Haiti, without any
consideration of their asylum claims or inquiry into their
intended destination. Central to the Haitian plaintiffs'
challenge was Article 33.1 of the United Nations
Convention Relating to the Status of Refugees. That
Article provides: "No contracting State shall expel or
return [refouler] a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom
would be threatened." The principle of nonrefoulement
expressed in Article 33.1—that no refugee may be
returned to a country where he will suffer persecution—
is one of the most fundamental international rights of
refugees. More than 100 nations, including the United
States, have acceded to the obligations of Article 33.
In construing the treaty in Haitian Centers Council,
however, the Court, it seems to me, once again failed to
respect its first principles of international law. The
language of Article 33 absolutely prohibits the "return"
of refugees "in any manner whatsoever," without
geographical limitation.
The Supreme Court
nevertheless concluded that the prohibition applies only
after a refugee successfully enters U.S. territory.
Reasoning backward from a formalistic interpretation of
U.S. immigration law, the Court held that the treaty
allows the United States to reach outside its territory to
return bona fide refugees.
An 8-1 majority of the Court recognized that "[t]he
drafters of the convention may not have contemplated
that any nation would gather fleeing refugees and return
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Associate Justice Harry A. Blackmun
them to the one country they had desperately sought to
escape." k "[S]uch actions," the Court acknowledged,
"may even violate the spirit of Article 33." l Nevertheless,
the Court once again interpreted a treaty contrary to its
plain meaning, spirit and purpose. The Court thus
accomplished precisely what the Court's dissent had so
vehemently criticized in Alvarez-Machain the Term
before.
I was the sole dissenter in Haitian Centers Council.
Although I shall not belabor the argument, to me the
mandate and spirit of the Refugee Convention appear to
be clear: "Vulnerable refugees shall not be returned." m In
the conclusion to my dissent, I noted that Article 33 was
enacted largely in response to the experience of Jewish
refugees during World War 11—refugees the United
States and nations of Europe repelled and returned to the
gas chambers of Nazi Germany. Article 33 was enacted
to ensure that this international nightmare would not be
repeated. To allow nations to skirt their solemn treaty
obligations and return vulnerable refugees to persecution
simply by intercepting them in international waters, is, as
the District Court in Haitian Centers Council noted, to
turn the Refugee Convention into a "cruel hoax."
Do not the decisions in the Alvarez-Machain and
Haitian Centers Council cases reflect a disturbing
disregard for the Supreme Court's obligations when
construing international law? Treaties are contracts
among nations, and thus must be interpreted with
sensitivity toward the customs of the world community.
In each of those cases, however, the Court ignored its
first principles and construed the challenged treaty
directly contrary to the opinions of mankind.
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III. Respect for the Law of Nations in Constitutional Law
I now turn to a second area where the law of nations
has been implicated in the Court's recent jurisprudence,
that is, the execution of juvenile offenders in the face of
the Eighth Amendment to the Constitution.
Since the beginning of this century, the Supreme
Court has recognized that the Eighth Amendment
"derive[s] its meaning from evolving standards of
decency that mark the progress of a maturing society." n
The Amendment is concerned, at root, with "the dignity
of man," o which is to be measured, in part, against
international norms. Thus, in cases striking down the
death penalty as a punishment for rape, p or for
unintentional killings, q the Court has looked to both
domestic and international opinion to determine which
punishments are cruel and unusual.
Taking international law seriously where the death
penalty is concerned, of course, draws into question the
entire U.S. capital punishment enterprise. According to
Amnesty International, more than fifty countries have
abolished the death penalty entirely, and thirty-seven
others either have ceased imposing the death penalty or
have limited its imposition to extraordinary crimes.
Even those countries that continue to impose the death
penalty almost universally condemn the execution of
juvenile offenders. They do so in recognition that
juveniles are too young, and too capable of growth and
development, to act with the culpability necessary to
justify society's ultimate punishment. The United States,
however, persistently has defended its "right" to sentence
juvenile offenders to death.
Challenges to the execution of juvenile offenders
came to the Court twice in the late 1980s. In 1987, the
Court considered the constitutionality of the death
sentence of William Wayne Thompson, who had been
80
Associate Justice Harry A. Blackmun
sentenced to death in Oklahoma for a crime committed
when he was fifteen. r A plurality of four—Justices
Brennan, Marshall, Stevens and I—concluded that the
"civilized standards of decency" embodied in the Eighth
Amendment prohibited Thompson's execution. s Writing
for the plurality, Justice Stevens noted that this
conclusion was consistent with international practice.
Both Justice O'Connor's concurrence and the plurality
found it significant that three major international human
rights treaties explicitly prohibited juvenile death
penalties, and that one of these instruments had been
ratified by the United States.
In a dissent joined by Chief Justice Rehnquist and
Justice White, Justice Scalia denounced as "totally
inappropriate" the plurality's reliance on international
practice. "[T]he views of other nations, however
enlightened the Justices of this Court may think them to
be," Justice Scalia argued, "cannot be imposed upon
Americans through the Constitution." t Justice Scalia's
position that international law was irrelevant did not
prevail, however, and Thompson v. Oklahoma stands for
the proposition that the Eighth Amendment prohibits the
execution of a fifteen-year-old offender.
Two years later, the identical question returned to the
Court in cases involving condemned juveniles who were
sixteen or older at the time of the offense. This time a
different conception of the Eighth Amendment prevailed.
In a 5-4 majority opinion, the Supreme Court held in
Stanford v. Kentucky u that the execution of juveniles who
committed the crime at age sixteen or older is not
prohibited by the Eighth Amendment. Justice Scalia's
majority opinion "emphasize[d] that it is the American
conceptions of decency that are dispositive, v and rejected
the contention that the sentencing practices of other
countries were relevant.
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Justice Brennan wrote the dissent for the four
members of the Thompson plurality. Arguing that the
Court consistently has recognized that "legislation in
other countries is also of relevance to Eighth
Amendment analysis," w Justice Brennan observed that
"[w]ithin the world community, the imposition of the
death penalty for juvenile crimes appears to be
overwhelmingly disapproved." x
Justice Brennan was correct.
As Amnesty
International has reported, the United States "stands
almost alone in the world in executing offenders who
were under 18 at the time of the crime." At least
seventy-two of the countries that retain the death penalty
prohibit the execution of persons under eighteen at the
time of the offense. Global conventions such as the
International Covenant on Civil and Political Rights, to
which nearly 100 nations have acceded, forbid the death
penalty for offenses committed by juveniles under
eighteen. At the time that Stanford was decided, only
eight juvenile offenders had been executed worldwide in
the previous decade. Since 1985, however, eight
juvenile offenders have been executed in the United
States alone, and the United States has sentenced more
juvenile offenders to death, and currently has more
juvenile offenders on death row, than perhaps any other
nation.
Refusing to consider international practice in
construing the Eighth Amendment is convenient for a
Court that wishes to avoid conflict between the death
penalty and the Constitution. But it is not consistent
with this Court's established construction of the Eighth
Amendment. If the substance of the Eighth Amendment
is to turn on the "evolving standards of decency" of the
civilized world, there can be no justification for limiting
judicial inquiry to the opinions of the United States.
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Associate Justice Harry A. Blackmun
Interpretation of the Eighth Amendment, no less than
treaties and statutes, should be informed by a decent
respect for the global opinions of mankind.
IV. Conclusion
Professor Henkin poignantly has observed that
"almost all nations observe almost all principles of
international law and almost all of their obligations
almost all of the time." y Unfortunately, as the cases I
have cited illustrate, the Supreme Court's own recent
record in the area is somewhat more qualified. At best, I
would say that the present Supreme Court enforces some
principles of international law and some of its
obligations some of the time.
The reasons for the Court's failures in this area are
not very clear. Concerns about separation of powers and
judicial competence make courts reluctant to secondguess the legislature and Executive in areas involving
international affairs. Modern jurists also are notably
lacking in the diplomatic experience of early Justices
such as John Jay and John Marshall, who were familiar
with the law of nations and felt comfortable navigating
by it.
Today's jurists, furthermore, are relatively
unfamiliar with interpreting instruments of international
law.
I have been serving on the federal bench for thirtyfour years. During that time, the United States has
become economically and politically intertwined with
the rest of the world as never before. International
human rights conventions—still a relatively new idea
when I came to the bench in 1959—have created for
nations mutual obligations that are accepted throughout
the world. As we approach the 100th anniversary of the
Paquete Habana, then, it perhaps is appropriate to
remind ourselves that now, more than ever, "international
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83
law is part of our law" and is entitled to the respect of
U.S. domestic courts. Although the recent decisions of
the Supreme Court do not offer much hope for the
immediate future, I look forward to the day when the
Supreme Court, too, will inform its opinions almost all
the time with a decent respect to the opinions of
mankind.
Author’s Notes
a
2 Dall. 419, 474 (1793).
b
Art. I, §8, cl. 10.
c
Art. VI, cl. 2.
d
Murray v. Schooner Charming Betsy, 2 Cranch 64, 118.
e
See Head Money cases, 112 U.S. 580 (1884); Whitney v.
Robertson, 124 U.S. 190, 194 (1888); The Chinese Exclusion case,
130 U.S. 581, 600, 602Ä03 (1889).
f
175 U.S. 677 (1900).
g
112 S. Ct. 2188 (1992), reprinted in 31 ILM 900 (1992).
h
Id. at 2193.
i
Id. at 2206.
j
Id. at 2206, note 6, quoting State v. Ebrahim, S. AFR. L. REP.
(Apr.-June 1991).
k
Id. at 2565.
l
Id., emphasis added.
m
113 S. Ct. 2577 (1993) (dissenting opinion).
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Associate Justice Harry A. Blackmun
n
Trop v. Dulles, 356 U.S. 86, 100 (1958).
o
Id. at 101.
p
Coker v. Georgia, 433 U.S. 584 (1977).
q
Enmund v. Florida, 458 U.S. 782 (1982).
r
Thompson v. Oklahoma, 487 U.S. 815 (1987).
s
Id. at 830.
t
Id. at 868, note 14.
u
492 U.S. 361 (1989).
v
Id. at 369, note 1.
w
Id. at 389.
x
Id. at 390.
y
LOUIS HENKIN, HOW NATIONS BEHAVE 47 (2d ed. 1979).
Keynote Address at the Ninety-Sixth Annual Meeting
By Justice Sandra Day O'Connor ∗
Saturday, March 16, 2002
What I wanted to tell you tonight is that I do not
deserve to be your speaker. I do not know much about
international law. I am just learning; I am trying to learn
and I have no words of expertise to give you on that
subject. I am here because I think it is important and
because I think I need to know more. Most people in the
∗
Associate Justice, Supreme Court of the United States, 1981-2006.
The first woman ever appointed to the United States Supreme Court,
Sandra Day O’Connor took oath on September 25, 1981. She had
previously been elected to the Maricopa County Superior Court in
Phoenix, Arizona, in 1975 and appointed to the Arizona Court of
Appeals in 1979. Prior to her time on the bench, Sandra Day
O’Connor had served in the legislative branch, having been
appointed Arizona State Senator in 1969 and subsequently reelected
to two terms. During this time she was twice elected Arizona Senate
Majority Leader.
In 1999 Justice O’Connor became the chair of the ASIL’s Judicial
Advisory Board and co-founded the ASIL’s Judicial Outreach
Program. At the time of this writing, she is a member of the ASIL’s
Executive Board and is also on the Board of the American Bar
Association Central European and Eurasian Law Initiative
(originally called the Central Eastern European Law Initiative,
CEELI) as well as numerous other programs that build bridges
between the judiciaries of different countries.
Sandra Day O’Connor graduated from Stanford University with a
B.A. magna cum laude in Economics, and from Stanford Law
School, where she graduated third in her class and was elected to the
Order of the Coif.
85
86
Associate Justice Sandra Day O’Connor
United States need to know more. That is where you
come in. And I am really very nervous about speaking to
this audience of experts tonight.
The other thing I wanted to tell you was that, as we
get older, we are less inclined to reach out and establish
new friendships. When we are young, it is completely
natural to be open and accepting of new people and new
friends. Later on, we become comfortable with the
people we already know. We are not eager to reach out.
We are settled in one place, we develop our habits, our
routines, and we are just not as open to new contacts as
in our youth.
The ASIL is really a relatively new friend of mine,
developed in my later years. I became aware of the
Society only a few years ago, basically through work I
had been doing for the Central Eastern European Law
Initiative (CEELI). 63 I had met and admired, many years
ago in my home state of Arizona, Rita Hauser, 64 who has
been active with you in a variety of ways, and I learned
of her involvement with this association.
63
A public service project of the American Bar Association to
advance the rule of law in the world by supporting the legal reform
process in Central and Eastern Europe, Eurasia, and the Middle East.
See http://www.abanet.org/ceeli/.
64
At the time of this writing, Rita Hauser is the, President of the
Hauser Foundation, the chair of the Advisoy Board of the
International Crisis Group, the Chair of the International Peace
Academy Board of Director, a trustee of the RAND Corporation,
and is a member of the ASIL’s Executive Board. She was
previously a partner at the law firm Stroock & Stroock & Lavan and
was a member of the President’s Foreign Intelligence Advisory
Board (2001-2004). She has also represented the United States on
human rights issues at the United Nations. Dr. Hauser was a cofounder of the ASIL’s Judicial Outreach Program.
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87
I was invited, as Arthur Rovine 65 explained, to help
establish an advisory group for judicial outreach for the
Society to explore ways in which judges in this country
might become more knowledgeable about international
law. I agreed to chair the advisory group and invited a
number of federal judges across the country to join me in
thinking about ways in which the Society could help
those of us on the bench become better informed about
principles of international law and current issues in the
field, that we might be likely to encounter on the bench.
The result of the effort has been extremely
encouraging. It has resulted in the development of this
new friendship for me with the Society and with some of
you. With the help of the Society, we have succeeded in
providing programs on different aspects of international
law at circuit conferences in six of our federal circuits.
Three more are presently scheduled. There have been
programs for the National Association of Women Judges
and the Federal Judicial Center.
We are trying to complete drafting an international
law overview for distribution to all federal judges who
want it. That is going to be quite an accomplishment:
not sophisticated enough for those of you who are
experts, but something for people who are not experts to
use as a basic primer, if you will. We are also preparing
a handbook on procedural aspects of international civil
litigation and an international human rights overview.
65
President of the ASIL, 2000-2002. Arthur Rovine practiced
international litigation and arbitration at Baker & McKenzie from
1983 to 2005. Among his previous positions, he had been the
Assistant Legal Adviser for Treaty Affairs in the Office of the Legal
Adviser of the U.S. Department of State (1975-1981) and the first
Agent of the United States before the Iran-U.S. Claims Tribunal
(1981-1983).
88
Associate Justice Sandra Day O’Connor
All of these activities have been the result of the
effort this association has made in judicial outreach.
Chris Borgen, 66 who has been working for this
organization, has done a superb job in every respect.
The organization has been fortunate to have him.
Despite the robust agenda of the advisory group, I really
do feel like a fish out of water in speaking to this group
of international law experts in light of my own limited
knowledge of the subject.
I ask myself, why does information about
international law matter so much? Why should judges
and lawyers who are concerned about the intricacies of
ERISA, 67 the Americans with Disabilities Act, and the
Bankruptcy Code care about issues of foreign law and
international law?
The reason, of course, is
globalization. No institution of government can afford
now to ignore the rest of the world.
The importance of globalization should not be
underestimated. Thirty percent of our gross domestic
product is internationally derived. We operate today
under a large array of international agreements and
organizations: the UN Convention on Contracts for the
International Sale of Goods, the North American Free
Trade Agreement, the World Trade Organization, the
Hague Conventions on collection of evidence abroad and
on service of process, the New York Convention on the
Enforcement of Arbitral Awards, to mention only a few
of a great many such agreements.
But globalization is so much more than simply these
agreements and organizations.
Globalization also
represents a greater awareness of, and access to, peoples
66
ASIL Director of Research and Outreach, 1999-2002.
67
The Employee Retirement Income Security Act of 1974.
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and places far different from our own. The fates of
nations are more closely intertwined than ever before
and we are more acutely aware of the connections we
have with others.
As we learned in this country on September 11th,
these connections can sometimes be devastating rather
than constructive. But as we are learning in the postSeptember 11th world, the power of international
cooperation and international understanding is much
greater than the obstacles we face.
The word globalization has many connotations, some
positive, some negative. These varying views reflect
both the potential for globalization to increase world
harmony and the risk that it will suppress desirable
difference and become simply a tool for imposing the
preferences of powerful nations, such as our own, on the
rest of the world. Harnessing the good that can come
from our increasingly global world while avoiding these
pitfalls involves—indeed, requires—those with power
and influence in our country to develop a greater
knowledge and understanding of what is happening
outside our nation's borders.
This is true of courts as much as it is of any other
governmental body. One of the topics discussed at this
annual meeting is the internationalization of legal
relations. We are already seeing this in American courts,
and should see it increasingly in the future. This does
not mean, of course, that our courts can or should
abandon their character as domestic institutions. Very
few treaties are directly enforceable in American courts.
In the Breard case, a for instance, our Supreme Court
declined to entertain a Vienna Convention claim in a
death penalty case on the basis of a procedural default, as
well as a belief that neither the text nor the history of the
Vienna Convention clearly provides a foreign nation a
90
Associate Justice Sandra Day O’Connor
private right of action in United States courts to set aside
a criminal conviction and sentence for violation of the
consular notice provisions.
On the somewhat rare occasions when we are called
upon to consider international law, however, the court on
which I sit often refuses. Just this term, we declined to
hear a case about the definition of custody in the Hague
Convention on International Child Abduction, despite the
fact that the lower court's ruling contradicted that of
courts in several other signatory countries. Since the
Second Circuit's decision in Filartiga v. Peña-Irala, b
American courts have entertained Alien Tort Claims Act
and Torture Victim Protection Act cases involving
international law violations by other sovereigns with
significant impacts on the international terrain. In the
Karadzic case, c for instance, the Second Circuit allowed
a suit against Radovan Karadzic‚ for crimes against
women in the Bosnian conflict, expanding the act's
coverage to include suits against those who are not
recognized as heads of states.
Exemplified by suits like these, international human
rights litigation has become a sort of cottage industry in
the United States. Yet our Supreme Court has not
reached in to clarify these statutes, despite the explicit
urgings of some lower court judges who do not have
such control over their own dockets.
Those federal courts that have no choice but to
entertain suits like the Karadzic case may be doing so
without full awareness of the implications for the
international arena. These judgments against foreign
leaders, which are rarely if ever enforced in any
traditional sense, play an important role in shaping
diplomatic initiatives around the globe. The impact of
such litigation on international relations is not always
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91
positive, as Curtis Bradley 68 has pointed out. d Whatever
the merits of allowing these suits, courts should be aware
of the effects their decisions in such important cases may
have.
Although international causes of action like these are
still relatively rare, there are many other ways that
international issues are coming before American courts.
This is because international law is no longer confined in
relevance to a few treaties and business agreements.
Rather, it has taken on the character of transnational
law—what Philip Jessup 69 has defined as law that
regulates actions or events that transcend national
frontiers. Both public and private international laws are
included, as are other rules that do not wholly fit in to
such standard categories.
Although international law and the law of other
nations are rarely binding upon our decisions in U.S.
courts, conclusions reached by other countries and by the
inter-national community should at times constitute
persuasive authority in American courts.
This is
sometimes called "transjudicialism."
American courts have not, however, developed as
robust a transnational jurisprudence as they might.
Many scholars have documented how the decisions of
the court on which I sit have had an influence on the
opinions of foreign tribunals. One scholar has even said
68
At the time of this speech, Curtis Bradley was a professor of law
at the University of Virginia. He subsequently became the Richard
and Marcy Horvitz Professor of Law and associate director of the
Program in Public Law at Duke Law School. He served in 2004 as
Counselor in International Law in the Office of the Legal Adviser of
the Department of State.
69
Regarding Phillip Jessup, see supra note 62 to the 1952 Address
by Justice Robert H. Jackson.
92
Associate Justice Sandra Day O’Connor
that, when life or liberty is at stake, the landmark
judgments of the Supreme Court of the United States,
giving fresh meaning to the principles of the Bill of
Rights, are studied with as much attention in New Delhi
or Strasbourg as they are in Washington, DC or the state
of Washington or Springfield, Illinois.
This reliance, unfortunately, has not been reciprocal.
There has been a reluctance on our current Supreme
Court to look to international or foreign law in
interpreting our own Constitution and related statutes.
While ultimately we must bear responsibility for
interpreting our own laws, there is much to learn from
other distinguished jurists who have given thought to the
same difficult issues that we face here.
The court on which I sit has held, for more than two
hundred years, that acts of Congress should be construed
to be consistent with international law, absent clear
expression to the contrary. Somewhat surprisingly,
however, this doctrine is rarely utilized in our court's
contemporary jurisprudence. I can think of only two
cases during my more than twenty years on the Supreme
Court that have relied upon this interpretive principle.
We have refused to consider international law and the
law of other nations when interpreting our own
Constitution. We are sometimes asked to do so,
particularly when dealing with Eighth Amendment
challenges to the death penalty. Litigants claiming that
the execution of those who were juveniles at the time
they committed the crime violates the International
Covenant on Civil and Political Rights, as well as
general international norms, are sometimes before us.
This very term, we are considering a case involving
the constitutionality of executing people who are
mentally retarded. Several of the briefs focus on the
practice of other nations. We have even received an
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93
amicus brief from a group of American diplomats,
discussing the difficulties posed for their missions by the
American death penalty practice. Until now, however,
we have always held that when interpreting the meaning
of cruel and unusual punishment, under the Eighth
Amendment, only national norms are relevant.
Although our reliance on international and foreign
law is rare, it is not nonexistent. For instance, we have
looked to international law notions of sovereignty when
shaping our federalism jurisprudence and to international
law norms in boundary disputes between American
states. In areas such as these, it would be a mistake to
ignore the rich resources developed in the law of nations.
I suspect that, with time, we will rely increasingly on
international and foreign law in resolving what now
appear to be purely domestic issues.
I have not even scratched the surface of the issues
and areas of application of foreign and international law
in U.S. courts. The fact is that international and foreign
law are being raised in our courts more often and in more
areas than our courts have the knowledge and experience
to deal with. There is a great need for expanded
knowledge in the field, and the need is now.
This is an interesting time in world history. For one
thing, for the first time there are now democratically
elected governments in more than half the countries of
the world. By last count there are approximately 120
democracies out of 190 nation states. Even in countries
that do not have democratically elected governments,
there are laws and legal systems and judicial systems.
Law is basically a formal expression of society's
agreement on basic principles by which we will conduct
ourselves in relation to others. It is the way in which we
express the ideals of our respective societies.
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Associate Justice Sandra Day O’Connor
To the Western world of law, the great gift of the
Magna Carta, signed in 1215, was the notion that no
person, including the sovereign, is above the law and that
all persons shall be secure from the arbitrary exercise of
the powers of government. The Magna Carta is the
spiritual and legal ancestor of the concept of the rule of
law.
With the breakup of the Soviet Union, we have had a
sudden expansion of nation states striving to establish
democratic societies under the rule of law. The rule of
law and the ideals it enforces exist in only part of the
world today. Since September 11th, we have been
reminded that other parts of the world do not share our
notions of the rule of law, or the notion that it is the key
to liberty. But it seems to me that at some level, every
nation state, including Iraq, Iran, and North Korea, has
relations, commerce, and other dealings with other
nations and with businesses in other nations. There is
inevitably the need for the resolution of international
disputes.
The classic statement about how and why
international law is developed was made some years ago
by Louis Henkin. 70 It bears quoting:
Every nation derives some benefits from
international law and international agreements.
70
Louis Henkin was the Hamilton Fish Professor of International
Law and Diplomacy and later the Harlan Fiske Stone Professor of
Constitutional Law at Columbia Law School until he was designated
University Professor in 1981. He is the author of numerous
influential books in international law, foreign relations law, and
human rights and, as the Chief Reporter for the RESTATEMENT OF
THE LAW OF FOREIGN RELATIONS (THIRD), he oversaw the drafting
of this seminal text. Henkin was President of the ASIL from 1992 to
1994 and was co-editor of the AMERICAN JOURNAL OF
INTERNATIONAL LAW from 1976 to 1984.
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Law keeps international society running,
contributes to order and stability, provides a basis
and a framework for common enterprise and
mutual intercourse. Because it limits the actions
of other governments, law enhances each nation's
independence and security. In other ways, too, by
general law or particular agreement, one nation
gets others to behave as it desires. e
Just as we have said since the Paquete Habana case,
"International law is part of our law." f International law,
which is the expression of agreement on some basic
principles of relations between nations, will be a factor
or a force in gaining a greater consensus among all
nations concerning basic principles of relations with
nations that, as of now, are withholding their agreement
on some aspects. It can be, and is, a help in our search
for a more peaceful world.
A broad consensus on how nations should treat
prisoners of war has recently to a degree influenced our
own government in its handling of prisoners taken in
Afghanistan; they were perhaps not technically covered
by the Geneva Convention but they will nevertheless be
treated largely as if they were.
Acting in accord with international norms may
increase the chances for development of broader
alliances, or at least silent support from other nations.
The efforts of each of you who belong to this society to
educate other lawyers and judges, both in the United
States and abroad, about international law really are
efforts well spent. Kofi Annan has said that the rule of
law is essential to peace, development, and the
realization of human rights. The practice of law is a
privilege, but a privilege that carries with it a heavy
responsibility to ensure respect for the law.
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Associate Justice Sandra Day O’Connor
Through the ASIL's efforts, American judges are
becoming more aware of their responsibilities to respect
not only domestic law but also the law of nations. But
more effort is needed. Law schools must ensure that
their students are well versed in the increasingly
international aspects of legal practice. The University of
Michigan Law School has just begun requiring all
students to complete a two-credit course in transnational
law.
Developments like this are surely welcome, but
understanding law in a global context requires more than
reference materials and classroom education. It requires
travel to foreign nations and a dialogue with foreign
jurists and lawyers.
I have been fortunate through my involvement with
CEELI and through the opportunities presented by virtue
of my office to meet with the members of the judiciaries
of many countries. In fact, on September 11th, I arrived
at the airport in New Delhi, India, for a meeting with
representatives of the Indian Supreme Court and other
high courts.
Much of my dialogue with foreign jurists involves
American judges giving guidance to countries
developing their legal systems about how to make them
run more fairly and effectively, but the dialogue has not
been a one-way street. We have learned a great deal
from other nations' jurists, as well.
For instance, I recall vividly how impressed I was
with watching the more efficient selection of jurors in
British courts, and in observing a higher degree of
respect and civility given by lawyers to each other and to
courts in some nations other than our own.
There are, of course, other ways to encounter foreign
legal systems. The New York University Law School,
for instance, has brought foreign law professors to the
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97
United States to share their expertise and perspectives
with students and faculty. Yale Law School has
established a seminar for members of constitutional
courts from around the world.
Developments like these are important if the
American legal profession is going to take seriously the
realities of practice, not only the ways in which
transnational legal issues must be addressed but also the
potential for using the law to make a difference in the
issues facing our world.
In remarks I have given to groups of lawyers since
September 11th, I have noted the need for lawyers in this
difficult time has not decreased, it has increased.
Because of the scope of the problems that we face,
understanding international law is no longer just a legal
specialty. It is becoming a duty.
I like to say we must not be tone deaf to the music of
the law. There are lawyers who never do hear the law's
music as they go through life. Indeed, there are those
who think there is none, who think the law is just a
business, one for which high fees can be charged, and
maybe collected, for the necessary services only a lawyer
can provide.
But if you listen and understand the law's music, to
quote a former law school classmate of mine,
it is a music filled with the logic and clarity of
Bach, the thunder, sometimes overblown and
pompous, of Wagner, the lyrical passion of Verdi
and Puccini, the genius of Mozart, Gershwin's
invention, Rossini and Vivaldi's energy, and
Aaron Copeland's folksy common sense,
Beethoven's majesty, and unfortunately not a
little of the ponderous tedium of Mahler, and the
sterile intellectualism of Schoenberg.
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Associate Justice Sandra Day O’Connor
The words you can hear to the music of the law are
words of equality, justice, fairness, consistency,
predictability, equity, the wrongs righted, and the repose
of disputes settled without violence, without undue
advantage, and without leaving either side with bitter
feelings of having been cheated. It is the music sung in
the world of childlike innocence in which the lion lies
down with the lamb. Perhaps it is not a world that ever
was, or ever will be, but it is a world worth living
toward.
Author’s Notes
a
Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998), cert denied sub
nom. Breard v. Greene, 523 U.S. 371 (1998).
b
Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
c
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
d
See, e.g., Curtis A. Bradley, The Costs of International Human
Rights Litigation, 2 CHI. J. INT’L L. 457 (2001).
e
LOUIS HENKIN, HOW NATIONS BEHAVE 29 (2d ed. 1979).
f
The Paquete Habana, 175 U.S. 677, 700 (1900).
Keynote Address at the Ninety-Seventh Annual Meeting
By Justice Stephen G. Breyer*
Friday, April 4, 2003
Nearly a century ago twenty-four members of the
Mohonk Conference on International Arbitration
founded the American Society of International Law. 71
* Associate Justice, Supreme Court of the United States. Stephen
Breyer began his judicial service as a judge on the U.S. Court of
Appeals for the First Circuit, to which he was nominated in 1980.
He was the First Circuit’s Chief Judge from 1990 to 1994. In 1994
he became an Associate Justice of the Supreme Court of the United
States.
Stephen Breyer received an A.B. with honors from Stanford. He
then attended Oxford University and studied economics at Magdalen
College as a Marshall Scholar, where he earned a B.A. and
graduated First Class Honors in 1961. He entered Harvard Law
School and received an L.L.B., magna cum laude, in 1964.
After graduation, Stephen Breyer was Special Assistant to Assistant
Attorney General Donald Turner (Antitrust) in the Department of
Justice. He then returned to Harvard Law School, teaching there
from 1967 to 1980. During that time, he also acted as Assistant
Special Prosecutor of the Watergate Special Prosecution Force in
1973; Special Counsel on the Subcommittee on Administrative
Practices of the U.S. Senate Judiciary Committee from 1974 to
1975; and Chief Counsel of the U.S. Senate Judiciary Committee
from 1979 to 1980.
71
In 1895, the first Mohonk Conference on International Arbitration
was held at Mohonk Mountain House in New York. The
conferences are credited with helping create the Hague Conferences.
At the Eleventh Annual Mohonk Conference on International
Arbitration in 1905, various conference-goers expressed interest in
99
100
Associate Justice Steven G. Breyer
Elihu Root was the Society's first president. 72 Its vice
presidents included three members of the Supreme
Court—Chief Justice Melville Fuller and Justices David
Brewer and William Day—as well as William Howard
Taft, who would later become first president and then
Chief justice of the United States. 73 Their participation
made it clear that the Court's members understood the
importance of international law and its direct relation to
their work. Many members of the Supreme Court
continue to hold that view—a view that now extends
beyond public international law to embrace foreign law
and legal institutions as well.
Justice Sandra Day O'Connor, for example, has said
that she thinks that "American judges and lawyers can
benefit from broadening our horizons" and that her own
experience on the Court has suggested that "we often
have a lot to learn from other jurisdictions." a Just last
year at this meeting she suggested that "conclusions
reached by other countries and by the international
community should at times constitute persuasive
forming a society devoted to the advancement and the study of
international law. From these discussions grew the American
Society of International Law. See, History of the Organization of the
American Society of International Law, 1 AM SOC. INT’L L. PROC.
13 (1907).
72
Regarding Elihu Root, see supra note 32 to Chief Justice Taft’s
Address to the Sixteenth Annual Meeting.
73
Melville Fuller (1833-1910) served as Chief Justice of the
Supreme Court from 1888 to 1910. David Brewer (1837-1910) was
an Associate Justice of the Supreme Court from 1889 to 1910.
William Day (1849-1923) was an Associate Justice of the Supreme
Court from 1903 to 1922. Both Chief Justice Fuller and Justice
Brewer served as arbitrators to resolve the Venezuela-British
Guyana Boundary Dispute in 1899. Chief Justice Fuller also served
on the Permanent Court of Arbitration.
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101
authority." b Similarly, Justice Ruth Ginsburg has
explained that, in her view," comparative analysis
emphatically is relevant to the task of interpreting
constitutions and enforcing human rights. We are the
losers if we neglect what others can tell us about
endeavors to eradicate bias against women, minorities,
and other disadvantaged groups. For irrational prejudice
and rank discrimination are infectious in our world." c
Justices John Paul Stevens and David Souter have
referred to comparative foreign experience in several
important recent opinions. And I have tried to explain,
both in opinions and public remarks, why I believe
foreign experience is often important to our work.
This afternoon I should like to continue to explain
why so many of us have taken this position. It is not that
we are, in any political sense, "internationalists." Nor
are we trying to move the law in a particular substantive
direction. Rather, our perception of the need and
usefulness of international and foreign law arises out of
our daily experience—experience of the following kinds:
First, we face an increasing number of domestic legal
questions that directly implicate foreign or international
law. We recently had to decide whether the Constitution
permitted Congress to extend the term of copyright from
life of the author plus fifty years to life of the author plus
seventy years. The briefs in the copyright case discussed
European experience extensively, as did our opinions. d
Why? Because the legislative purposes of Congress
included harmonization of European and American laws.
Obviously we had to understand the European system in
order to evaluate that American objective. The same is
true when we interpret American jurisdictional
provisions designed with corporations owned by foreign
states in mind. The growing number of such statutes
reflects the commercial, technological, and political
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Associate Justice Steven G. Breyer
changes that we often use the cliché‚ "globalization" to
describe.
Second, we find an increasing number of issues,
including constitutional issues, where the decisions of
foreign courts help by offering points of comparison.
This change reflects the "globalization" of human rights,
a phrase that refers to the ever-stronger consensus (now
nearly worldwide) on the importance of protecting basic
human rights, the embodiment of that consensus in legal
documents, such as national constitutions and
international treaties, and the related decision to enlist
independent judicianes as instruments to help make that
protection effective in practice. Judges in different
countries increasingly apply somewhat similar legal
phrases to somewhat similar circumstances, for example
with respect to multiracial populations, growing
immigration, economic demands, environmental
concerns, modern technologies, and instantaneous media
communication. Thus it is not surprising to find that the
European Court of Human Rights has issued decisions
on campaign finance laws and free expression or that the
Supreme Court of India has written extensively about
"affirmative action."
Several years ago a professor asked me to name one
instance in which a constitutional cross-country
comparison had proved useful. After thinking about it, I
eventually mentioned a French example involving state
schools and the wearing of the Muslim chador. Today I
would not have to hesitate. One or more of the current
Justices has considered comparative experience in
Eighth Amendment death penalty cases, in federalism
cases, in cases involving right to die statutes, in such
technical matters as the "ancient title" of Massachusetts
to Nantucket Sound, among other instances.
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I recognize that some of my colleagues believe that
comparative analysis is "inappropriate to the task of
interpreting a constitution, though it was of course quite
relevant to the task of writing one." e But comparative
use of foreign constitutional decisions will not lead us
blindly to follow the foreign court. As I have said
before—"we are interpreting our own Constitution, not
those of other nations, and there may be relevant
political and structural differences between their systems
and our own. But their experience may nonetheless cast
an empirical light on the consequences of different
solutions to a common legal problem" f for example, in a
federalism case, "the problem of reconciling central
authority with the need to preserve the liberty-enhancing
autonomy of a smaller constituent governmental entity.”g
Ultimately, I believe the "comparativist" view that
several of us have enunciated will carry the day—simply
because of the enormous value in any discipline of trying
to learn from the similar experience of others.
Third, I would not limit comparative materials to
formal court decisions. We, for example, are not the
only democracy to face a terrorist threat that will likely
require courts to decide just when a constitutional phrase
protective of basic human liberty authorizes a restriction
for reasons of security. It may well be valuable to
determine how other democracies have responded in
similar circumstances.
Relevant descriptions and
analysis may be found in documents readily available on
the Internet. The Council of Europe, for example, has
published guidelines describing application of European
Court precedent in such circumstances. That document
does not bind the United States, but it may help courts
and others to understand the problems.
Fourth, I have found discussions with foreign judges
increasingly valuable with respect to institutional
104
Associate Justice Steven G. Breyer
matters. In the past few months, several of us have met
with members of the Supreme Court of India and
discussed at some length the problem of over-crowded
dockets—too many cases. Many of the Indian judges
believe they can benefit from American methods for
alternative dispute resolution. At the same time, I
thought we might have something to learn from a
mediation program I observed in Gujarat. The program,
called the "women's cell" of a legal aid clinic, puts teams
of three professionals (a lawyer, a clinical psychologist,
and a social worker) to work dealing with the underlying problem that likely led each woman to seek legal
aid. Judging from the lines outside the clinic, the
twenty-four hours a day work schedule, and the
settlement rate, the program seemed to work well. I
could not help but wonder if we in the United States did
not have something to learn from this cross-disciplinary,
problem-based, approach.
Fifth, although I have not seen many traditional
public international law issues arise in the course of my
daily work, I know that there are issues, for example in
death penalty cases, where international treaties and
decisions of international courts may eventually prove
relevant. In one recent death penalty case, the Court
rejected a treaty-based defense on procedural grounds,
leaving open the possibility of such a defense in a case
where there was no procedural default. h The number of
treaties relevant to domestic legal disputes seems to be
rising.
These five different ways in which foreign or
international law has a growing impact on my
professional life lead to several more general
observations. For one thing, my description blurs the
differences between what my law professors used to call
comparative law and public international law. The
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105
difficulty in distinguishing them (at least for present
purposes) may simply reflect reality. The commercial
law of the various states, for example, has become close
to a single, unified body of law, in part through the work
of uniform state law commissioners, in part through a
pattern of similar judicial responses to similar problems,
in part because of the work of intermediate judicial
institutions such as federal bankruptcy courts, in part
because the interstate nature of commercial contracts
means that judges in different states apply each other's
law. Formally speaking, state law is state law, but
practically speaking, much of that law is national, if not
international, in scope.
Analogous developments
internationally, including the emergence of regional or
specialized international legal bodies, tend similarly to
produce cross-country results that resemble each other
more and more, exhibiting common, if not universal,
principles in a variety of legal areas.
These growing institutional and substantive
similarities are important because to a degree they reflect
a common aspiration—a near-universal desire for
judicial institutions that, through guarantees of fair
treatment, help to provide the security necessary for
investment and, in turn, economic prosperity. Through
their respect for basic human liberty, they thus may help
to make that liberty a reality. The force of this
aspiration, I hope and believe, is virtually irresistible.
For another thing, the personal experiences that I
have described suggest an agenda for many in this
organization. Neither I nor my law clerks can easily find
relevant comparative material on our own. The lawyers
must do the basic work: finding, analyzing, and referring
us to that material. There is a chicken-and-egg problem:
the lawyers will do so only if they believe the courts are
receptive. By now, however, it should be clear that the
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Associate Justice Steven G. Breyer
chicken has broken out of the egg. The demand is there.
To supply that demand, the law professors, who teach the
law students, who will become the lawyers, who will
brief the courts, must help to break down barriers
between disciplines, so that criminal law professors, for
example, as well as international law professors
understand the international dimension of their subject;
and they must also break down barriers between the
academy and the bar, and between the international
specialist and the trial or appellate lawyer.
International institutional issues cannot be treated as
if they were exotic hot-house flowers, rarely of relevance
to domestic courts. Those issues, when relevant, must be
briefed fully, with a comprehensive explanation of the
legal relationships between our Court and, say, the
International Court of Justice.
Finally, the transnational law that is being created is
not simply a product of treaty-writers, legislatures, or
courts. We in America know full well that in a
democracy, law, perhaps most law, is not decreed from
on high but bubbles up from the interested publics,
affected groups, specialists, legislatures, and others, all
interacting through meetings, journal articles, the
popular press, legislative hearings, and in many other
ways.
That is the democratic process inaction.
Legislation typically comes long after this process has
been underway. Judicial decisions, particularly from our
Court, work best when they come last, after experience
has made the consequences of legislation apparent.
When I can, I like to remind audiences that I love the
American bar associations, with their six hundred
thousand members and eight hundred thousand
committees, because it is in those committee meetings,
through discussion and debate, that law is created. The
same is true today of much international, or
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transnational, law. Consider the agenda for this meeting,
which considers criminal law, economic law, regional
trade, natural resources, human rights, and terrorism.
The content of these topics—as their labels suggest—is
not uniquely international. The discussions here will
affect the shape of institutions as well as the content of
the law, which will in fact affect people in many
democratic societies.
As my comments indicate, I believe that there is
much fundamental legal and institutional work to be
done. It is important that you are undertaking that work.
I encourage you to continue. I want particularly to
encourage the younger among you, including the
students who are here. What could be more exciting for
an academic, practitioner, or judge than the global legal
enterprise that is now upon us? Wordsworth'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." i
Author’s Notes
a
Sandra Day O'Connor, Keynote Address, 96 ASIL PROC. 348, 350
(2002).
b
Sandra Day O'Connor, Broadening Our Horizons: Why American
Lawyers Must Learn About Foreign Law, INT’L JUS OBSERVER 2
(June 1997).
c
Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action:
An International Human Rights Dialogue, 21 CAP.Doz O L. Rev.
253, 282 (1999).
d
See Eldred v. Ashcroft, 537 U.S. 186 (2003).
e
Printz v. United States, 521 U.S. 898, 921 (1997).
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Associate Justice Steven G. Breyer
f
Id., at 977 (Breyer, J., dissenting).
g
Id.
h
See Breard v. Greene, 523 U.S. 371 (1998).
i
William Wordsworth, French Revolution, THE COMPLETE
POETICAL WORKS (1888).
Keynote Address at the Ninety-Eighth Annual Meeting
Foreign Legal Authority in the Federal Courts
By Justice Antonin G. Scalia*
Friday, April 2, 2004
The subject of my remarks today is the use of foreign
legal materials—statutes and judicial opinions—in the
opinions of U.S. federal courts. I preface my remarks
with the caveat that nothing I say is meant to (nor can I
imagine how it possibly could) suggest a view on the
outcome of any pending case.
* Associate Justice, United States Supreme Court. Antonin Scalia
graduated with an A.B. summa cum laude in history from
Georgetown University. During his undergraduate years, he studied
abroad at the University of Fribourg (Switzerland). Scalia graduated
summa cum laude from Harvard Law School in 1960. Prior to
joining the bench, Scalia was a professor of law at the University of
Virginia, from 1967 to 1971. He subsequently served as general
counsel for the Office of Telecommunications Policy in the
Executive Office of the President from 1971 to 1972; as chairman
for the Administrative Conference of the United States from 1972 to
1974; and as Assistant Attorney General for the Office of Legal
Counsel in the U.S. Department of Justice, from 1974 to 1977. He
returned to teaching, though at the University of Chicago, from 1977
to 1982.
Antonin Scalia took the oath of office for the United States Court of
Appeals for the District of Columbia Circuit on August 17, 1982. He
was subsequently nominated by President Reagan as Associate
Justice to the Supreme Court of the United States and, after Senate
confirmation, took the oath of office September 26, 1986.
109
110
Associate Justice Antonin G. Scalia
The subject of court use of foreign legal materials
turns out to be more timely than I realized when I
suggested it some months ago. On March 17, House
Resolution 568 was introduced in the House of
Representatives. The operative portion of this resolution
reads as follows:
Resolved, That it is the sense of the House of
Representatives that judicial determinations
regarding the meaning of the laws of the United
States should not be based in whole or in part on
judgments, laws, or pronouncements of foreign
institutions unless such foreign judgments, laws,
or pronouncements are incorporated into the
legislative history of laws passed by the elected
legislative branches of the United States or
otherwise inform an understanding of the original
meaning of the laws of the United States.
I do not intend to address the pros or cons of the
resolution, except perhaps in one minor respect that I
will come to later. But I do want to address the general
question of when the use of foreign legal materials is
legitimate.
It is impossible to say that such materials are never
relevant. To take the most obvious example: When
federal courts interpret a treaty to which the United
States is a party, they should give considerable respect to
the interpretation of the same treaty by the courts of
other signatories. Otherwise the whole object of the
treaty, which is to establish a single, agreed-upon regime
governing the actions of all the signatories, will be
frustrated. Thus, in a recent case I dissented from a
decision of the Court that rejected what seemed to me a
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111
perfectly reasonable (though not necessarily inevitable)
interpretation of the Warsaw Convention 74 that had been
arrived at by the courts of two other signatories.
"Foreign constructions," I wrote, "are evidence of the
original shared understanding of the contracting parties.
Moreover, it is reasonable to impute to the parties an
intent that their respective courts strive to interpret the
treaty consistently." a
What about the use of foreign law in determining the
meaning of U.S. statutes? Can one say that is never
appropriate? Probably not. If, for example, the statute
is designed to implement the obligations of the United
States under a treaty, and if one of the two plausible
meanings of the controverted provision has been held by
other signatories to be required by the treaty, I would
think that those judgments should properly be taken into
account. Congress presumably wants to live up to the
treaty, and what the treaty demands should be
determined (as I have said) with appropriate deference to
the reasonable views of other signatories.
Similarly, a federal statute may directly or indirectly
refer to foreign law. It can do so directly when the right
at issue under the federal statute immediately depends
upon foreign law. Two years ago, for example, we had
to decide whether a corporation organized in the British
Virgin Islands was a "citize[n] or subjec[t] of a foreign
state" for purposes of federal diversity jurisdiction. b
Much of our opinion was devoted to consideration of
English law, since whether the corporation was a citizen
or subject of a foreign state depended on its legal status
under foreign law.
74
Convention for the Unification of Certain Rules Relating to
International Carriage by Air, 49 Stat. 3000; 137 LNTS 11 (entry
into force: Feb. 13, 1933).
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Associate Justice Antonin G. Scalia
A statute can refer to foreign law indirectly in various
ways. To take one example, the Foreign Sovereign
Immunities Act opens U.S. courts to suits against foreign
sovereigns when, among other things, property has been
"taken in violation of international law." c But whether
international law has been violated will sometimes
depend on foreign domestic law—for example, who
owned a particular piece of property.
Last (and perhaps least), I suppose foreign statutory
and judicial law can be consulted in assessing the
argument that a particular construction of an ambiguous
provision in a federal statute would be disastrous. If
foreign courts have long been applying precisely the rule
argued against, and disaster has not ensued, unless there
is some countervailing factor at work the argument can
safely be rejected. This is perhaps more precisely
described not as using foreign law but as using the
product of foreign experience.
You will note that I have omitted one instance of
justifiable use that is explicitly permitted by the House
resolution I described: use of foreign law that is
"incorporated into the legislative history" of the statute
(whatever such incorporation consists of). It will come
as no surprise to many of you that I do not accept the
command or expectation of legislative history that I refer
to foreign law, inasmuch as I do not accept the command
or expectation of legislative history regarding anything
else. Congress makes its wishes known in laws; only
statutes—not committee hearings, not floor statements,
not even committee reports—have the approval of both
Houses and of the president that laws require. It is in
fact most improbable that a majority of either House ever
even considered, much less agreed with, that most
"authoritative" of all legislative history, the committee
Selected Speeches
113
report. We must do our best to discern the meaning of
the statute from its text.
I will not go on about this subject. I have a whole
`nother speech about legislative history that I will deliver
to you, on the slightest provocation, some other time.
For the moment, suffice it to say that insofar as the
improper use of foreign materials is concerned, the
House resolution may do more harm than good. All it
takes is a single committee report drafted by a staffer
who spent his junior year abroad, or even a single floor
statement by an out-of-control Italophile, to the effect
that "our understanding of this bill is that it will produce
the desirable state of affairs achieved by the decisions of
the Corte Costituzionale" and—eccolo!—Italian law
becomes relevant to the meaning of the U.S. Code. (This
assumes that courts are bound to accept the instructions
of Congress regarding the use of legislative history,
which is, I think, an open question.)
Let me turn next, if I may, to consideration of the use
of foreign materials in the interpretation of the U.S.
Constitution. In this area, I am happy to advise you, I
probably use more foreign legal materials than anyone
else on the Court, with the possible exception of Justice
Thomas. Of course they are all fairly old foreign legal
materials, and they are all English. Take, for example,
the opinion I wrote for the Court some weeks ago,
dealing with the application of the Confrontation Clause
of the Sixth Amendment. d A full four-and-a-half pages of
the opinion were devoted to the discussion of English
cases and English legal authorities dealing with the right
of confrontation—most of them antedating 1791. That is
because, of course, I take the meaning of the
Confrontation Clause today to be exactly what it was
when it was adopted in 1791; and that meaning, in turn,
depends upon what the framers understood to be the
114
Associate Justice Antonin G. Scalia
right of Englishmen. Of course not all the Justices on
the current Court use English authority in this fashion—
or, more precisely, not all of them use it in this fashion
all of the time. When they choose to, and when they
choose not to, is not a subject I am qualified to discuss.
What about modern foreign legal materials? Do I
ever consider them relevant to constitutional
adjudication? To tell you the truth, I cannot say never.
Only hardly ever. Just as with a case involving statutory
construction, so also with a case involving constitutional
interpretation, the argument is sometimes made that a
particular holding will be disastrous. Here, as there, I
think it entirely proper to point out that other countries
have long applied the same rule without disastrous
consequences. (As I said earlier, that may be more
accurately described not as using foreign legal materials
for interpretive purposes but as considering the
consequences of foreign legal practices for interpretive
purposes.) I have also joined an opinion dealing with the
question of whether there is a constitutional right to
assisted suicide that discussed, in a footnote, the fact that
"[o]ther countries are embroiled in similar debates"—
citing materials from Canada, England, New Zealand,
Australia, and Colombia. e I have no problem with
reciting such interesting background, so long as the laws
of those countries are not asserted to be relevant to the
interpretation of our Constitution. (In the case I
mentioned, they were not.)
It is my view that modem foreign legal materials can
never be relevant to an interpretation of—to the meaning
of—the U.S. Constitution. Sometimes the Court seems
to have agreed with this view. For example, in Printz v.
United States, a case deciding whether the federal
government could press state law officers into service for
Selected Speeches
115
the administration of a federal gun-registration law, the
Court rejected as irrelevant Justice Breyer's assertion that
Switzerland, Germany, and the European Union all
provide that the constituent states must themselves
implement many of the laws enacted by the central
federation. The Court's opinion said, "We think such
comparative analysis inappropriate to the task of
interpreting a constitution, though it was of course quite
relevant to the task of writing one." f
In other cases, however—indeed, in many other
cases—opinions for the Court have used foreign law for
the purpose of interpreting the Constitution. The first
such use I am familiar with occurred in 1958, in a case
involving the Eighth Amendment—the Cruel and
Unusual Punishments Clause. In Trop v. Dulles, the
Court held that the Eighth Amendment forbids the
penalty of forfeiture of citizenship because, inter alia,
"[t]he civilized nations of the world are in virtual
unanimity that statelessness is not to be imposed as
punishment for crime." g
Reliance upon foreign law has been made with
increasing frequency in Eighth Amendment cases. In
Coker v. Georgia, the Court noted that "out of 60 major
nations in the world surveyed in 1965, only 3 retained
the death penalty for rape where death did not ensue." h
In Enmund v. Florida, the Court observed that "the
doctrine of felony murder has been abolished in England
and India, severely restricted in Canada and a number of
other Commonwealth countries, and is unknown in
continental Europe." i In Thompson v. Oklahoma, the
Court noted that "other nations that share our AngloAmerican heritage, and…the leading members of the
Western European community" oppose the death penalty
for a person less than sixteen years old at the time of his
offense.' j (I might interject that almost all of them also
116
Associate Justice Antonin G. Scalia
oppose the death penalty for a person more than sixteen
years old—but never mind.) And in Atkins v. Virginia,
the Court thought it relevant that "within the world
community, the imposition of the death penalty for
crimes committed by mentally retarded offenders is
overwhelmingly disapproved. k
Recently, the Court has expanded the use of foreign
law in constitutional interpretation beyond the area of the
Eighth Amendment. In Lawrence v. Texas, the Court
relied upon an action of the British Parliament and a
decision of the European Court of Human Rights in
declaring laws punishing homosexual conduct to be
unconstitutional. l Individual Justices have urged the
relevance of foreign law in other cases. For example, in
Nixon v. Shrink Missouri Government PAC, two justices
relied on foreign campaign finance law in deciding what
the First Amendment permitted our states to do, m and in
Printz v. United States, two Justices relied on foreign law
to argue against an anticommandeering rule of American
federalism. n
For three reasons, I expect—or rather, I fear—that
the Court's use of foreign law in the interpretation of the
Constitution will continue at an accelerating pace.
First, the "living Constitution" paradigm for the task
of constitutional interpretation prevails on the Court—
and indeed in the legal community generally. Under this
view, it is the task of the Court to make sure that the
current Constitution comports with (as we have put the
point in the Eighth Amendment context) "the evolving
standards of decency that mark the progress of a
maturing society." o Thus, a constitutional right to
abortion, which assuredly did not exist during the first
few centuries of our country's existence, does exist
Selected Speeches
117
today. Likewise, a constitutional right to homosexual
conduct.
Of course I disagree with this approach, but my
purpose here is not to debate originalism. Rather, my
point is that once you assume the power to revise what
the Constitution requires, the criticism voiced by the
Court in Printz—that "comparative analysis [is]
inappropriate to the task of interpreting a constitution,
though it was of course quite relevant to the task of
writing one"—no longer has any bite. You are engaged
in the process of writing a constitution, and there is no
reason foreign materials should not be used along with
all others.
Some living constitutionalists, I suppose, might
object that they are creating only a living American
constitution, and that foreign materials ought to be
irrelevant to that enterprise. That is certainly a rational
position. It is not, however, one that I think likely to
prevail, because I do not think very many living
constitutionalists are likely to be what you might call
chauvinistic living constitutionalists—that is, dedicated
to effecting only those changes in the Constitution that
the American people desire. The American people can
make their will well enough known by creating new
rights legislatively, through the federal and state
legislatures—or, in the last analysis, by amending the
Constitution in the democratic method the document
provides. One who believes it falls to the courts to
update the list of rights guaranteed by the Constitution
tends to be one who believes in a Platonic right and
wrong in these matters, which wise judges are able to
discern when the people at large cannot. That is
certainly confirmed by several of our constitutionally
revisionist decisions (particularly in the First
Amendment field) that fly in the face of current
118
Associate Justice Antonin G. Scalia
American public opinion. It is easy to see how an
originalist such as I could arrive at such an opinion; or a
Platonic living constitutionalist; but not a living
constitutionalist dedicated to expressing the current
mores of the American people. And—to come finally to
my point—the Platonic living constitutionalist must
surely consider the views of all intelligent segments of
mankind. So, since in my view the vast majority of
living constitutionalists will be Platonic, foreign law is
destined to be more and more consulted.
The second reason foreign law is likely to be used
increasingly in our living-constitution decisions is Sir
Edmund Hillary's reason: Because it's there. Let's face
it. It's pretty hard to put together a respectable number
of pages setting forth (as a legal opinion is supposed to
do) analytical reasons for newly imposed constitutional
prescriptions or prohibitions that do not at all rest (as the
original Bill of Rights did not rest) upon logic or
analysis, but rest instead upon one's moral sentiments,
one's view of natural law, one's philosophy, or one's
religion.
How can one explain, logically and
analytically, why government limitation of sexual
freedom by rendering bigamy or adultery or incest a
crime is perfectly constitutional, while its limitation of
sexual freedom by making homosexual relations a crime
is not?
Decisions on such matters (whether taken
democratically by society or undemocratically by courts)
have nothing to do with logical analysis. So, without
something concrete to rely upon, judicial opinions will
be driven to such philosophic or poetic explanations as
"At the heart of liberty is the right to define one's own
concept of existence, of meaning, of the universe, and of
the mystery of human life." p Surely not a happy state of
Selected Speeches
119
affairs for a court of law. It will seem much more like a
real legal opinion if one can cite authority to support the
philosophic, moral, or religious conclusions pronounced.
Foreign authority can serve that purpose.
The third reason foreign law will be increasingly
used is an intensely pragmatic one: Adding foreign law
to the box of available legal tools is enormously
attractive to judges because it vastly increases the scope
of their discretion. In that regard it is much like
legislative history, which ordinarily contains something
for everybody and can be used or not used, used in one
part or in another, deemed controlling or pronounced
inconclusive, depending upon the result the court wishes
to reach.
Consider: In Lawrence, the Court cited European law
to strike down sodomy laws. But of course Europe is not
representative: Zero out of fifty countries in Europe
prohibit sodomy (not necessarily because of the
democratic preference of fifty countries but because of
the uniformity imposed by the European Court of
Human Rights).
But thirty-three out of fifty-one
countries in Africa (65 percent) prohibit it; eight out of
forty-three countries in the Americas (19 percent) now
prohibit it; twenty-seven out of forty-seven Asian Pacific
countries (57 percent) prohibit it; and eleven out of
fourteen countries in the Middle East (79 percent)
prohibit it. q Thus, the rest of the world aside from
Europe is almost evenly split (seventy-nine prohibit,
seventy-six do not). Moreover, nine countries that
prohibit sodomy authorize the death penalty for it. r
The Court's reliance has also been selective as to
when foreign law is consulted at all. For example,
although the United States was in the minority in
allowing states to prohibit sodomy, it was not in the
minority in allowing states to restrict abortion.
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Associate Justice Antonin G. Scalia
According to the United Nations, it is now one of only
fifty-three countries classified as allowing abortion on
demand, versus 139 allowing it only under particular
circumstances or not at all. s Among those countries the
UN classified in 2001 as not allowing abortion on
demand are the United Kingdom, Finland, Iceland, India,
Ireland, Japan, Luxembourg, Mexico, New Zealand,
Portugal, Spain, Switzerland, and virtually all of South
America. t The Court has generally ignored modem
foreign law in its abortion cases. Casey does not
mention it at all; u Roe discusses only modem British law
(which in any event is more restrictive than what Roe
held). v I will become a believer in the ingenuousness
(though never in the propriety) of the Court's newfound
respect for the wisdom of foreign minds when it applies
that wisdom in the abortion cases.
I hope I have made it clear that my belief that use of
foreign law in our constitutional decisions is the wave of
the future does not at all suggest I think it is a good idea.
I do not. The men who founded our republic did not
aspire to emulating Europeans, much less the rest of the
world. I wrote an opinion for the Court last month
overruling an earlier case which had held that the
Confrontation Clause is satisfied so long as the
unconfronted testimony has "particularized guarantees of
trustworthiness." w The opinion points out that the
Confrontation Clause was designed precisely to prevent
use of a procedure considered trustworthy by continental
European nations and others that followed the civil-law
tradition.
"Examinations of witnesses upon
Interrogatones," wrote John Adams, "are only by the
Civil Law. Interrogatories are unknown at common Law,
and Englishmen and common Lawyers have an aversion
to them if not an Abhorrence of them." x As recently as
Selected Speeches
121
1993, France was still defending its use of exparte
testimony before the European Court of Human Rights,
arguing that the defendant's accusers in a drug trafficking
case had a "legitimate interest in remaining anonymous"
and that the defendant's rights were adequately protected
so long as the "judge held hearings which enabled him to
satisfy himself' that the witnesses stood by their
statements. y
Should we have loosened up our Confrontation
Clause in light of foreign opinion on the subject? France
permits suits against the executive branch only in an
executive-branch court—the Conseil d'Etat, whose
members are appointed and promoted by the executive
and regularly alternate between performing executive
functions and adjudicating the lawfulness of executive
actions. (Other European countries have somewhat
similar systems, though the extent of the adjudicators'
participation in executive functions may be more
limited.) This is a practice that Tocqueville contrasted
unfavorably with our own as long ago as 1835. z Should
we change our mind?
In number 46 of The Federalist, James Madison
speaks contemptuously of the governments of Europe,
which are "afraid to trust the people with arms." aa
Should we revise the Second Amendment because of
what these other countries think? In November 2002 the
Council of Europe approved an "Additional Protocol to
the Convention on Cybercrime" that would make it
illegal to distribute anything online that "advocates,
promotes or incites hatred [or] discrimination." bb A
spokesman for the United States Department of Justice
said (quite correctly) that this country could not be a
party to such a treaty because of the First Amendment. cc
If all of Europe thinks that such a provision does not
122
Associate Justice Antonin G. Scalia
unduly limit speech, should we reconsider? I could go
on…
If there was any thought absolutely foreign to the
founders of our country, surely it was the notion that we
Americans should be governed the way Europeans are.
And nothing has changed. I dare say that few of us here
would want our life or liberty subject to the disposition
of French or Italian criminal justice—not because those
systems are unjust, but because we think ours is better.
What reason is there to believe that other dispositions of
a foreign country are so obviously suitable to the morals
and manners of our people that they can be judicially
imposed through constitutional adjudication? Is it really
an appropriate function of judges to say which are and
which are not?
Believe it or not, I am far from an enemy of
comparative studies—or of Europeans. I used to teach
comparative law, and I believe we have much to learn
from the practices and the experiences of other countries,
particularly other countries of the West. Comparative
study is useful, however, not as a convenient means of
facilitating judicial updating of the U.S. Constitution, but
as a source of example and experience that we may use,
democratically, to change our laws—or even, if it is
appropriate, democratically to change our Constitution.
Author’s Notes
a
Olympic Airways v. Husain, 124 S. Ct. 1221, 1232 (2004) (Scalia,
J., dissenting).
b
JPMorgan Chase Bank v. Traffic Stream (BVJ) Infrastructure Ltd.,
536 U.S. 88, 91(2002).
c
28 U.S.C. §1605(a)(3).
Selected Speeches
d
Crawford v. Washington, 124 S. Ct. (2004).
e
Washington v. Glucksberg, 521 U.S. 702, 718 n.16 (1997).
f
Printz v. United States, 521 U.S. 898, 921 n.11 (1997).
g
356 U.S. 86, 102—03 (1958).
h
433 U.S. 584, 596 n.10 (1977).
i
458 U.S. 782, 796 n,22 (1982).
j
487 U.S. 815, 830—31 (1988).
k
536 U.S. 304, 316 n.21 (2002).
l
539 U.S. 558, 572Ä73, 576 (2003).
123
m
528 U.S. 377, 403 (2000) (Breyer & Ginsburg, JJ., concurring).
n
521 U.S. 898, 976Ä77 (1997) (Breyer & Stevens, JJ., dissenting).
o
Trop v. Duties, 356 U.S. 86, 101 (1958).
p
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851(1992).
q
See Bob Summersgill, Sodomy Laws: Laws Around the World
(Dec. 14, 2003), available at <http://www.sodomylaws.org/world/
world.htm>.
r
Ibid.
s
See 1-3 UN Dep't of Econ. & Soc. Affairs, Abortion Policies: A
Global Review (2001).
t
Ibid.
u
505 U.S. 833.
v
410 U.S. 113, 136-38(1973).
124
Associate Justice Antonin G. Scalia
w
Crawford, 124 S. Ct. 1354.
Draft of Argument in Sewall v. Hancock (1768-1769), in 2 LEGAL
PAPERS OF JOHN ADAMS 194,207 (K. Wroth & H. Zobel eds. 1965),
quoted in Crawford, 124 S. Ct. at 1362.
x
y
Saidi v. France, 17 E.H.R.R. 251, 263 (1993).
z
A. DE TOCQUEVILLE, DEMOCRACY
& D. Winthrop trans. 2000).
IN
AMERICA 99 (H. Mansfield
aa
THE FEDERALIST No. 46, at 247 (G. Carey& J. McClellan eds.
2001).
bb
Additional Protocol to the Convention on Cybercrime, concerning
the Criminalisation of Acts of a Racist and Xenophobic Nature
Committed through Computer Systems, CETS No. 189, art. 2(1)
(opened for signature Jan. 28, 2003).
cc
Declan McCullagh, U.S. Won't Support Net "Hate Speech" Ban,
CNet News, Nov. 15, 2002.
Keynote Address at the Ninety-Ninth Annual Meeting
"A Decent Respect to the Opinions of [Human]kind":
The Value of a Comparative Perspective in
Constitutional Adjudication
By Justice Ruth Bader Ginsburg*
Friday, April 1, 2005
The Old Testament Book of Deuteronomy famously
instructs: "Justice, justice shall you pursue, that you may
thrive." My remarks center on one aspect of that pursuit,
judicial review for constitutionality. I will present
variations on a theme elaboratively developed by Justice
Michael Kirby in his March 29 Grotius Lecture.75 There
* Associate Justice, Supreme Court of the United States. Ruth Bader
Ginsburg received a B.A. with high honors from Cornell University,
attended Harvard Law School (where she was invited to join the
Harvard Law Review), and received her LL.B. from Columbia Law
School, where she was on the Columbia Law Review and graduated
at the top of her class.
After clerking for Honorable Edmund L. Palmieri, Judge of the
United States District Court for the Southern District of New York,
from 1961 to 1963, she was a research associate and then associate
director of the Columbia Law School Project on International
Procedure.
Subsequent
academic
appointments
include
professorships at Rutgers University School of Law (1963–1972)
and Columbia Law School (1972–1980). Ruth Bader Ginsburg was
the first woman to become a tenured member of the Columbia Law
School faculty. She also served as the General Counsel of the ACLU
from 1973 to 1980. In 1980, she was appointed a Judge of the
United States Court of Appeals for the District of Columbia. Ruth
Bader Ginsburg was appointed to the United States Supreme Court
in 1993.
125
126
Associate Justice Ruth Bader Ginsburg
will be some overlap, but I hope you will not find it
undue.
I will address, specifically, the evolving
appreciation that U. S. judges are not alone in the
endeavor to interpret fundamental human rights norms
and apply them to concrete cases. What impact, if any,
that reality should have on our decisionmaking has
proved controversial, as this audience well knows.
Before taking up the diversity of opinions on this
matter, I will state and endeavor to explain my view,
which is simply this: If U. S. experience and decisions
can be instructive to systems that have more recently
instituted or invigorated judicial review for
constitutionality, so we can learn from others now
engaged in measuring ordinary laws and executive
actions against charters securing basic rights.
Exposing laws and official acts to judicial review for
constitutionality was once uncommon outside the United
States. In the United Kingdom, not distant from France,
Spain, Germany and other civil law countries in this
regard, court review of legislation for compatibility with
a fundamental charter was considered off limits,
irreconcilable with the doctrine of parliamentary
supremacy. But particularly in the years following
World War II, many nations installed constitutional
review by courts as one safeguard against oppressive
government and stirred-up majorities.
National,
multinational and international human rights charters and
courts today play a prominent part in our world. The U.
S. judicial system will be the poorer, I believe, if we do
not both share our experience with, and learn from, legal
75
Justice Michael Kirby was appointed to the High Court of
Australia in 1996. He had previously served as the UN Special
Representative in Cambodia and as President of the International
Commission of Jurists.
Selected Speeches
127
systems with values and a commitment to democracy
similar to our own.
Very much the same opinion was several times
expressed by the Chief Justice of the United States,
William H. Rehnquist, most recently in a 1999 Foreword
to a collection of essays on comparative constitutional
law. The Chief wrote:
[F]or nearly a century and a half, courts in the
United States exercising the power of judicial
review [for constitutionality] had no precedents
to turn to except their own, because our courts
alone exercised this sort of authority. When many
new constitutional courts were created after the
Second World War, these courts naturally looked
to decisions of the Supreme Court of the United
States, among other sources, for developing their
own law. But now that constitutional law is
solidly grounded in so many countries, it [is] time
the U. S. courts began looking to the decisions of
other constitutional courts to aid in their own
deliberative process.
(Of late, I must acknowledge, my Chief has expressed
disagreement on the relevance of foreign law,
particularly on questions implicating the allocation of
regulatory and decisionmaking authority between state
and federal governments in the United States. I will later
refer to 21st-century dissenting opinions he joined
criticizing comparative sideglances by the Court's
majority.)
Returning to my own perspective, while U. S.
jurisprudence has evolved over the course of two
centuries of constitutional adjudication, we are not so
wise that we have nothing to learn from other democratic
128
Associate Justice Ruth Bader Ginsburg
legal systems newer to judicial review for
constitutionality. The point was well made by Second
Circuit Judge, former Dean of Yale Law School, Guido
Calabresi: "Wise parents," Judge Calabresi said in a 1995
concurring opinion, "do not hesitate to learn from their
children." 76
In the value I place on comparative dialogue - on
sharing with and learning from others - I am inspired by
counsel from the founders of the United States. The
drafters and signers of the Declaration of Independence
cared about the opinions of other peoples; they placed
before the world the reasons why the States, joining
together to become the United States of America, were
impelled to separate from Great Britain. The Declarants
stated their reasons out of "a decent Respect to the
Opinions of Mankind." To that end, they presented a
long list of grievances, submitting the "Facts" - the "long
Train of [the British Crown's] Abuses and Usurpations" to the scrutiny of "a candid World."
The Supreme Court, early on, expressed a
complementary view: The judicial power of the United
States, the Court said in 1816, was intended to include
cases "in the correct adjudication of which foreign
nations are deeply interested . . . [and in] which the
principles of the law and comity of nations often form an
essential inquiry."
"Far from [exhibiting hostility] to foreign countries'
views and laws," Professor Vicki Jackson of the
Georgetown law faculty told a congressional committee
last year, "the founding generation showed concern for
how adjudication in our courts would affect other
76
Justice Ginsburg is referring to United States v. Then, 56 F. 3d
464, 469 (N.D.N.Y. 1995).
Selected Speeches
129
countries' regard for the United States." 77 Even more so
today, the United States is subject to the scrutiny of "a
candid World." What the United States does, for good or
for ill, continues to be watched by the international
community, in particular, by organizations concerned
with the advancement of the "rule of law" and respect for
human dignity.
The new United States looked outward not only to
earn the respect of other nations. In writing the
Constitution, the Framers looked to other systems and to
thinkers from other lands for inspiration, and they
understood that the new nation would be bound by "the
Law of Nations," today called international law. Among
powers granted the U. S. Congress, the Framers
enumerated in Article I the power "[t]o define and punish
. . . Offences against the Law of Nations."
John Jay, one of the authors of The Federalist Papers
and the first Chief Justice of the United States, wrote in
1793 that the United States, "by taking a place among the
nations of the earth, [had] become amenable to the laws
of nations." Eleven years later, Chief Justice John
Marshall cautioned that "an act of Congress ought never
to be construed to violate the law of nations if any other
possible construction remains." And in 1900, the Court
77
See Appropriate Role of Foreign Judgments in the Interpretation
of American Law: Hearing Before the H. Comm. on the Judiciary
108th Cong., Mar. 25, 2004 (Statement of Vicki C. Jackson, Prof. of
Law, Geo. U. L. Center) (CIS-No.: 2004-H521-20), available at
http://commdocs.house.gov/committees/judiciary/hju92673.000/hju
92673_0.HTM#33.
At the time of this writing, Vicki Jackson is a professor of law at
Georgetown University Law Center. She has previously served as a
Deputy Assistant Attorney General in the Office of the Legal
Counsel of the Department of Justice.
130
Associate Justice Ruth Bader Ginsburg
famously reaffirmed in The Paquete Habana 78 that
“[i]nternational law is part of our law, and must be
ascertained and administered by the courts of justice . . . .
[W]here there is no treaty, and no controlling executive
or legislative act or judicial decision, resort must be had
to the customs and usages of civilized nations.”
There are generations-old and still persistent
discordant views, I acknowledge, on recourse to the
"Opinions of Mankind." A mid-19th century U. S. Chief
Justice expressed opposition to such recourse in an
extreme statement. He wrote:
No one, we presume, supposes that any change in
public opinion or feeling . . . in the civilized
nations of Europe or in this country, should
induce the [U. S. Supreme Court] to give the
words of the Constitution a more liberal
construction . . . than they were intended to bear
when the instrument was framed and adopted.
Those words were penned in 1857. They appear in
Chief Justice Roger Taney's opinion for a divided Court
in Dred Scott v. Sandford, 79 an opinion that invoked the
majestic Due Process Clause to uphold one human's right
to hold another in bondage. The Dred Scott decision
declared that no "descendan[t] of Africans [imported into
the United States], and sold as slaves" could ever
become a citizen of the United States.
While the Civil War and the Thirteenth, Fourteenth,
and Fifteenth Amendments reversed that judgment, there
remains among U. S. jurists considerable skepticism on
78
175 U.S. 677 (1990).
79
60 U.S. 393 (1856).
Selected Speeches
131
the propriety of looking beyond our nation's borders,
particularly on matters touching fundamental human
rights. Some have expressed downright opposition.
Justice Scalia wrote this year, in a dissenting opinion
joined by the Chief Justice and Justice Thomas: The
Court "should cease putting forth foreigners' views as
part of the reasoned basis of its decisions. To invoke
alien law when it agrees with one's own thinking, and
ignore it otherwise, is not reasoned decisionmaking, but
sophistry."
Another trenchant critic, Seventh Circuit Judge
Richard Posner, commented last year: "To cite foreign
law as authority is to flirt with the discredited . . . idea of
a universal natural law; or to suppose fantastically that
the world's judges constitute a single, elite community of
wisdom and conscience." Judge Posner's view rests, in
part, on the concern that U. S. judges do not comprehend
the social, historical, political, and institutional
background from which foreign opinions emerge. Nor
do we even understand the language in which laws and
judgments, outside the common law realm, are written.
Judge Posner is right, of course, to this extent:
Foreign opinions are not authoritative; they set no
binding precedent for the U. S. judge. But they can add
to the store of knowledge relevant to the solution of
trying questions. As to our ignorance of foreign legal
systems, just as lawyers can learn from each other in
multinational transactions and bar associations, judges,
too, can profit from exchanges and associations with
jurists elsewhere. Yes, we should approach foreign legal
materials with sensitivity to our differences and
deficiencies, but those differences and deficiencies, I
believe, should not lead us to abandon the effort to learn
what we can from the experience and good thinking
foreign sources may convey. a
132
Associate Justice Ruth Bader Ginsburg
Somewhat more accommodating, Ninth Circuit
Judge Diarmuid O'Scannlain stated in remarks made last
fall at the Institute of Advanced Legal Studies in
London: "[Judges] both in the United States and in other
countries [should] be cautious about engaging in
comparative constitutional analysis" for "our respective
countries and legal systems remain distinct in several
important respects." "[L]imited references to foreign
legal authorities may play a beneficial role in
contemporary American jurisprudence," he said, but
"courts in the United States should restrict the use of
foreign legal authorities to certain well-defined
categories of cases": when treaties or international
conventions are relevant, first and foremost, and also
when our Congress "has expressed a desire to bring the
United States into alignment with the international
community."
Judge O'Scannlain gave as examples two opinions I
wrote for the Court. The first, El Al Israel Airlines, Ltd.
v. Tsui Yuan Tseng, 80 relied on a House of Lords' decision
interpreting the Warsaw Convention's limitations on
airline liability for injury to a passenger; the second,
Eldred v. Ashcroft, 81 upheld against constitutional
challenge a statute conforming our copyright term to the
European Union's "life plus seventy years." Judge
O'Scannlain's presentation placed him in accord with
Fourth Circuit Judge J. Harvie Wilkinson, III, who
cautioned against looking abroad when resolving
"contentious social issues."
More representative of the perspective shared by six
of my current colleagues, Patricia M. Wald, former Chief
80
525 U.S. 155 (1999).
81
537 U.S. 186 (2003).
Selected Speeches
133
Judge of the D.C. Circuit, last year said with
characteristic wisdom: "It's hard for me to see that the
use of foreign decisional law is an up-or-down
proposition. I see it rather as a pool of potential and
useful information and thought that must be mined with
caution and restraint."
Several members of the U. S. Congress would
terminate all debate over whether U. S. courts should
refer to foreign or international legal materials. For the
most part, they would respond to the question with a
resounding "No." Two identical Resolutions, one
recently introduced in the U. S. House of
Representatives and the other in the Senate, declare that
"judicial interpretations regarding the meaning of the
Constitution of the United States should not be based . . .
on judgments, laws, or pronouncements of foreign
institutions" unless such materials "inform an
understanding of the original meaning of the
Constitution." The House Resolution has garnered
support from 49 cosponsors. These two Resolutions
recycle similar measures proposed in the 108th
Congress, but never put to a vote. Although I doubt the
Resolutions will pass in this Congress, it is disquieting
that they have attracted sizable support.
To a large extent, I believe, the critics in Congress
and in the media misperceive how and why U. S. courts
refer to foreign and international court decisions. The
Washington Post, for example, worried in a March 25
editorial "about the implications for liberty and the
democratic rights of the American people if the courts
outsource America's constitutional tradition." 82 We refer
to decisions rendered abroad, it bears repetition, not as
82
Outsourcing Rights, WASH. POST, March 25, 2005 at A18.
134
Associate Justice Ruth Bader Ginsburg
controlling authorities, but for their indication, in Judge
Wald's words, of "common denominators of basic
fairness governing relationships between the governors
and the governed."
Professor Vicki Jackson noted the "negative value"
comparative sideglances may sometimes have. She
referred in this regard to the "Steel Seizure Case." 83
There, Justice Jackson, in his separate opinion, pointed
to features of the Weimar Constitution in Germany that
allowed Adolf Hitler to assume dictatorial powers. He
contrasted Germany's situation with that of France and
Great Britain, countries in which legislative
authorization was required for the exercise of emergency
powers. Justice Jackson drew from that comparison
support for the conclusion that, without more specific
congressional authorization, the U. S. President could
not seize private property in aid of a war effort.
Our own Constitution, Justice Scalia has noted, does
not contain any instruction resembling South Africa's
prescription. That nation's Constitution provides that
courts, when interpreting the Bill of Rights, must
consider international law, and may consider foreign law.
Other post-World War II Constitutions, India's and
Spain's, for example, have similar prescriptions.
I would demur to Justice Scalia's observation.
Judges in the United States are free to consult all manner
of commentary - Restatements, Treatises, what law
professors or even law students write copiously in law
reviews, for example. If we can consult those writings,
why not the analysis of a question similar to the one we
confront contained in an opinion of the Supreme Court
of Canada, the Constitutional Court of South Africa, the
German Constitutional Court, or the European Court of
83
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Selected Speeches
135
Human Rights? Israel's Chief Justice, Aharon Barak,
had it right, I think, when he listed among questions on
which comparative law inquiry could prove enlightening
or valuable in a positive or negative sense: hate speech,
privacy, abortion, the death penalty, and now the fight
against terrorism.
A case in point. On December 16, 2004, in a
controversy precipitated by the fight against terrorism,
the Lords of Appeal issued a way paving decision, one
that looks beyond the United Kingdom's borders. The
case was brought by aliens held in custody at Belmarsh
prison. A nine-member panel ruled, 8-to-1, that the
British government's indefinite detention of foreigners
suspected of terrorism, without charging or trying them,
is incompatible with the European Convention on
Human Rights, incorporated into domestic law by the
U. K. Human Rights Act. 84 Lord Bingham's lead opinion
draws not only on domestic decisions and decisions of
the European Court of Human Rights. It also refers to
opinions of the Supreme Court of Canada and U. S.
federal court opinions. Finding the differential treatment
of nationals and non-nationals impermissible under the
European Convention, Lord Bingham also referred to
several U. N. instruments, commencing with the 1948
Universal Declaration of Human Rights and including
the 1965 International Convention on the Elimination of
All Forms of Racial Discrimination.
Other opinions in that noteworthy decision also
referred to Canadian and U. S. opinions. One example:
Baroness Hale (the first woman ever to be named a Law
Lord), after noting that "Belmarsh is not the British
84
A (FC) and others (FC) (Appellants) v. Secretary of State for the
Home Department (Respondent), available at http://www.publicatio
ns.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htm.
136
Associate Justice Ruth Bader Ginsburg
Guantanamo Bay," quoted a passage on the protection of
minority rights from Thomas Jefferson's inaugural
address. The New York Times called the Lords' ruling "a
strong example of the increasing interdependence of
domestic and international law, at least outside of the
United States." 85 Parliament, I should add, just last
month (March 11), reacted to the Lords' decision by
enacting as part of an antiterrorism law, a provision that
allows the placement of terrorist suspects under a highly
restrictive form of house arrest, in lieu of imprisonment,
again without charging or trying them.
The notion that it is improper to look beyond the
borders of the United States in grappling with hard
questions has a close kinship to the view of the U. S.
Constitution as a document essentially frozen in time as
of the date of its ratification. I am not a partisan of that
view. U. S. jurists honor the Framers' intent "to create a
more perfect Union," I believe, if they read our
Constitution as belonging to a global 21st century, not as
fixed forever by 18th-century understandings.
Justice Oliver Wendell Holmes, Jr. made the point
felicitously in a case decided in 1920, Missouri v.
Holland, 86 involving the treaty-making power. "[W]hen
we are dealing with words . . . [in] the Constitution of the
United States," Holmes wrote, "we must realize that they
have called into life a being the development of which
could not have been foreseen completely by the most
gifted of its begetters . . . . The case before us must be
considered in the light of our whole experience and not
merely in that of what was said a hundred years ago."
85
Lizette Alvarez, British Court Says Detentions Violate Rights,
N.Y. TIMES, Dec. 17, 2004, at A1.
86
252 U.S. 416 (1920).
Selected Speeches
137
A key 1958 plurality opinion, Trop v. Dulles, 87
sounds the same theme. At issue in that case, the proper
reading of the Eighth Amendment's ban on "cruel and
unusual punishments." "The basic concept underlying
the . . . Amendment," the opinion observed, "is nothing
less than the dignity of man."
Therefore the
constitutional text "must draw its meaning from the
evolving standards of decency that mark the progress of
a maturing society." In that regard, the plurality
observed: "The civilized nations of the world are in
virtual unanimity that statelessness is not to be imposed
as punishment for crime."
A fairly recent example of frozen-in-time
interpretation is Grupo Mexicano de Desarrollo, S. A. v.
Alliance Bond Fund, Inc., 88 a 1999 decision involving no
grand constitutional question, simply equity between
parties with no ideological score to settle. The basic
scenario: A Mexican company defaulted on payments
due to a U. S. creditor and was sued in a Federal District
Court, which had personal jurisdiction over the debtor.
Sliding into insolvency, the Mexican company was
busily distributing what remained of its assets to its
Mexican creditors. It did so in clear violation of a
contractual promise to treat the U. S. creditor on par with
all other unsecured unsubordinated creditors.
Continuation of that activity would leave nothing in the
till for the U. S. creditor.
Since 1975, British courts have been providing a
remedy in similar circumstances. To assure that there
will be assets against which a final judgment for the
plaintiff creditor can be executed, courts in the United
87
356 U.S. 86 (1958).
88
527 U.S. 308 (1999).
138
Associate Justice Ruth Bader Ginsburg
Kingdom issued Mareva injunctions, so named for the
second case which approved the practice. b A Mareva
injunction temporarily restrains a foreign debtor from
transferring assets pending adjudication of the domestic
creditor's claim.
A U. S. District Court, ruling over two decades after
the leading U. K. decisions, looked to the Mareva
injunction, which other common-law nations had by then
adopted, and found it altogether fitting for the U. S.
creditor's case against the Mexican debtor. The Court of
Appeals agreed. But a 5-4 majority of the U. S. Supreme
Court concluded that Mareva injunctions were not
"traditionally accorded by courts of equity" at the time
the Constitution was adopted. A power that English
courts of equity "did not actually exercise . . . until
1975," the Court concluded, was not one U. S. courts
could assume.
Joined by Justices Stevens, Souter, and Breyer, I
dissented from the Court's static conception of equitable
remedial authority. Earlier decisions described that
authority as supple, adaptable to changing conditions. I
noted, among other things, that federal courts, in their
sometimes heroic efforts to implement the public school
desegregation mandated by Brown v. Board of
Education, did not embrace a frozen-in-time view of
their equitable authority. Issuing decrees "beyond the
contemplation of the 18th-century Chancellor," they
applied the enduring principles of equity to the changing
needs of a society still in the process of achieving "a
more perfect Union."
Turning from frozen-in-time interpretation, I will
take up another shortfall or insularity in current U. S.
jurisprudence, at least as I see it. The Bill of Rights, few
would disagree, is the hallmark and pride of the United
States. One might therefore assume that it guides and
Selected Speeches
139
controls U. S. officialdom wherever in the world they
carry the flag of the United States or their credentials.
But that is not the currently prevailing view. For
example, absent an express ban by treaty, a U.S. officer
may abduct a foreigner and forcibly transport him to the
United States to stand trial. The Court so held, 6-to-3, in
1992. 89 Just a year earlier, South Africa's Supreme Court
of Appeal had ruled the other way. It determined that
under South Africa's common law, a trial court has no
jurisdiction to hear a case against a defendant when the
State had acted lawlessly in apprehending him by
participating in an abduction across international
borders.
Another example, one in which I was a participant,
involving civil litigation: Interpreting U. S. Supreme
Court precedent, the D.C. Circuit held in 1989, during
my tenure on that court and over my dissent, that foreign
plaintiffs acting abroad - plaintiffs were Indian family
planning organizations - had no First Amendment rights,
and therefore no standing to assert a violation of such
rights by U. S. officials. In dissent, I resisted the notion
that in an encounter between the United States and
nonresident aliens, "the amendment we prize as 'first' has
no force in court." I expressed the expectation that the
position taken in the Restatement (Third) of Foreign
Relations would one day accurately describe our law.
"[W]herever the United States acts," the Restatement
projects, "'it can only act in accordance with the
limitations imposed by the Constitution.'"
89
United States v. Alvarez-Macahin, 504 US 655 (1992).
140
Associate Justice Ruth Bader Ginsburg
That point was well stated by Columbia University
Professor Louis Henkin, 90 a principal drafter of the
current Foreign Relations Restatement. He wrote:
[I]n a world of states, the United States is not in a
position to secure the rights of all individuals
everywhere, [but] it is always in a position to
respect them. Our federal government must not
invade the individual rights of any human being.
The choice in the Bill of Rights of the word
"person" rather than "citizen" was not fortuitous;
nor was the absence of a geographical limitation.
Both reflect a commitment to respect the
individual rights of all human beings.
Returning to my main theme, I will describe more
particularly the Supreme Court's most recent decisions
involving foreign or international legal sources as an aid
to the resolution of constitutional questions. In a
headline 2002 decision, Atkins v. Virginia, 91 a sixmember majority (all save the Chief and Justices Scalia
and Thomas) held unconstitutional the execution of a
mentally retarded offender. The Court noted that "within
the world community, the imposition of the death penalty
for crimes committed by mentally retarded offenders is
universally disapproved." The following 2002-2003
Term was appraised as pathmarking. New York Times
reporter Linda Greenhouse observed on July 1, 2003, in
her annual roundup of the Court's decisions: The Court
has "displayed a [steadily growing] attentiveness to legal
90
Regarding Louis Henkin, see supra note 70, to Address by Justice
Sandra Day O’Connor.
91
536 U.S. 304 (2002).
Selected Speeches
141
developments in the rest of the world and to the [C]ourt's
role in keeping the United States in step with them." 92
Among examples I would include the Michigan
University affirmative action cases decided on June 23,
2003. In separate opinions, joined in one case by Justice
Breyer, in the other in full by Justice Souter and in part
by Justice Breyer, I looked to two United Nations
Conventions: the 1965 International Convention on the
Elimination of all Forms of Racial Discrimination, which
the United States has ratified; and the 1979 Convention
on the Elimination of All Forms of Discrimination
Against Women, which, sadly, the United States has not
yet ratified. Both Conventions distinguish between
impermissible policies of oppression or exclusion, and
permissible policies of inclusion, "temporary special
measures aimed at accelerating de facto equality." The
Court's decision in the Michigan Law School case, I
observed, "accords with the international understanding
of the [purpose and propriety] of affirmative action."
A better indicator from the same Term, because it
attracted a majority, is Justice Kennedy's opinion for the
Court in Lawrence v. Texas, announced June 26, 2003. 93
Overruling the Court's 1986 decision in Bowers v.
Hardwick, 94 Lawrence declared unconstitutional a Texas
statute prohibiting two adult persons of the same sex
from engaging, voluntarily, in intimate sexual conduct.
On the question of dynamic versus static, frozen-in-time
92
Linda Greenhouse, The Supreme Court Overview: In a
Momentous Term, Justices Remake the Law and the Court, N.Y.
TIMES, July 1, 2003, at A1.
93
539 U.S. 558 (2003).
94
476 U.S. 186 (1986).
142
Associate Justice Ruth Bader Ginsburg
constitutional
instructs:
interpretation,
the
Court's
opinion
Had those who drew and ratified the Due Process
Clauses of the Fifth Amendment or the
Fourteenth Amendment known the components
of liberty in its manifold possibilities, they might
have been more specific. They did not presume to
have this insight. They knew times can blind us
to certain truths and later generations can see that
laws once thought necessary and proper in fact
serve only to oppress. As the Constitution
endures, persons in every generation can invoke
its principles in their own search for greater
freedom.
On respect for "the Opinions of [Human]kind," the
Lawrence Court emphasized: "The right the petitioners
seek in this case has been accepted as an integral part of
human freedom in many other countries." In support,
the Court cited the leading 1981 European Court of
Human Rights decision, Dudgeon v. United Kingdom,
and subsequent European Human Rights Court decisions
affirming the protected right of homosexual adults to
engage in intimate, consensual conduct.
In the 2003-2004 Term, foreign and international
legal sources again figured in several decisions. These
included, most notably, two June 2004 decisions. One,
Hamdi v. Rumsfeld, 95 concerned a U. S. citizen, held
incommunicado in a Navy brig in South Carolina
pursuant to an executive decree declaring him an "enemy
combatant." Ruling some six months before the Lords'
95
542 U.S. 507 (2004).
Selected Speeches
143
decision in the Belmarsh case, the Court held, 8-to-1,
that the petitioner was entitled, at least, to a fair
opportunity to contest the factual basis for his detention.
Even in "our most challenging and uncertain moments"
when "our Nation's commitment to due process is most
severely tested," Justice O'Connor wrote for a fourJustice plurality, "we must preserve our commitment at
home to the principles for which we fight abroad." "[A]
state of war," her opinion makes clear, "is not a blank
check for the President" to trample on the rights of
citizens. Indeed, "history and common sense teach us
that an unchecked system of detention carries the
potential to become a means of oppression and abuse."
The other "enemy combatant" case, Rasul v. Bush, 96
held that U. S. courts have jurisdiction to consider
challenges to the legality of the detention of foreign
nationals captured in hostilities abroad, then transported
to the U. S. naval base in Guantanamo Bay, Cuba. The
Supreme Court has so far written only chapter one on the
Guantanamo Bay incarcerations. The District Court for
the District of Columbia has split on chapter two. One
judge held that foreigners detained at Guantanamo Bay
could be granted no judicial relief. Another ruled that
the detainees were entitled to a fair hearing on the
question whether their incarceration comports with due
process requirements. Both cases are currently on appeal
to the Court of Appeals for the D. C. Circuit.
Last month's decision in Roper v. Simmons 97 presents
perhaps the fullest expressions to date on the propriety
and utility of looking to "the opinions of [human]kind."
Holding unconstitutional the execution of persons under
96
542 U.S. 466 (2004).
97
543 U.S. 551 (2005).
144
Associate Justice Ruth Bader Ginsburg
the age of 18 when they committed capital crimes, the
Court declared it fitting to acknowledge "the
overwhelming weight of international opinion against
the juvenile death penalty." Justice Kennedy wrote for
the Court that the opinion of the world community
provides "respected and significant confirmation of our
own conclusions." "It does not lessen our fidelity to the
Constitution," he explained, to recognize "the express
affirmation of certain fundamental rights by other
nations and peoples." That affirmation, he maintained,
"underscores the centrality of those same rights within
our own heritage of freedom."
Justice O'Connor, although she dissented from the
Court's categorical ruling, agreed with the Court on the
relevance of "foreign and international law to [our]
assessment of evolving standards of decency." The other
dissenters, for whom Justice Scalia spoke, vigorously
contended that foreign and international law have no
place in determining what punishments are "cruel and
unusual" within the meaning of our Eighth Amendment.
Recognizing that forecasts are risky, I nonetheless
believe we will continue to accord "a decent Respect to
the Opinions of [Human]kind" as a matter of comity and
in a spirit of humility. Comity, because projects vital to
our well being - combating international terrorism is a
prime example - require trust and cooperation of nations
the world over. And humility because, in Justice
O'Connor's words: "Other legal systems continue to
innovate, to experiment, and to find new solutions to the
new legal problems that arise each day, from which we
can learn and benefit."
In this regard, I was impressed by an observation
made in September 2003 by Israel's Chief Justice,
Aharon Barak. September 11, he noted, confronts the
United States with the dilemma of conducting a war on
Selected Speeches
145
terrorism without sacrificing the nation's most cherished
values, including our respect for human dignity. "We in
Israel," Barak said, "have our September 11, and
September 12 and so on." He spoke of his own Court's
efforts to balance the government's no doubt compelling
need to secure the safety of the State and of its citizens
on the one hand, and the nation's high regard for "human
dignity and freedom on the other hand." He referred,
particularly, to a question presented to his Court: "Is it
lawful to use violence (less euphemistically, torture) in
interrogat[ing] [a] terrorist in a 'ticking bomb' situation."
His Court's answer: No, "[n]ever use violence." He
elaborated:
[It] is the fate of a democracy [that] not all means
are acceptable to it, . . . not all methods employed
by its enemies are open to it. Sometimes, a
democracy must fight with one hand tied behind
its back. Nonetheless, it has the upper hand.
Preserving the rule of law and recognition of
individual liberties constitute an important
component of [a democracy's] understanding of
security. At the end of the day, [those values buoy
up] its spirit and strength [and its capacity to]
overcome [the] difficulties.
We live in an age in which the fundamental
principles to which we subscribe - liberty, equality, and
justice for all - are encountering extraordinary
challenges. But it is also an age in which we can join
hands with others who hold to those principles and face
similar challenges. May we draw inspiration from
Abigail Adams, who wrote to her son and future
President of the era in which he was coming of age:
146
Associate Justice Ruth Bader Ginsburg
These are the times in which a genius would wish
to live. It is not in the still calm of life, or the
repose of a pacific station, that great characters
are formed. The habits of a vigorous mind are
formed in contending with difficulties. 98
Author’s Notes
a
Judge Posner acknowledged that decisions elsewhere might have
informational value; they might be useful, he thought, if they
contain persuasive reasoning.
b
In the first case, Nippon Yusen Kaisha v. Karageorgis, decided a
month earlier, Lord Denning acknowledged that "[i]t ha[d] never
been the practice of the English Courts to seize assets of a defendant
in advance of judgment or to restrain the disposal of them." Noting
"that the practice on the Continent of Europe is different," he
concluded that "the time has come when we should revise our
practice."
98
See Ruth Bader Ginsburg, Looking Beyond Our Borders: The
Value of a Comparative Perspective in Constitutional Adjudication,
22 YALE L. & POL’Y REV. 329, 337 (2004).